[Cite as Am. Savs. Bank v. Pertuset, 2014-Ohio-1290.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

AMERICAN SAVINGS BANK,          :
FSB, et al.,                    :
                                :
     Plaintiff-Appellee,        :   Case No. 13CA3564
                                :
     vs.                        :
                                :   DECISION AND JUDGMENT
CARL PERTUSET, et al.,          :   ENTRY
                                :
     Defendants-Appellants.     :   Released: 03/27/14
_____________________________________________________________
                            APPEARANCES:

Bruce M. Broyles, The Law Office of Bruce M. Broyles, Boardman, Ohio,
for Appellants.

Jeffrey B. Sams, Pickerington, Ohio, and Joshua D. Howard, Portsmouth,
Ohio, for Appellee, American Savings Bank.1
_____________________________________________________________

McFarland, J.

           {¶1} This is an appeal from a Scioto County Common Pleas Court

summary judgment in favor of American Savings Bank, fsb (American) and

ASB Development Corp. (ASB), collectively referred to as “American,”

plaintiffs below and Appellees herein, on their foreclosure claims against

Carl E. Pertuset and Vera M. Pertuset, defendants below and appellants

herein. On appeal, Appellants contend that the trial court erred in granting


1
    Farm Credit Services of Mid-America PCA has not filed a brief and is not participating on appeal.
Scioto App. No. 13CA3564                                                       2


Appellees’ renewed motion for summary judgment, which was granted after

the trial court vacated its original grant of summary judgment, which this

Court had previously affirmed on appeal, without a remand.

      {¶2} In light of our determination that the trial court lacked

jurisdiction to vacate its original summary judgment grant and decree in

foreclosure in favor of American, we find that it exceeded its authority in

doing so. We must, therefore, reverse the trial court’s decision vacating

those prior orders as well as trial court’s order granting American’s renewed

motion for summary judgment. As such, we find, in accordance with our

prior decision rendered in American Savings Bank, fsb, et al. v. Carl E.

Pertuset, et al., 4th Dist. Scioto No. 11CA3442, 2013-Ohio-566, that the

original grant of summary judgment and decree in foreclosure stands valid

as the law of the case, as affirmed once already by this Court. Accordingly,

the referenced decisions of the trial court are reversed.

                                    FACTS

      {¶3} We initially set forth the facts, as already stated in or prior

decision regarding this matter.

             “Between 2000 and 2008, appellants executed and

      delivered three promissory notes to American and one

      promissory note to ASB. Appellants also executed mortgages
Scioto App. No. 13CA3564                                                  3


      on properties to secure the notes. Appellees commenced the

      instant action on May 20, 2010 and alleged appellants were in

      default on the notes and sought, inter alia, foreclosure of their

      mortgage interests. Appellants answered, but their answer did

      not address the merits of the claims. Rather, they requested a

      dismissal of the case because the United States Bankruptcy

      Court had discharged their debts. Later, the parties learned that

      the bankruptcy proceedings had been dismissed, so the matter

      proceeded accordingly.

            Appellees eventually requested summary judgment and

      argued that no genuine issues of material fact existed and they

      were entitled to judgment as a matter of law. Appellees

      supported their motion with an affidavit from Jack Stephenson,

      Vice President of American and an employee of ASB, who

      attested (1) to the amounts due and owing on the notes, (2) that

      the instruments attached to the complaint as exhibits are true

      and accurate copies, and (3) that his employers still hold the

      notes. Appellants filed a ‘response’ and ‘notice of non

      acceptance and notice of non consent’ and raised a number of

      defenses.
Scioto App. No. 13CA3564                                                       4


             Subsequently, the trial court granted the motion and

      directed the appellees to submit an entry to the court. * * *”

      American Savings Bank, fsb, et al. v. Carl E. Pertuset, et al., ¶

      2-4.

      {¶4} After the court filed a decree of foreclosure on August 9, 2011,

an initial direct appeal followed. Appellant’s initial appeal of this matter

alleged that the trial court had erred in granting summary judgment in favor

of American because American failed to conclusively establish they were

the proper party in interest and that they failed to establish privity with

Appellants. They also argued the trial court erred in granting summary

judgment in favor of American, claiming that American had failed to

conclusively establish the amount of their damages. While this matter was

initially pending on appeal, the property sold to third party buyers at a

sheriff’s sale held on November 14, 2012. This Court issued a decision on

the merits affirming the trial court’s grant of summary judgment and decree

in foreclosure on February 5, 2013.

      {¶5} Subsequently, on February 28, 2013, American filed a motion to

vacate the trial court’s January 10, 2011, summary judgment grant as well as

its August 9, 2011, decree in foreclosure, based upon its concern regarding a

potential procedural issue regarding the filing of the final judicial report
Scioto App. No. 13CA3564                                                                                     5


being filed after the final judgment entry, rather than before, as required by

R.C. 2329.191. Appellants joined in this motion, but for different reasons,

claiming that the trial court lacked subject matter jurisdiction. The trial

court denied Appellants’ motion, but filed a judgment entry on March 4,

2013, granting American’s motion and vacating its own original grant of

summary judgment and decree in foreclosure, after this Court had already

affirmed both of the those decisions on direct appeal.

         {¶6} After the trial court vacated these decisions, American filed a

renewed motion for summary judgment, and Appellants followed with

additional discovery requests, motions for extensions of time to conduct

discovery and a motion to compel discovery. Finally, on June 19, 2013,

over the objection of Appellants, the trial court once again granted summary

judgment in favor of American.2 The matter is now before us for a second

time, with Appellants once again claiming that the trial court erred in

granting summary judgment.

                                  ASSIGNMENT OF ERROR

“I.      THE TRIAL COURT ERRED IN GRANTING SUMMARY
         JUDGMENT.”




2
  The trial court’s June 19, 2013, grant of summary judgment was not a final, appealable order as it did not
also order foreclosure of the properties at issue. However, in light of our determination that the trial court
lacked jurisdiction to issue this order to begin with, we find this issue to be inconsequential.
Scioto App. No. 13CA3564                                                        6


                             LEGAL ANALYSIS

      {¶7} In their sole assignment of error, and much like in their first

appeal of this matter, Appellants contend that the trial court erred in granting

summary judgment in favor of American. In raising this assignment of

error, Appellants argue that American failed to satisfy the conditions

precedent to filing suit by failing to provide them notice of default and

notice of acceleration. Appellants also argue that American failed to comply

with discovery and as such, the trial court should not have granted summary

judgment. However, before we reach the merits of Appellants’ argument,

we must address a threshold procedural matter.

      {¶8} As set forth above, the question of whether the trial court

properly granted summary judgment and a decree in foreclosure in favor of

American has already been before this Court on direct appeal. Further, as

we have noted, this Court has previously affirmed the trial court’s January

10, 2011, grant of summary judgment and August 9, 2011, decree in

foreclosure. American Savings Bank, fsb, et al. v. Carl E. Pertuset, et al.,

supra. Despite our affirmance on appeal without remand, the trial court, at

the request of the parties, vacated its summary judgment grant and decree in

foreclosure. Based upon the following, we conclude that the trial court

exceeded its authority in doing so and, as such, its actions were contrary to
Scioto App. No. 13CA3564                                                        7


the law of the case, as established in this Court’s prior decision regarding

this matter.

      {¶9} In Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), the

Supreme Court of Ohio discussed the doctrine of the law of the case in

relation to a trial court’s failure to execute a remand mandate given by a

reviewing court. Specifically, Nolan involved a trial court’s complete

restructuring of a real estate settlement on remand, rather than limiting its

action on remand to making findings regarding the right of occupancy of the

marital home, as instructed by the reviewing court. Nolan at 2. In response,

the Supreme Court of Ohio held that “[a]bsent extraordinary circumstances,

such as an intervening decision by the Supreme Court, an inferior court has

no discretion to disregard the mandate of a superior court in a prior appeal in

the same case.” Nolan at syllabus (internal citations omitted). In reaching

its decision, the Nolan court discussed the law of the case doctrine as

follows:

      “* * * the doctrine provides that the decision of a reviewing

      court in a case remains the law of that case on the legal

      questions involved for all subsequent proceedings in the case at

      both the trial and reviewing levels.” Nolan at 3 (internal

      citations omitted).
Scioto App. No. 13CA3564                                                        8


The Nolan court further noted that while the rule will not be applied to

achieve unjust results, the application of the rule is necessary “to ensure

consistency of results in a case” as well as “to avoid endless litigation by

settling the issues, and to preserve the structure of superior and inferior

courts as designed by the Ohio Constitution.” Id.; citing Gohman v. St.

Bernard, 111 Ohio St. 726, 730-731, 146 N.E. 291 (1924) (reversed on other

grounds) and State, ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391

N.E.2d 343 (1979).

      {¶10} We find the reasoning set forth in Nolan with respect to the

doctrine of the law of the case to be applicable to the matter presently before

us, where the trial court vacated two orders previously affirmed by this

Court on appeal. In fact, we find this doctrine even more compelling

considering the trial court vacated these orders absent a remand from this

Court. Simply put, absent a remand from this Court after a decision on the

merits, the trial court lacked jurisdiction to vacate its own orders.

      {¶11} In reaching this result, we rely on the reasoning set forth not

only in Nolan v. Nolan, supra, but also our prior reasoning in State of Ohio,

ex rel. Jim Petro v. Marshall, 4th Dist. Scioto No. 05CA3004, 2006-Ohio-

5357. In that case, the trial court granted a Civ.R. 60(B) motion to vacate a

judgment filed by Adrian Rawlins and then granted Rawlins judicial release
Scioto App. No. 13CA3564                                                          9


from prison, despite the fact that this Court had previously affirmed

Rawlins’ conviction and sentence on appeal, without a remand. Id. at ¶ 4.

As a result of the trial court’s actions, the Attorney General filed a complaint

for a writ of prohibition, alleging that the trial court lacked jurisdiction to

vacate Rawlins’ conviction. Id. at ¶ 1. This Court granted the writ,

reasoning that “Judge Marshall patently and unambiguously lacked

jurisdiction to entertain the motion after this court had expressly ruled on the

same issues the motion presented.” Id. In reaching our decision, we

reasoned as follows:

      “Civ.R. 60(B) clearly gives the trial court jurisdiction to grant

      relief from a final judgment. However, once a party undertakes

      an appeal and absent a remand, the trial court is divested of

      jurisdiction to take any action that is inconsistent with the

      appellate court's exercise of jurisdiction. Post v. Post (1990), 66

      Ohio App.3d 765, 769, 586 N.E.2d 185; State ex rel. Special

      Prosecutors, supra, at 97, 378 N.E.2d 162.” Id. at ¶ 27.

      {¶12} As we discussed in State, ex rel. Petro v. Marshall, the Special

Prosecutors case involved a trial court’s subsequent grant of a motion to

withdraw a guilty plea when the defendant “lost the appeal of a conviction
Scioto App. No. 13CA3564                                                   10


based upon the guilty plea.” Id. at ¶ 28. We noted that in Special

Prosecutors, the Supreme Court reasoned that

      “allowing the trial court to consider a Crim.R. 32.1 motion to

      withdraw a guilty plea subsequent to an appeal and affirmance

      by the appellate court ‘would affect the decision of the

      reviewing court, which is not within the power of the trial court

      to do.’ ” Id. at ¶ 29; citing Special Prosecutors at 97-98.

      {¶13} Although both State, ex rel. Petro v. Marshall and Special

Prosecutors both involved underlying criminal matters, we noted in State, ex

rel. Petro v. Marshall at ¶ 30 that the Supreme Court of Ohio has made a

similar rule concerning Civ.R. 60(B) motions. Specifically, we noted as

follows:

      “* * * absent a remand from the appellate court, ‘an appeal

      divests trial courts of jurisdiction to consider Civ.R. 60(B)

      motions for relief from judgment.’ See Howard v. Catholic

      Social Servs. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147,

      637 N.E.2d 890, 1994-Ohio-219, 637 N.E.3d 890, citing State,

      ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63

      Ohio St.3d 179, 181, 586 N.E.2d 105. See, also, Post, supra, at

      770, 586 N.E.2d 185. Once a case has been appealed, ‘the trial
Scioto App. No. 13CA3564                                                          11


      court is divested of jurisdiction except “over issues not

      inconsistent with that of the appellate court to review, affirm,

      modify or reverse the appealed judgment, such as the collateral

      issue like contempt * * *.” ’ State ex rel. State Fire Marshall v.

      Curl, 87 Ohio St.3d 568, 570, 2000-Ohio-248, [722] N.E.2d 73,

      quoting Special Prosecutors at 97, 378 N.E.2d 162. Where an

      appellate court has already ruled on an issue in a direct appeal,

      a trial court's ‘reconsideration’ of that same issue is inconsistent

      with the appellate court's exercise of jurisdiction and the

      doctrine of the law of the case. See, Hopkins v. Dyer, 104 Ohio

      St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, at ¶ 15.” Id.

      {¶14} Here, Appellants brought an initial direct appeal of the trial

court’s original grant of summary judgment and decree in foreclosure in

favor of American. We affirmed the trial court’s original grant of summary

judgment and decree in foreclosure without remand. Subsequent to the

issuance of our decision, the trial court vacated its own summary judgment

and foreclosure decisions, based upon a claim by one of the parties that there

was a potential procedural issue related to a late filing of the final judicial

report. We note at this juncture that this potential procedural issue should
Scioto App. No. 13CA3564                                                         12


have been apparent to the parties at the time of the original appeal and yet no

error was raised related to it.

      {¶15} As noted in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, ¶35, “[t]he law-of-the-case doctrine is rooted in

principles of res judicata and issue preclusion * * *.” Further, the Fischer

court noted that prior decisions have held that the law of the case doctrine “ ‘

precludes a litigant from attempting to rely on arguments at a retrial which

were fully pursued, or available to be pursued, in a first appeal.’ ” Id. at ¶

34; quoting Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405,

659 N.E.2d 781 (1996). Thus, because any issue related to the late filing of

the final judicial report should have been apparent to the parties and

therefore was available to be pursued by the parties in the original, direct

appeal, but was not, any argument based thereon should have been barred,

we believe, at any additional proceedings at the trial court level.

      {¶16} Recently, several Ohio courts have been confronted with

questions in the area of foreclosure law with respect to when a trial court

may vacate a prior judgment that was either not appealed, or was appealed

and resulted in an affirmance by the reviewing court. These questions seem

to stem from the recent holding of the Supreme Court of Ohio in the case of

Federal Home Loan Mortgage Corporation v. Schwartzwald, et al, 134
Scioto App. No. 13CA3564                                                         13


Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214. Schwartzwald did not

involve the grant or denial of a Civ.R. 60(B) motion for relief from

judgment. Rather, in Schwartzwald, it was argued by the homeowners that

the bank lacked standing to sue because it commenced the foreclosure action

before it obtained an assignment of the promissory note and mortgage

securing the Schwartzwald’s loan. Id. at ¶ 2. The trial court granted

summary judgment in favor of the bank and the appellate court affirmed.

The Supreme Court of Ohio, however, reversed, holding that the bank, under

the facts, had no standing to invoke the jurisdiction of the common pleas

court. Id. at paragraph one of the syllabus. In reaching its decision, the

Court noted that “ ‘the issue of standing, inasmuch as it is jurisdictional in

nature, may be raised at any time during the pendency of the proceedings.’ ”

Id. at ¶ 22; quoting New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216,

218, 513 N.E.2d 302 (1987).

      {¶17} A subsequent case, Waterfall Victoria Master Fund Limited v.

Yeager, et al., 11th Dist. Lake No. 2012-L-071, 2013-Ohio-3206, illustrates

how the Schwartzwald holding has been carried forward. In Yeager, a

complaint in foreclosure was filed and default judgment was granted in favor

of the bank. Id. at ¶ 2-4. Yeager filed a direct appeal, but the appellate court

affirmed the judgment in favor of the bank. Id. at ¶ 4. After Yeager’s home
Scioto App. No. 13CA3564                                                        14


sold at a sheriff’s sale, Yeager filed a Civ.R. 60(B) motion seeking relief

from the default judgment. Id. at ¶ 5. In support of the motion, Yeager

argued that the bank did not have any interest in the property at the time it

foreclosed. Id. The trial court denied the motion for relief from judgment

and Yeager appealed again. Id.

      {¶18} On appeal, the trial court analyzed the issues raised under a

Civ.R. 60(B) framework but then went into a law of the case/res judicata

analysis, noting the intervening Schwartzwald decision that was released

after the briefs had been filed. Id. at ¶ 8-13. The court construed Yeager’s

arguments on appeal as challenging the banks’ standing. Id. at ¶ 16. As

such, the court held neither res judicata nor the law of the case doctrine

barred consideration of the argument on appeal. Id. Nonetheless, however,

the court overruled Yeager’s argument on the merits, holding the bank had

established standing to sue at the trial court level. Id. at ¶ 17-19. The court

further held that Yeager’s additional argument, “inasmuch as [it did not]

affect Appellee’s standing to bring suit and invoke the jurisdiction of the

trial court,” was barred by res judicata because it was “an argument that

should have been and could have been previously raised.” Id. at ¶ 20.

      {¶19} Similar but not identical issues were addressed in Chemical

Bank, N.A. v. Krawczyk, et al., 8th Dist. Cuyahoga No. 98263, 2013-Ohio-
Scioto App. No. 13CA3564                                                     15


3614. In Krawczyk, summary judgment in favor of the bank was granted

and Krawczyk did not file an appeal. Id. at ¶ 5. Two months later,

Krawczyk filed a Civ.R. 60(B) motion for relief from judgment, arguing the

bank lacked standing. Id. at ¶ 6. The motion was denied by the trial court

and Krawczyk filed an appeal from the denial of the motion, again arguing

the bank lacked standing. Id. at ¶ 9. The appellate court, however, found no

merit in Krawczyk’s argument, affirming the trial court’s decision finding

the bank demonstrated standing below, and noting that Krawczyk was

attempting to use “a motion for relief from judgment as a substitute for a

timely filed appeal.” Id. at ¶ 10.

      {¶20} Noting Krawczyk had failed to initially appeal, the court noted

“a defendant’s relief from final judgment is to timely file an appeal.” Id. at ¶

17. As the issue of standing was directly litigated in the trial court and

Krawczyk failed to appeal that decision, the court held Krawczyk’s

arguments were barred by res judicata. Id. at ¶ 22. In reaching its decision,

the court distinguished the situation from the facts in Schwartzwald. Id. at ¶

23. Specifically, the court commented that, even with respect to the issue of

standing, saying the issue of standing can be raised at any time does not

equate to “the issue of standing can be raised many times.” Id. at ¶ 29.
Scioto App. No. 13CA3564                                                           16


Finally, the Krawczyk court noted as follows regarding the holding in

Yeager:

      “The lead opinion in Yeager affirms the decision based on a

      Civ.R. 60(B) analysis, the concurring-in-judgment-only opinion

      affirms based on res judicata, and the dissent would reverse the

      trial court’s decision and allow the appellants the opportunity to

      challenge the assignment of the note and/or mortgage.”

      Krawczyk at ¶ 30, FN. 4.

Clearly, Yeager was a divided decision. However, the division of the court

in that case illustrates the varied bases for the decisions issued in response to

these types of issues, and the number of legal grounds that are implicated

when a case comes before a court with such a procedural history.

      {¶21} Based upon the foregoing, we conclude that the trial court’s

actions in vacating its prior decisions were inconsistent with this Court’s

appellate jurisdiction in affirming those decisions previously on appeal.

Further, as this Court did not remand the case to the trial court after our

affirmance on appeal, and the reasons advanced in support of the motion to

vacate did not raise the issue of standing or otherwise invoke the jurisdiction

of the trial court, the trial court was divested of jurisdiction to consider the
Scioto App. No. 13CA3564                                                                               17


parties’ motions to vacate and/or for relief from judgment.3 As the trial

court lacked jurisdiction to vacate its prior orders, it exceeded its jurisdiction

in doing so.

        {¶22} Accordingly, the decision of the trial court vacating American’s

original grant of summary judgment and decree in foreclosure, as well the

decision granting American’s renewed motion for summary judgment is

reversed. Further, we find, in accordance with our prior decision rendered in

American Savings Bank, fsb, et al. v. Carl E. Pertuset, et al., 4th Dist. Scioto

No. 11CA3442, 2013-Ohio-566, that the original grant of summary

judgment and decree in foreclosure stands valid as the law of the case, as

affirmed once already by this Court.

                                                              JUDGMENT REVERSED.




3
  Although Appellee’s motion below was not expressly titled as a Civ.R. 60(B) motion below, it was for all
intents and purposes a Civ.R. 60(B) motion and we treat it as such.
Scioto App. No. 13CA3564                                                       18


                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE REVERSED and Appellants
recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.


                                 For the Court,


                           BY: ___________________________________
                               Matthew W. McFarland, Judge




                           NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
