[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694.]




                                            NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2018-OHIO-1694
    GIANCOLA,1 ADMR., APPELLEE, v. AZEM; WALTON MANOR HEALTH CARE
                               CENTER ET AL., APPELLANTS.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694.]
Judgments—Remand—Law-of-the-case doctrine—Only those legal questions
         resolved by a reviewing court are the law of a case—On remand, parties
         are returned to the same position they were in prior to the appeal.
       (No. 2016-1584—Submitted January 23, 2018—Decided May 3, 2018)
APPEAL from the Eighth District Court of Appeals, No. 102920, 2016-Ohio-5831.
                                  ____________________
         KENNEDY, J.
         {¶ 1} In this discretionary appeal from a judgment of the Eighth District
Court of Appeals, we consider the limitations of the law-of-the-case doctrine. The


1
 On March 18, 2014, while the case was pending in the Eighth District Court of Appeals, the
Cuyahoga County Court of Common Pleas granted a motion to substitute the proper party, Nathan
Giancola, a newly named administrator of the estate of Nicholas Giancola, because of the death of
Paulette Kolosai, the original administrator. Thus, Nathan Giancola has been substituted as a party.
                             SUPREME COURT OF OHIO




law-of-the-case doctrine provides that legal questions resolved by a reviewing court
in a prior appeal remain the law of that case for any subsequent proceedings at both
the trial and appellate levels. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410
(1984). The decision of the appellate court in the first appeal in this case was
limited to whether Nicholas Giancola’s mother had apparent authority to sign an
arbitration agreement on behalf of her son. Therefore, the law of the case from the
first appeal was not relevant in the second appeal, because on remand from the first
appeal, the trial court had relied on new evidence to decide that Giancola had signed
the arbitration agreement. We reverse the Eighth District’s judgment, which was
based on the law-of-the-case doctrine, and we remand the matter to that court for
review of the assignments of error that were not considered.
                                I. Case Background
                      A. First Proceeding in the Trial Court
       {¶ 2} Giancola was admitted to Walton Manor Health Care Center on
October 24, 2011. At the time of his admission, Giancola was suffering from
multiple serious medical conditions. An admission agreement and an arbitration
agreement were executed on October 28, 2011. Giancola remained at the care
center until December 15. He later passed away, on December 31, 2011. After his
death, Paulette Kolosai, the first administrator of Giancola’s estate, sued appellants,
Cleveland Healthcare Group, Inc., Saber Healthcare Group, L.L.C., and Saber
Healthcare Holdings, L.L.C. (collectively, “Walton Manor”), alleging both a
survival action and a wrongful-death action. Kolosai claimed that Giancola’s death
was caused by injuries that he sustained while he was at Walton Manor.
       {¶ 3} Walton Manor filed a motion to stay the civil proceedings and to
compel arbitration based on the terms of the arbitration agreement, arguing that
Giancola had entered into a binding arbitration agreement with Walton Manor.




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                                January Term, 2018




        {¶ 4} In opposition to the motion, Kolosai argued that the estate was not
bound by the arbitration agreement because Giancola had not signed it and that the
wrongful-death claim was not subject to arbitration. In support of her argument,
Kolosai offered the deposition testimony of a Walton Manor employee who
testified that Giancola’s mother had signed the agreement. The trial court found
that Giancola’s mother had signed the arbitration agreement and that she had had
apparent authority to bind her son to its terms. The trial court then granted Walton
Manor’s motion and ordered arbitration of the survival action. Kolosai appealed.
                            B. First Appeal: Kolosai I
        {¶ 5} In the first appeal, Kolosai argued that the trial court had erred in
finding that Giancola’s mother had apparent authority to bind Giancola to
arbitration.
        {¶ 6} Walton Manor countered that Giancola, not his mother, had signed
the arbitration agreement. Walton Manor attached documents to its brief that it
argued proved that Giancola had signed the agreement. Kolosai v. Azem, 8th Dist.
Cuyahoga No. 100890, 2014-Ohio-4474, ¶ 3 (“Kolosai I”). After acknowledging
that Walton Manor could not supplement the record on appeal, the appellate court
nevertheless noted that Walton Manor’s argument—that Giancola had signed the
agreement—was a concession that the trial court’s opinion was erroneous. Id. at
¶ 8. The court of appeals stated that it would not “affirm the court on a basis that
an appellee concedes is factually wrong.” Id. at ¶ 9.


               With Walton Manor being deemed to have withdrawn any
        argument that the court did not err by finding that the mother had
        apparent authority to bind Giancola to arbitrate any disputes arising
        from his care and treatment as a patient at the nursing home, we
        sustain the first assignment of error. The second assignment of error
        is moot.




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Id. at ¶ 10. Thereafter, the court of appeals reversed and remanded for further
proceedings consistent with its opinion. Id. at ¶ 11.
                    C. Second Proceeding in the Trial Court
        {¶ 7} On remand, Walton Manor renewed its motion to stay the proceedings
and submitted the supplemental documents previously presented to the court of
appeals, along with a report from a handwriting expert, Robert Kullman. Kolosai
responded by asserting that the law-of-the-case doctrine barred Walton Manor’s
argument, the supplemental documents were not new evidence under the Civ.R.
60(B)(2) standard for granting a new trial, Kullman’s report was not reliable, and
Walton Manor had waived its right to pursue arbitration by participating in
depositions on the merits of the matter prior to submitting its renewed motion for
arbitration.
        {¶ 8} Two months later, Walton Manor filed an affidavit signed by Kullman
in support of its renewed motion to stay and to compel arbitration. Following the
hearing on the motion, Kolosai moved to strike Kullman’s affidavit. The trial court
noted that its decision granting Walton Manor’s motion to stay and to compel
arbitration had been “reversed by the court of appeals.” It denied Kolosai’s motion
to strike, granted the renewed motion to stay, and referred the appropriate counts in
the complaint to arbitration, finding that “Nicholas Giancola signed the admission
agreement and acknowledgment regarding arbitration, and is, therefore, bound by
its terms.” Kolosai appealed.
                          D. Second Appeal: Kolosai II
        {¶ 9} In lieu of addressing the assignments of error presented, the appellate
court sua sponte raised the issue of the law-of-the-case doctrine. In a two-to-one
decision, the appellate court held that the trial court had violated the law-of-the-




                                          4
                                January Term, 2018




case doctrine when it reconsidered the issue of who had signed the arbitration
agreement.
       {¶ 10} Walton Manor filed a motion for reconsideration of that decision or,
in the alternative, an application for a rehearing en banc. Upon reconsideration, the
appellate court held that the law-of-the-case was established in Kolosai I: the
arbitration agreement could not be enforced under a doctrine of apparent authority.
2016-Ohio-5831 at ¶ 36 (“Kolosai II”). The court of appeals also held that the
handwriting expert’s report should not have been considered by the trial court
because “[t]he record does not support the assertion that the evidence was newly
discovered and could not have been discovered with due diligence.” Id. at ¶ 61. In
addition, the appellate court held that the trial court had exceeded the mandate of
the court of appeals in Kolosai I. Id. at ¶ 62. Walton Manor appealed.
                              E. Proposition of Law
       {¶ 11} Walton Manor presents one proposition of law in its memorandum
in support of jurisdiction. That proposition of law states:


               A trial court must have broad discretion to hear evidence and control
       its docket when addressing a case remanded for further proceedings and the
       law of the case doctrine shall be limited to legal issues and account for an
       expanded record containing new evidence to address factual issues on
       remand.


       {¶ 12} In its merit brief to the court, Walton Manor presents two
propositions of law. Because we accepted only the proposition of law presented in
Walton Manor’s jurisdictional memorandum, we decline to expand our review.




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                                II. Law and Analysis
        {¶ 13} The narrow issue before this court—whether the appellate court
properly applied the law-of-the-case doctrine—presents a question of law;
therefore, we apply a de novo review standard. Arnott v. Arnott, 132 Ohio St.3d
401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17.
        {¶ 14} The law-of-the-case doctrine has long existed in Ohio jurisprudence.
“ ‘[T]he 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.’ ” (Brackets sic.) Hopkins v. Dyer,
104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 15, quoting Nolan, 11
Ohio St.3d at 3, 462 N.E.2d 410. “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.”
Id.
        {¶ 15} Although the law-of-the-case doctrine generally is “a rule of practice
rather than a binding rule of substantive law,” Nolan at 3, we have also explained
that “the Ohio Constitution ‘does not grant to a court of common pleas jurisdiction
to review a prior mandate of a court of appeals.’ ” State ex rel. Cordray v. Marshall,
123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 32, quoting State ex rel.
Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979). The doctrine
therefore “functions to compel trial courts to follow the mandates of reviewing
courts,” Nolan at 3, and “[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,” id. at
the syllabus.
        {¶ 16} Accordingly, a trial court is without authority to extend or vary the
mandate issued by a superior court, id. at 4, and “where at a rehearing following
remand a trial court is confronted with substantially the same facts and issues as




                                           6
                                January Term, 2018




were involved in the prior appeal, the court is bound to adhere to the appellate
court’s determination of the applicable law,” id. at 3. However, as the United States
Supreme Court has explained, “[t]he doctrine of law of the case comes into play
only with respect to issues previously determined,” Quern v. Jordan, 440 U.S. 332,
347, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), fn. 18, and “ ‘[w]hile a mandate is
controlling as to matters within its compass, on the remand a lower court is free as
to other issues,’ ” id., quoting Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59
S.Ct. 777, 83 L.Ed. 1184 (1939).
       {¶ 17} Our decision in State ex rel. Baker v. State Personnel Bd. of Rev., 85
Ohio St.3d 640, 710 N.E.2d 706 (1999), is instructive here. In that case, the
personnel board of review found that two former public employees were
unclassified because they were fiduciaries to a county auditor under R.C.
124.11(A)(9) and were deputy auditors under R.C. 124.11(A)(4). Id. at 640. The
board did not address the auditor’s alternative argument that the former employees
were unclassified because they had an administrative relationship to the auditor
under R.C. 124.11(A)(9). Id. at 640-641. The common pleas court upheld the
board’s order, but the court of appeals reversed, concluding that neither the
fiduciary exemption nor the deputy-county-auditor exemption applied, and it
remanded the cause to the common pleas court for further proceedings. Id. In turn,
the common pleas court remanded the matter to the board to consider whether the
former employees were unclassified because they had an administrative
relationship to the auditor. Relying on the law-of-the-case doctrine, the former
employees sought a writ of prohibition from the court of appeals to prevent the
board from conducting those proceedings. Id. The court of appeals denied the writ,
and we affirmed, explaining that the board had not acted contrary to the mandate
of any superior tribunal, because the court of appeals had not “conclusively
determined” whether the administrative exemption was applicable. Id. at 643. For
this reason, the law-of-the-case doctrine did not preclude the board from resolving




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the dispute by considering the auditor’s alternative legal theory for the first time on
remand. Id. at 643-644.
           {¶ 18} In this case, the appellate court in Kolosai I did not conclusively
determine whether Giancola’s mother had signed the arbitration agreement,
because that opinion addressed the question whether Giancola’s mother had
apparent authority to sign the arbitration agreement on her son’s behalf. Kolosai I
at ¶ 10.
           {¶ 19} However, Walton Manor claimed that Giancola, not his mother, had
signed the arbitration agreement and sought to supplement the record with new
evidence supporting that argument. Id. at ¶ 3. Recognizing that “Walton Manor
[had] repudiated the rationale for the courtʼs decision to refer the matter to
arbitration,” Kolosai I at ¶ 6, the Eighth District concluded that the trial court erred
in enforcing the arbitration agreement under the theory that Giancola’s mother
signed the agreement with apparent authority because the “appellee [Walton
Manor] concedes [that that theory] is factually wrong.” Id. at ¶ 9. The appellate
court deemed Walton Manor “to have withdrawn any argument that the court did
not err by finding that the mother had apparent authority to bind Giancola to
arbitrate any disputes,” id. at ¶ 10, and it “reversed and remanded” the matter “to
the trial court for further proceedings consistent with [its] opinion,” id. at ¶ 11.
           {¶ 20} Although the appellate court declined to review Walton Manor’s
new evidence that Giancola had signed the arbitration agreement because it would
require the court to add matter to the record, it did not decide that Giancola had
signed the agreement or direct the trial court not to consider additional evidence
that would refute the administrator’s claim that the mother had signed the
agreement. And contrary to the appellate court’s assertion in Kolosai II, 2016-
Ohio-5831, at ¶ 36, Kolosai I did not order the trial court to place the matter on the
regular docket to proceed on the merits.




                                           8
                               January Term, 2018




       {¶ 21} Rather, “ ‘[u]pon remand from an appellate court, the lower court is
required to proceed from the point at which the error occurred.’ ” State ex rel.
Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 11,
quoting State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324
(1982). In this case, error occurred when the trial court granted the motion to stay
arbitration on the basis of Giancola’s mother’s apparent authority to bind her son.
By ordering a remand for “further proceedings,” the Eighth District returned the
parties to the same position they were in prior to the error, and nothing precluded
Walton Manor from reasserting its argument that Giancola had signed the
arbitration agreement or prevented the trial court from permitting the introduction
of new evidence to support that assertion.
                                 III. Conclusion
       {¶ 22} Only those legal questions resolved by a reviewing court are the law
of that case. Nolan, 11 Ohio St.3d at 3, 462 N.E.2d 410. Here, because the decision
in Kolosai I did not prevent Walton Manor from presenting new evidence as to
whether Giancola signed the arbitration agreement, the law-of-the-case doctrine
does not prevent the trial court on remand from considering that new evidence.
Accordingly, we reverse the Eighth District Court of Appeals’ judgment, and we
remand the cause for review of the assignment of errors presented by Kolosai that
were not addressed by the court of appeals.
                                                                Judgment reversed
                                                              and cause remanded.
       O’DONNELL, FRENCH, HALL, and DEWINE, JJ., concur.
       O’CONNOR, C.J., dissents, with an opinion joined by FISCHER, J.
       MICHAEL T. HALL, of the Second District Court of Appeals, sitting for
O’NEILL, J.
                                  _________________




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                              SUPREME COURT OF OHIO




       O’CONNOR, C.J., dissenting.
       {¶ 23} I dissent. I would dismiss this case as having been improvidently
accepted. I would further order that the opinion of the court of appeals may not be
cited as authority except by the parties inter se.
       FISCHER, J., concurs in the foregoing opinion.
                                    _________________
       DiCello, Levitt & Casey, Mark A. DiCello, Robert DiCello, and Justin J.
Hawal; and Marks, Balette, Giessel & Young, P.L.L.C., and Jacques G. Balette, for
appellee Nathan Giancola.
       Marshall, Dennehey, Warner, Coleman & Goggin, Leslie M. Jenny, Jason
P. Ferrante, and Teresa Ficken Sachs, for appellants, Cleveland Healthcare Group,
Inc., a.k.a. Walton Manor Health Care Center, Saber Healthcare Group, L.L.C., and
Saber Healthcare Holdings, L.L.C.
                                _________________




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