         [Cite as W2 Properties, L.L.C. v. Haboush, 2013-Ohio-2556.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO



W2 PROPERTIES LLC,                                :         APPEAL NO. C-120366
                                                            TRIAL NO. 09CV-02818
        Plaintiff,                                :

  vs.                                             :               O P I N I O N.

FRED HABOUSH,                                     :

        and                                       :

NAJAT EL-KEK, a.k.a.                              :
NAJAT HABOUSH,
                                                  :
      Defendants/Third-Party
      Plaintiffs-Appellants,                      :

vs.                                               :

SPRING VALLEY BANK,                               :

and                                               :

GERALD J. ROBINSON,                               :

        Third-Party             Defendants- :
        Appellees,
                                                  :
and
                                                  :
SCOTT W. BRAUER, et al.,

        Third-Party Defendants.                   :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 21, 2013
                    OHIO FIRST DISTRICT COURT OF APPEALS




Bart B. Sharkey, for Defendants/Third-Party Plaintiffs-Appellants,

Lindhorst & Dreidame, Co., L.P.A., Christopher H. Hurlburt and Gerald J.
Robinson, for Third-Party Defendants-Appellees.




Please note: this case has been removed from the accelerated calendar.




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F ISCHER , Judge.

       {¶1}    Fred and Najat Haboush appeal from the judgment of the Hamilton

County Municipal Court that dismissed their third-party claims for fraudulent

inducement against Spring Valley Bank and Gerald J. Robinson.        The trial court

initially had entered default judgment on those claims, and later had denied relief

from that judgment. We affirmed its denial with respect to all issues but damages,

holding that a hearing was required to determine the appropriate amount.         W2

Properties LLC v. Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, 962 N.E.2d 858

(1st Dist.) (Haboush I). On remand the trial court held a hearing on damages, but at

its conclusion, it dismissed the claims against Spring Valley Bank and Robinson. For

the following reasons, we hold that this was contrary to the law of the case, and we,

therefore, reverse the trial court’s judgment.

       {¶2}    Although we thoroughly discussed the background of this case in

Haboush I, we repeat the pertinent facts here to better explain our reasoning. W2

Properties LLC (“W2”) brought this action in forcible entry and detainer against the

Haboushes, alleging that they had breached a lease/option-to-buy agreement

concerning rental property that the Haboushes had once owned. In their answer, the

Haboushes disputed W2’s ownership of the property and the validity of the lease

agreement. The Haboushes also filed a counterclaim against W2 and a third-party

complaint against Spring Valley Bank, Robinson, and others, alleging that they had

fraudulently induced them to sell the property to W2 and enter into the lease

agreement.

       {¶3}    The trial court entered default judgment against Spring Valley Bank

and Robinson after they failed to answer or otherwise appear in the action, and




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                      OHIO FIRST DISTRICT COURT OF APPEALS



without holding a hearing, “awarded damages to each plaintiff against each defendant

in the amount of $15,000, calculated the total award as $30,000, and then ordered the

sum to be paid jointly and/or severally by the defendants.” Haboush I at ¶ 32.

       {¶4}     Spring Valley Bank and Robinson timely sought relief from that

judgment, but their motion was denied. On appeal to this court, we held that the

judgment was not void for defective service of process, and that the trial court had

not erred in denying relief from judgment under Civ.R. 60(B)(1)-(4). Id. at ¶ 19 and 25.

We concluded, however, that the trial court had abused its discretion in denying relief

from judgment under Civ.R. 60(B)(5) with respect to its award of damages, in part

because the trial court had not held a hearing on the issue. Id. at ¶ 33; see, e.g., L.S.

Indus. v. Coe, 9th Dist. No. 22603, 2005-Ohio-6736 (holding that “where the

determination of damages [for a default judgment] necessarily requires consideration

of information outside a written instrument, the trial court abuses its discretion in

failing to hold an evidentiary hearing to determine the exact amount of damages”). We,

therefore, remanded the cause to the trial court for a hearing on damages, but affirmed

its judgment in all other respects. Id. at ¶ 34.

       {¶5}     On remand, the trial court held an evidentiary hearing on damages

where it considered the testimony of Najat Haboush, her and Fred’s son Chad

Haboush, and appraiser Paul Wesselkamper. At its conclusion, the court announced:

               Based on the credibility of the witnesses that I’ve heard, I

               find that this was an arm’s-length transaction here

               between all the parties. And that I agree with what [one of

               the witnesses] said, that if the seller could have got more

               than $47,000, they would have gotten more than

               $47,000. This was an agreed upon price with both sides



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                receiving a benefit. The Haboushes got out from under

                the mortgage, and the property was transferred. It’s clear

                from all the paperwork here that this was a sale; the

                Haboushes in the settlement agreement, and the

                Settlement Statement, are referred to as “the seller.” The

                name on it – and it’s clear black and white. I don’t find

                that, therefore, that there were no damages here to the

                Haboushes; that they sold it at the price that they wanted

                to sell it at. So I rule in favor of Mr. Robinson and Spring

                Valley Bank.

T.p. 122-123.

       {¶6}     The trial court’s finding of no liability was borne out in its “amended

judgment entry,” which dismissed the claims against Spring Valley Bank and Robinson

with prejudice.     The Haboushes now appeal from that judgment, raising two

assignments of error.

       {¶7}     In their first assignment of error, the Haboushes argue that the trial

court erred in revisiting the issue of liability.        It is axiomatic that “[a]bsent

extraordinary circumstances * * * an inferior court has no discretion to disregard a

mandate of a superior court in a prior appeal in the same case.” Nolan v. Nolan, 11

Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus. “The doctrine is necessary to ensure

consistency of results in a case, to avoid endless litigation by settling the issues, and

to preserve the structure of superior and inferior courts as designed by the Ohio

Constitution.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d

329, ¶ 15. “Thus, where at a rehearing following remand a trial court is confronted

with substantially the same facts and issues as were involved in the prior appeal, the



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court is bound to adhere to the appellate court’s determination of the applicable law.

Moreover, the trial court is without authority to extend or vary the mandate given.”

(Internal citations omitted.) Nolan at 3-4.

       {¶8}     In Haboush I, we affirmed the trial court’s denial of relief from the

default judgment against Spring Valley Bank and Robinson as to all issues but

damages. Thus, when we remanded the cause to the trial court for the purpose of

determining damages, the issue of Spring Valley Bank’s and Robinson’s liability was

settled. See GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,

149-150, 351 N.E.2d 113 (1976) (“Regardless of whatever else may be said of a default

judgment, it is a judgment.      It is as good as any other judgment.       It is a final

determination of the rights of the parties.”).       Consequently, when the trial court

premised its finding of no damages on a lack of liability and dismissed the Haboushes’s

claims, the court acted without authority and contrary to the law of the case. We,

therefore, sustain the first assignment of error.

       {¶9}     In their second assignment of error, the Haboushes alternatively argue

that the trial court erred in denying their motion for a new trial under Civ.R. 59 for the

error raised in their first assignment. Given our disposition of that assignment, we

overrule this assignment. The judgment of the trial court is reversed, and this cause is

remanded for a determination of damages on the Haboushes’ claims against Spring

Valley Bank and Robinson.

                                                 Judgment reversed and cause remanded.


H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:
       The court has recorded its own entry this date.



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