[Cite as Quality Car & Truck Leasing, Inc. v. Pertuset, 2014-Ohio-1291.]


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

QUALITY CAR & TRUCK             :
LEASING, INC.,                  :
                                :
     Plaintiff-Appellee,        :   Case No. 13CA3565
                                :
     vs.                        :
                                :   DECISION AND JUDGMENT
CARL E. 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.

Chadwick K. Sayre, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

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

judgment denying Carl and Vera Pertuset’s, Appellants herein, motion to

vacate a prior grant of judgment on the pleadings in favor of Quality Car &

Truck Leasing, Inc., Appellee herein. On appeal, Appellants contend that

the trial court erred in their motion to vacate the July 11, 2011, judgment on

the pleadings, which we note has already been affirmed on appeal, without

remand, by this Court in Quality Car & Truck Leasing, Inc. v. Carl E.

Pertuset, et al., Scioto No. 11CA3436, 2013-Ohio-1964 (Pertuset I) on May
Scioto App. No. 13CA3565                                                                                     2


3, 2013. Because this Court has already affirmed the trial court’s grant of

judgment on the pleadings in favor of Appellees, and because Appellants’

current argument could and should have been raised as part of the direct

appeal, Appellants’ argument is barred by the doctrines of res judicata and

law of the case.

                                                 FACTS

         {¶2} This matter is now before us on appeal for a third time.1 As

such, we set forth the facts, as already stated in Pertuset I.

                  “Appellee commenced the instant action and alleged that

         appellants were in default of seven installment sales contracts

         used to purchase equipment. As a result of that default,

         appellees continued, it was entitled to recover the equipment

         pledged as security for those contracts. Appellants filed a

         ‘notice of appearance’ to which they attached copies of the

         summons and complaint with a stamp that stated ‘refused for

         cause consent not given permission denied.’

                  Appellee subsequently filed a Civ.R. 12(C) motion for

         judgment on the pleadings. Appellants did not respond to that
1
 While Pertuset I was pending on appeal, Appellants filed a series of motions in the trial court claiming
Appellees lacking standing and that the trial court lacked subject matter jurisdiction over the case. The trial
court denied Appellants’ motions and Appellants filed another appeal (Pertuset II). We, however,
administratively dismissed Pertuset II, citing the trial court’s lack of jurisdiction to rule on the motions
while Pertuset I was still pending in this Court. Quality Car and Truck Leasing v. McDermott Industries.
LLC, et al., 4th Dist. Scioto No. 12CA3518 (Jan. 10, 2013).
Scioto App. No. 13CA3565                                                        3


      motion, but, instead, filed a motion to dismiss and argued, inter

      alia, the failure to state a claim upon which relief could be

      granted, lack of jurisdiction and ‘fraud.’ After due

      consideration, the trial court granted appellees' motion for

      judgment on the pleadings.” Quality Car & Truck Leasing, Inc.

      v. Carl E. Pertuset, et al., supra, at ¶ 2-3.

      {¶3} Appellants filed an initial, direct appeal of the trial court’s

decision. In the first appeal, we construed Appellant’s pro se brief to argue

that the trial court erred by granting Appellee’s motion for judgment on the

pleadings. Id. at ¶ 4. We employed a de novo review and determined that

the trial court correctly granted Appellees’ motion for judgment on the

pleadings, issuing our decision on May 3, 2013. Thus, we affirmed the

decision of the trial court, without remand.

      {¶4} Just three days after this Court’s decision was issued, on May 6,

2013, Appellants filed a motion to vacate the judgment on the pleadings

granted July 11, 2011. In their motion, Appellants claimed they were

deprived of their right to due process when the trial court denied their

motion to dismiss and granted Appellees’ motion for judgment on the

pleadings the same day, without allowing Appellants fourteen days to file an

answer. Appellees opposed the motion and the trial court issued a judgment
Scioto App. No. 13CA3565                                                         4


entry on June 19, 2013, denying the motion. It is from this entry that

Appellants bring their current appeal, setting forth one assignment of error

for our review.

                           ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED IN DENYING APPELLANTS’
      MOTION TO VACATE THE JULY 11, 2011 JUDGMENT ON THE
      PLEADINGS.”

                             LEGAL ANALYSIS

      {¶5} In their sole assignment of error, Appellants contend that the trial

court erred in denying their motion to vacate. Although Appellants’ motion

is not titled as such, we construe it as a Civ.R. 60(B) motion for relief from

judgment and address it under that framework. “ ‘In an appeal from a Civ.R.

60(B) determination, a reviewing court must determine whether the trial

court abused its discretion.’ ” Harris v. Anderson, 109 Ohio St.3d 101,

2006-Ohio-1934, 846 N.E.2d 43, ¶ 7; quoting State ex rel. Russo v. Deters,

80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). An abuse of discretion

occurs when a decision is unreasonable, arbitrary, or unconscionable. State

ex rel. Tindira v. Ohio Police & Fire Pension, 130 Ohio St.3d 62, 2011-

Ohio-4677, 955 N.E.2d 963, ¶ 28.

      {¶6} “In order to prevail on a Civ.R. 60(B) motion for relief from

judgment, the movant must establish that ‘(1) the party has a meritorious
Scioto App. No. 13CA3565                                                         5


defense or claim to present if relief is granted; (2) the party is entitled to

relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3)

the motion is made within a reasonable time, and, where the grounds of

relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the

judgment, order or proceeding was entered or taken.’ ” Deters at 153-154;

quoting GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d

146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. “[R]elief is

inappropriate if any one of the three requirements is not satisfied.” Deters at

154; citing State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666

N.E.2d 1134 (1996).

      {¶7} “[T]o prevail on a motion for relief from judgment, the moving

party must establish that it has a meritorious defense or claim to present if

relief is granted. This requires the moving party to allege operative facts

‘with enough specificity to allow the trial court to decide whether he or she

has met that test.’ ” Byers v. Dearth, 4th Dist. No. 09CA3117, 2010-Ohio-

1988, ¶ 12; quoting Syphard v. Vrable, 141 Ohio App.3d 460, 463, 751

N.E.2d 564 (2001). “Ultimately, ‘a proffered defense is meritorious if it is

not a sham and when, if true, it states a defense in part, or in whole, to the

claims for relief set forth in the complaint.’ ” Spaulding-Buescher v. Skaggs

Masonry, Inc., 4th Dist. No. 08CA1, 2008-Ohio-6272, ¶ 10; quoting Amzee
Scioto App. No. 13CA3565                                                           6


Corp. v. Comerica Bank-Midwest, 10th Dist. No. 01AP-465, 2002-Ohio-

3084, ¶ 20.

      {¶8} Here, Appellants did not argue their motion to vacate in terms of

Civ.R. 60(B). Thus, they made no effort either below or on appeal to

demonstrate entitlement to relief under the rule. Rather, they argue that the

trial court erred in granting Appellee’s motion for judgment on the pleadings

the same day it denied Appellants’ motion to dismiss, without affording

Appellants fourteen days to answer, which they claim they were entitled to

under Civ.R. 12(A)(2). Appellants further claim that the trial court’s actions

deprived them of due process and prevented them from filing an answer.

What Appellants did not argue either below or on appeal, is what

meritorious defense they would have asserted if they had been permitted to

file an answer. Therefore, the defendants have not satisfied the meritorious

defense component of Civ.R. 60(B). Accordingly, the trial court did not

abuse its discretion by denying their motion to vacate the judgment.

      {¶9} The trial court provided no reasoning in support of its decision

denying Appellants’ motion below. We find, however, in addition to failing

to demonstrate the requirements for relief under Civ.R. 60(B), the trial court

was justified in reaching its decision on an additional basis, specifically, the

doctrines of law of the case and res judicata.
Scioto App. No. 13CA3565                                                        7


       {¶10} The underlying basis of Appellants’ motion to vacate is

Appellants’ argument that the trial court erred in granting judgment on the

pleadings in favor of Appellee. Appellants essentially claim that judgment

on the pleadings was premature, arguing they should have been entitled to an

additional fourteen days to file an answer after the trial court denied their

motion to dismiss, and that the trial court erred in immediately granting

Appellee’s motion upon denying Appellants’ motion to dismiss.

       {¶11} This argument could have and should have been raised as part

of Appellant’s first, direct appeal of this matter. The procedural facts of this

case and the manner in which the trial court issued its decision were

apparent at the time of the first appeal. Any argument related to Appellants

not being given time to answer were capable of being raised at that time.

Furthermore, this Court was squarely presented the question of whether the

trial court erred in granting judgment on the pleadings in the first appeal.

After employing a de novo review, and without giving any deference to the

decision of the trial court, we affirmed the decision of the trial court, without

remand. Quality Car & Truck Leasing, Inc. v. Carl E. Pertuset, et al., supra,

at ¶ 9 (Pertuset I).

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

the Supreme Court of Ohio discussed the doctrine of the law of the case
Scioto App. No. 13CA3565                                                        8


       “* * * 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.” (internal citations

      omitted).

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).

      {¶13} 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. Absent a remand from this Court after a decision on the merits, the trial

court lacked jurisdiction to vacate its own orders. 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
Scioto App. No. 13CA3565                                                        9


a Civ.R. 60(B) motion to vacate a judgment filed by Adrian Rawlins and

then granted Rawlins judicial release 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.

      {¶14} 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. 13CA3565                                                   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.

      {¶15} 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. 13CA3565                                                         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.

      {¶16} Further, 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 * * *.” 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 Appellants not

being afforded time to file an answer should have been apparent to the
Scioto App. No. 13CA3565                                                      12


parties and therefore was available to be pursued by the parties in the

original, direct appeal, but was not, any argument based thereon was barred

at any additional proceedings at the trial court level.

      {¶17} 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. See, Federal Home

Loan Mortgage Corporation v. Schwartzwald, et al, 134 Ohio St.3d 13,

2012-Ohio-5017, 979 N.E.2d 1214; Waterfall Victoria Master Fund Limited

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

Chemical Bank, N.A. v. Krawczyk, et al., 8th Dist. Cuyahoga No. 98263,

2013-Ohio-3614. Appellants’ brief references at least one of these cases,

though not at length. However, we find these cases distinguishable both

legally and factually from the situation presently before this Court. As such

they are inapplicable.

      {¶18} Based upon the foregoing, we cannot conclude that the trial

court erred or abused its discretion in denying Appellants’ motion to vacate

the July 11, 2011, grant of judgment on the pleadings in favor of Appellees,

which was previously affirmed on appeal, without remand, by this Court,

and which remains the law of the case. Further, as this Court did not remand
Scioto App. No. 13CA3565                                                       13


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 Appellants’ motion to vacate.

                                               JUDGMENT AFFIRMED.
Scioto App. No. 13CA3565                                                       14


                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellants.

      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.
