         [Cite as Cincinnati v. Harrison, 2017-Ohio-7580.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



CITY OF CINCINNATI, OHIO,                         :          APPEAL NO. C-160581
                                                             TRIAL NO. A-0900755
         Plaintiff-Appellee,                      :

   vs.                                            :             O P I N I O N.

CITY OF HARRISON, OHIO,                           :

         Defendant-Appellant,                     :

   and                                            :

BOARD OF COUNTY                                   :
COMMISSIONERS OF HAMILTON
COUNTY, OHIO,

         Defendant.                               :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: September 13, 2017


Frost Brown Todd LLC, Douglas R. Dennis, Rebecca J. Dussich and Christopher S.
Habel, for Plaintiff-Appellee,

Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for
Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}     In 2009, plaintiff-appellee, the city of Cincinnati, sought declaratory

and injunctive relief to prevent defendant-appellant, the city of Harrison, Ohio, from

providing water service to customers in disputed areas of western Hamilton County,

Ohio. See generally Cincinnati v. Harrison, 1st Dist. Hamilton No. C-130195, 2014-

Ohio-2844, ¶ 3 et seq. Following a remand from this court, Harrison appeals from the

trial court’s June 8, 2016 entry of “final judgment.” But because the trial court’s entry

of “final judgment” was contrary to the law of the case and was not a final order, we

must dismiss the appeal.

       {¶2}     In March 2013, the trial court issued a detailed, five-page decision

resolving the parties’ cross-motions for summary judgment on Cincinnati’s claims for

relief. Harrison appealed asserting, inter alia, that as a political subdivision it was

immune from awards of money damages. See id. at ¶ 17.

       {¶3}     In June 2014, we affirmed the trial court’s judgment in part, reversed it

in part on Harrison’s sovereign-immunity defense, and concluded that certain aspects

of the trial court’s summary-judgment entry “not touching on immunity, including the

measure of restitution and fees, the proper timing and scope of the injunctive relief, and

the award of other relief sought under count one of the amended complaint, were not

yet final orders and thus were not yet appealable.” Id. at ¶ 45.

       {¶4}     We held that the trial court’s orders not touching on immunity were

“‘tentative, informal, or incomplete’ and [were] subject to change or reconsideration

upon the trial court’s own motion.” Id. at ¶ 48, quoting Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because the trial court’s

orders not touching immunity contemplated further action, they were not final. We




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                     OHIO FIRST DISTRICT COURT OF APPEALS



concluded that “[o]nly after the trial court has resolved these matters and has entered a

final judgment [would] they be ready for appellate review.” Id.

       {¶5}    When the matter returned to the common pleas court, the case was

reassigned to a different judge of that court. The new trial judge placed two substantive

entries on the court’s journal. The first was a scheduling order setting the case for a

bench trial. The second was a two-paragraph document captioned “Final Judgment

Entry,” the document from which Harrison has sought this appeal.

       {¶6}    In the June 8, 2016 entry, the trial court acknowledged that in our June

2014 decision, this court had “ruled”      that the trial court’s orders “not touching

immunity” remained “ ‘tentative, informal, or incomplete’ and * * * subject to change or

reconsideration upon the trial court’s own motion.”        Nonetheless the trial court

“decline[d] to change or reconsider those elements of the [trial court’s March 2013

judgment entry], ‘not touching immunity.’ ” The court then purported to enter “final

judgment.” We note that the trial court’s entry failed to implement any changes to its

prior ruling on issues such as money damages and fees, that were in conflict with this

court’s June 2014 decision. Harrison appealed.

       {¶7}    Because an appellate court’s jurisdiction is limited to review of final

judgments or orders, it must determine its own jurisdiction to proceed before reaching

the merits of any appeal. See Ohio Constitution, Article IV, Section 3(B)(2); see also

R.C. 2505.03(A); State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d

543, 544, 684 N.E.2d 72 (1997). And when the record certified for our review does not

contain a final appealable order, we must dismiss the appeal for lack of subject-matter

jurisdiction. See General Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540

N.E.2d 266 (1989).




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       {¶8}     The question of whether we have subject-matter jurisdiction to proceed

is resolved under the doctrine of the law of the case, which holds that a reviewing

court’s decision in a case remains the law of that case on the legal questions involved for

all subsequent proceedings in that case.        An inferior court has “no discretion to

disregard the 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. Application of the

doctrine “ensure[s] consistency of results in a case, * * * avoid[s] endless litigation by

settling the issues, and * * * preserve[s] the structure of superior and inferior courts as

designed by the Ohio Constitution.” Id. at 3, citing State ex rel. Potain v. Mathews, 59

Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).

       {¶9}     Here, neither party sought review of our June 2014 decision by means

of an appeal to the Ohio Supreme Court. Neither party added evidentiary material to

the record after remand to the trial court. The record certified for our review in this

appeal is factually and legally identical to that which we confronted in our June 2014

decision.

       {¶10}    Thus the trial court’s June 8 entry of “final judgment” was contrary to

the law of the case and to this court’s prior decision that those orders not touching

immunity were not final, and that further action by the court was required before they

could be considered final. See Nolan at 3; see also Cincinnati v. Harrison, 1st Dist.

Hamilton No. C-130195, 2014-Ohio-2844, at ¶ 48.

       {¶11}    With no final order in the record certified for our review under App.R.

9, we must dismiss the appeal. See General Acc. Ins. Co., 44 Ohio St.3d at 20, 540

N.E.2d 266.

                                                                       Appeal dismissed.

M YERS , J., concurs.
Miller, J., dissents.

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                      OHIO FIRST DISTRICT COURT OF APPEALS



Miller, J., dissenting.

       {¶12}    Sometimes, language used in court orders is unclear. But ambiguity

need not always be fatal. This entry appears to have been entered in an attempt to

strictly comply with our prior decision, as the parties argue. I would give the trial court

the benefit of the doubt, and afford the parties a decision on this dispute regarding

which entity (or both) has the authority to fulfill the important governmental role of

providing water and sewer services to the disputed areas.

       {¶13}    This eight-year-old case was decided on the merits by the trial court in

2013 on cross-motions for summary judgment. Or so the trial court thought. On the

city of Harrison’s appeal from that decision, we addressed Harrison’s immunity

defenses only. Harrison, 1st Dist. Hamilton No. C-130195, 2014-Ohio-2844, at ¶ 18-44.

We decided that Harrison was immune from any claim for damages, but not from

equitable and declaratory claims.

       {¶14}    We refused to consider whether the judgment in favor of Cincinnati on

the equitable and declaratory claims was proper because the trial court’s entry stated,

“The court reserves the right to provide further relief as it deems appropriate to

implement this decision.” Id. at ¶ 48. We found this language “contemplate[d] further

action” because it rendered the judgment “subject to change or reconsideration upon

the trial court’s own motion.” Id. Accordingly, we remanded.

       {¶15}    On remand, the trial court attempted to comply with our instructions by

stating that it “declines to change or reconsider” its decisions on the remaining claims

“and hereby enters final judgment.” It reiterated that its new entry “constitutes a final

judgment on all claims presented in this dispute.” The majority has interpreted this

language to mean that the 2013 entry has been left untouched.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16}    I read it differently, as do the parties. The trial court attempted to

comply with our instructions by using our language. When the trial court said it

declined to change or reconsider the remaining claims, it meant it was abandoning its

“right” to do so. It further demonstrated its abandonment by stating that it now was

entering final judgment on all claims. While the trial court could have prepared a more

thorough final entry restating the portions of the 2013 decision it declined to revisit, or

to specifically excise the offending language, what it did here was sufficient.

       {¶17}    Our 2014 decision also indicated that failure of the trial court to

determine “restitution and fees” awarded to Cincinnati as additional reasons the

decision was not final. However, we had also determined that all of the monetary and

attorney fee awards were barred by immunity. Moreover, restitution would have been

an alternative award to injunctive relief, not a cumulative award. There is no need for

restitution here because Cincinnati was afforded the right to provide the services, so it

is using its infrastructure and isn’t entitled to restitution.        Thus, the lack of a

“restitution and fees” award isn’t a basis to find the order not to be final now that the

trial court has released any rights it reserved to afford additional equitable relief.

       {¶18}    The issue of which city provides water to the areas in question is of

public importance. The question of whether the decision complies with R.C. 6103.04

needs to be answered. We should interpret the “Final Judgment Entry” as releasing

any rights the trial court reserved to afford additional equitable relief, and render a

decision on the merits.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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