[Cite as Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 2017-Ohio-1500.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




SETTLERS WALK HOME OWNERS                              :
ASSOCIATION,
                                                       :           CASE NO. CA2016-09-082
        Plaintiff-Appellee,
                                                       :                   OPINION
    - vs -                                                                  4/24/2017
                                                       :
PHOENIX SETTLERS WALK, INC.,
et al.,                                                :

        Defendants-Appellants.                         :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 09 CV 76003



Scott G. Oxley, 325 North Main Street, Suite 204, Springboro, Ohio 45066, for plaintiff-
appellee, Settlers Walk Home Owners Association

Dinsmore & Shohl, LLP, Susan D. Solle, 1100 Courthouse Plaza SW, 10 North Ludlow
Street, Dayton, Ohio 45402, for defendant-appellant, Phoenix Settlers Walk, Inc.

Coolidge Wall Co., L.P.A., Patricia J. Friesinger, W. Chip Herin III, 33 West First Street, Suite
600, Dayton, Ohio 45402, for defendant, Phoenix Harbor Cove, Inc.

David P. Fornshell, Warren County Prosecuting Attorney, Christopher A. Watkins, 520
Justice Drive, Lebanon, Ohio 45036, for defendant, Jim Aumann, Warren County Treasurer



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Phoenix Settlers Walk, Inc. ("Phoenix"), appeals from a

decision of the Warren County Court of Common Pleas denying its motion to have final

judgment entered in its favor and against plaintiff-appellee, Settlers Walk Home Owners
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Association ("Settlers Walk HOA").1 For the reasons set forth below, we reverse the trial

court's decision and remand the matter for further proceedings consistent with this Opinion.

       {¶ 2} The facts pertinent to the present appeal were previously set forth by this court

in Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 12th Dist. Warren Nos.

CA2014-09-116, CA2014-09-117, and CA2014-09-118, 2015-Ohio-4821, and are hereby are

incorporated as follows:

               [Settlers Walk] is a large residential community located in
               Springboro, Warren County, Ohio that is divided into multiple
               smaller neighborhoods, such as the Cove and Stonebridge, which
               are subject to a declaration of covenants, conditions and
               restrictions, and reservation of easements (Declaration). It is
               undisputed that the Declaration was recorded with the Warren
               County Recorder's Office on February 5, 1996. * * *

               In early 2008, Martin-Coffman Development Company, Inc.
               (Martin-Coffman) sold approximately 50 of its lots located within
               the Settlers Walk residential community to Phoenix. Thereafter,
               on March 7, 2008, Phoenix took deeds to these various
               properties in lieu of foreclosure. It is undisputed that Martin-
               Coffman had not paid any assessments on the subject properties
               for the years 2003 through 2007. It is also undisputed that
               Settlers Walk HOA did not record any lien notice with the Warren
               County Recorder's Office with respect to Martin-Coffman's unpaid
               assessments.

               On December 17, 2009, Settlers Walk HOA filed a complaint
               against Phoenix seeking to collect on the unpaid assessments
               Martin-Coffman had not paid for the years 2005 through 2007, as
               well as those assessments Phoenix had not paid for the year
               2009. Settlers Walk HOA subsequently amended its complaint
               on two separate occasions seeking to collect additional unpaid
               assessments for the years 2003 through 2007 and 2009 through
               2013. Phoenix generally denied Settlers Walk HOA's claims
               made as part of its various complaints.

               On April 9, 2013, First Financial Bank, Settlers Walk HOA and
               Phoenix entered into an escrow agreement to facilitate the sale of
               a number of lots Phoenix owned within the Cove and Stonebridge
               neighborhoods. The escrow agreement states, in pertinent part
               [that] * * * "[i]n order to facilitate the sale of lots 21, 22, 36, 39, 38,
               37, (collectively, 'Stonebridge Lots') and lots 36, 76, 84, 86, 87,

1. Pursuant to Loc.R. 6(a), we hereby sua sponte remove this case from the accelerated calendar for the
purposes of issuing this opinion.
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88 ('Cove Lots') the parties to the Agreement have agreed to
escrow $30,789.00 with an Escrow Agent as hereinafter provided.
 * * * [Pursuant to this Agreement] [a]ll pre-2009 Settlers Walk
HOA fees and late charges in the total amount of $30,789.00 (the
'Escrow Funds') shall be withheld in escrow by Escrow Agent and
disbursed in accordance with the terms and conditions of this
Agreement [and] [a]ll 2009 and post-2009 Settlers Walk HOA
fees, late charges, and attorney fees in the total amount of
$64,003.00 shall be paid to Settlers Walk HOA." * * * After the
sale of these lots was completed, an additional sum slightly in
excess of $11,000.00 was then placed in escrow in order to
facilitate the sale of two more lots, thereby raising the total
amount held in escrow to $41,956.66.

On September 18, 2013, a one-day bench trial was held before a
magistrate. * * * Following trial, on January 13, 2014, the
magistrate issued a decision granting judgment to Settlers Walk
HOA. * * *

On March 18, 2014, the magistrate issued a supplemental
decision, wherein it found "[t]he $41,956.66 currently held in
escrow is ordered released to [Settlers Walk HOA] in partial
satisfaction of Phoenix's * * * personal liability." Phoenix and First
Financial Bank then filed objections to the magistrate's decision.
Settlers Walk HOA, however, did not file any objections.

On March 28, 2014 and June 3, 2014, the trial court issued
separate decisions overruling both Phoenix and First Financial
Bank's objections to the magistrate's decision. In so holding, the
trial court affirmed and adopted the magistrate's decision by also
concluding "Section 9.5 of the covenants creates a lien for unpaid
assessments, enforceable in rem against each lot owned by
Phoenix, and enforceable in personam against Phoenix for
assessments due since Phoenix took title." The trial court further
found that First Financial Bank was not entitled to any of the
$41,956.66 held in escrow. * * *

On June 6, 2014, the trial court issued a decision to correct an
oversight in its original decisions affirming and adopting the
magistrate's decision. As part of this amended decision, the trial
court reiterated that upon the sale of any of the subject property
owned by Phoenix, "First Financial Bank is entitled to have its lien
paid first as it holds first lien priority."

On August 6, 2014, the trial court entered a final judgment entry,
wherein it incorporated its earlier decisions and found in favor of
Settlers Walk HOA. Specifically, the trial court granted judgment
to Settlers Walk HOA "as against Phoenix 'in rem' only of a total
amount of $46,608.64" representing the unpaid assessments and
late fees for the years 2005 through 2007 and "as against
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              Phoenix 'in rem and in personam' for a total amount of
              $74,204.38" representing the unpaid assessments and late fees
              for the years 2009 through 2013. The trial court then ordered the
              $41,956.66 held in escrow be released to Settlers Walk HOA.

Settlers Walk at ¶ 2-10.

       {¶ 3} The parties appealed. Phoenix challenged the trial court's determination that

Settlers Walk HOA perfected an enforceable lien against the property that ran with the land

by recording the Declaration itself, without ever recording a separate instrument notifying any

potential bona fide purchaser that it had a lien on the property resulting from unpaid

assessments. This court found merit to Phoenix's assigned error, stating in relevant part:

              [T]he undisputed facts show that at the time the Declaration was
              recorded on February 5, 1996, there existed no actual lien upon
              the subject property as no assessment had been charged, much
              less stood unpaid or delinquent. In turn, although advocating for
              this court to affirm the trial court's decision, we find Settlers Walk
              HOA did not have a perfected and enforceable lien on the subject
              property that ran with the land merely by saying so as part of the
              recorded Declaration. Again, as the Ohio Supreme Court has
              stated, "there can be no lien unless there is a debt[.]" Choteau,
              [Merle & Sandford v. Thompson & Campbell], 2 Ohio St. [114],
              124 [(1853)]. Therefore, in accordance with the provisions found
              in R.C. 5301.25(A), once the assessments went unpaid and a
              debt was established, Settlers Walk HOA should have recorded a
              separate instrument with the county recorder to perfect its lien
              and provide notice to any subsequent bona fide purchaser that it
              had a lien on the subject property. Settlers Walk HOA simply did
              not do that here.

              ***

              In light of the foregoing, we find the trial court erred by finding
              Settlers Walk HOA perfected an enforceable lien against the
              subject property by simply recording the Declaration itself without
              ever recording a separate instrument notifying any potential bona
              fide purchaser that it had a lien on the property resulting from the
              unpaid assessments. The trial court, therefore, erred by requiring
              Phoenix to pay any unpaid assessments and late fees imposed
              for the years 2005 through 2007 prior to Phoenix purchasing the
              subject property in 2008.          Accordingly, Phoenix's single
              assignment of error is sustained and the trial court's decision
              holding otherwise is reversed.



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                                                                      Warren CA2016-09-082

Settlers Walk at ¶ 19, 26. We also addressed, and found to be without merit, errors assigned

by Settlers Walk HOA and First Financial Bank. Id. at ¶ 28-40. We therefore "affirmed in

part and reversed in part" the judgment of the trial court. Id. at ¶ 41. The Judgment Entry

accompanying our opinion provided, in relevant part:

              The assignments of error properly before this court having been
              ruled upon, it is the order of this court that the judgment or final
              order appealed from be, and the same hereby is, affirmed in part
              and reversed in part according to law and consistent with the
              Opinion filed the same date as this Judgment Entry.

              It is further ordered that a mandate be sent to the Warren County
              Court of Common Pleas for execution upon this judgment and
              that a certified copy of this Judgment Entry shall constitute the
              mandate pursuant to App.R. 27.

Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 12th Dist. Warren Nos.

CA2014-09-116, CA2014-09-117, and CA2014-09-118 (Nov. 23, 2015) (Judgment Entry).

       {¶ 4} Settler's Walk appealed this court's decision to the Ohio Supreme Court, which

declined jurisdiction. On March 9, 2016, Phoenix filed a "Motion for Court to Enter Final

Judgment Entry Consistent with Court of Appeals November 23, 2015 Decision," seeking to

have the trial court enter judgment in its favor for the assessments, late fees, and attorney

fees erroneously awarded to Settlers Walk HOA. Settler's Walk HOA opposed the motion,

arguing that Phoenix's failure to post a cash bond or a supersedeas bond to prevent it from

executing on the trial court's final judgment entry made the issue moot. On April 26, 2016,

Phoenix filed a "Renewed Motion to Enter Final Judgment," raising the same arguments set

forth in is March 9, 2016 motion.

       {¶ 5} On July 5, 2016, a magistrate issued a decision denying Phoenix's motion. In

his opinion, the magistrate noted that "[n]either the opinion of the Court of Appeals, nor its

judgment entry in this matter, contain an order of remand instructing the trial court to enter a

judgment in [Phoenix's] favor. * * * In the absence of an order remanding this case to the

Court with instructions, this Court lacks jurisdiction to take further action. Accordingly, the
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motion is overruled."

       {¶ 6} Phoenix filed objections to the magistrate's decision, arguing that the trial court

was required to comply with or "execute on" the November 23, 2015 judgment entry and

mandate rendered by this court. On August 23, 2016, the trial court overruled Phoenix's

objections and adopted the magistrate's decision finding that it lacked jurisdiction to take

further action. In adopting the magistrate's decision, the court stated:

              Upon review of this case, it is clear the Twelfth District
              determined this Court erred in requiring Phoenix to pay unpaid
              assessments and late fees imposed for the years 2005 through
              2007. However, the appellate court does not then remand this
              matter to this Court directing that those unpaid assessments and
              late fees voluntarily paid by Phoenix in an effort to facilitate the
              sale of subject properties should now be returned to Phoenix.
              The Twelfth District's decision is decidedly silent on this issue.
              Though Phoenix believes the appellate court was "well aware"
              Phoenix was "forced" to "pay assessments for all of the sold lots"
              prior to this Court's judgment entry, this Court is not so
              omnipotent. Without a remanding instruction from the Twelfth
              District on this case, this Court will not order the return of these
              assessments and late fees that were paid by Phoenix through a
              negotiated agreement by the parties to facilitate the sale of the
              subject properties."

       {¶ 7} Phoenix appealed from the trial court's decision, raising as its sole assignment

of error the following:

       {¶ 8} THE TRIAL COURT ERRED IN DECLINING TO ENTER JUDGMENT IN

ACCORDANCE WITH THIS COURT'S OPINION AND MANDATE.

       {¶ 9} Phoenix contends the trial court erred when it concluded it was without

jurisdiction to grant its motion and enter judgment in its favor. Phoenix argues this court's

prior decision in Settlers Walk, 2015-Ohio-4821, contained a "mandate specifically ordering

the trial court to execute on its judgment" by rendering judgment in Phoenix's favor. Relying

on the law-of-the-case doctrine, Phoenix claims the trial court was bound to adhere to this

court's decision in Settlers Walk, and that the trial court's failure to do so has "converted" this

court's prior decision into an improper advisory opinion.
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        {¶ 10} Settlers Walk HOA, on the other hand, contends the trial court properly denied

Phoenix's motion as there was no remand instruction in our prior opinion. It asserts that had

"the Court of Appeals * * * intended for the trial court to have further proceedings in the

litigation * * * than this Court of Appeals would have instructed the trial court to do so." It also

sets forth arguments that Phoenix's failure to post a cash bond or a supersedeas bond to

prevent Settlers Walk HOA from executing on the trial court's final judgment entry prevents it

from seeking to recover funds "voluntarily paid" to Settlers Walk HOA.2

        {¶ 11} "The judgment of the reviewing court is controlling upon the lower court as to

all matters within the compass of the judgment." State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978). The law-of-the-case doctrine

"provides that the decision of a reviewing court in a case remains the law on the legal

questions involved for all subsequent proceedings in the case at both the trial and reviewing

levels." Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

        {¶ 12} This court previously determined that judgment in Settlers Walk HOA's favor

was improper, and that it was not entitled to unpaid assessments and late fees imposed for

the years 2005 through 2007. Specifically, we stated:

                 [W]e find the trial court erred by finding Settlers Walk HOA
                 perfected an enforceable lien against the subject property by
                 simply recording the Declaration itself without ever recording a
                 separate instrument notifying any potential bona fide purchaser
                 that it had a lien on the property resulting from the unpaid
                 assessments. The trial court, therefore, erred by requiring
                 Phoenix to pay any unpaid assessments and late fees imposed
                 for the years 2005 through 2007 prior to Phoenix purchasing the
                 subject property in 2008.

Settlers Walk, 2015-Ohio-4821 at ¶ 26. We therefore reversed the trial court's judgment as it



2. The narrow issue before this court is whether the trial court had jurisdiction following this court's decision in
Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 12th Dist. Warren Nos. CA2014-09-116,
CA2014-09-117, and CA2014-09-118, 2015-Ohio-4821. We therefore find it unnecessary to address Settlers
Walk HOA's arguments regarding the effect of Phoenix's failure to file a supersedeas bond as such arguments
are not relevant to the issue of the trial court's jurisdiction to comply with our earlier mandate.
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                                                                       Warren CA2016-09-082

related to Settlers Walk. Id. at ¶ 26, 41. In rendering judgment, we made a technical mistake

in omitting to state that "the matter was remanded for further proceedings." This mistake,

however, indicated nothing with respect to the trial court's jurisdiction. See O'Neill v.

Mayberry, 6th Dist. Wood No. WD-08-077, 2009-Ohio-1123, ¶ 18 (finding that "the absence

of language specifically remanding the case to the trial court was a technical mistake and

indicated nothing with respect to the trial court's jurisdiction" and that such mistake could be

corrected with an order of errata).

       {¶ 13} App.R. 12(A)(1)(c) requires an appellate court to rule on each assignment of

error presented unless that assignment is moot. An appellate court shall "[r]eview and affirm,

modify, or reverse the judgment or final order appealed from." App.R. 12(A)(1)(a). "When a

court of appeals determines that the trial court committed error prejudicial to the appellant

and that the appellant is entitled to have judgment or final order rendered in his favor as a

matter of law, the court of appeals shall reverse the judgment or final order of the trial court

and render the judgment or final order that the trial court should have rendered, or remand

the cause to the court with instructions to render such judgment or final order." App.R. 12(B).

In "all other cases" where prejudicial error has been found, other than those reversed as

against the manifest weight of the evidence, "the judgment or final order of the trial court shall

be reversed and the cause shall be remanded to the trial court for further proceedings."

(Emphasis added.) App.R. 12(D).

       {¶ 14} Here, the November 23, 2015 Judgment Entry, which constituted the mandate

pursuant to App.R. 27, stated that "the judgment or final order appealed from be, and the

same hereby is, affirmed in part and reversed in part according to law and consistent with the

Opinion filed the same date as this Judgment Entry." Pursuant to App.R. 12, as this court did

not render judgment in favor of Phoenix as a matter of law, then the matter should have been

specifically remanded to the trial court. See O'Neill at ¶ 18; App.R. 12. Consequently, this

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court is issuing an order of errata contemporaneously with this decision to correct the opinion

and Judgment Entry in Settlers Walk, 2015-Ohio-4821, to the extent that ¶ 41 of Settlers

Walk shall be corrected to state the following: "Judgment affirmed in part and reversed in

part, and the matter remanded for further proceedings." The Judgment Entry accompanying

our decision in Settlers Walk, 2015-Ohio-4821, dated November 23, 2015, shall be corrected

to add that "the matter is remanded for further proceedings" and will now provide, in relevant

part, as follows:

              The assignments of error properly before this court having been
              ruled upon, it is the order of this court that the judgment or final
              order appealed from be, and the same hereby is, affirmed in part,
              reversed in part, and the matter remanded for further proceedings
              according to law and consistent with the Opinion filed on
              November 23, 2015.

       {¶ 15} Therefore, having concluded that our technical mistake of omitting the word

"remanded" did not deny the trial court jurisdiction, we sustain Phoenix's sole assignment of

error. The trial court's decision finding it lacked jurisdiction to consider Phoenix's "Motion for

Court to Enter Final Judgment Entry Consistent with Court of Appeals November 23, 2015

Decision" is reversed. This matter is remanded for the trial court to consider the merits of

Phoenix's motion and to comply with the holding of our prior decision in Settlers Walk, 2015-

Ohio-4821.

       {¶ 16} Judgment reversed and the matter remanded for further proceedings.


       RINGLAND and PIPER, JJ., concur.




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