[Cite as Huntington Natl. Bank v. Bywood, Inc., 2015-Ohio-4927.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
HUNTINGTON NATIONAL BANK                            :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee         :       Hon. Craig R. Baldwin, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 15 CAE 03 0026
BYWOOD, INC., ET AL                                 :
                                                    :
                 Defendants-Appellants              :       OPINION




CHARACTER OF PROCEEDING:                                Civil appeal from the Delaware County
                                                        Court of Common Pleas, Case No. 12 CJ
                                                        57033

JUDGMENT:                                               Affirmed

DATE OF JUDGMENT ENTRY:                                 November 23, 2015

APPEARANCES:

For Plaintiff-Appellee Huntington Bank                  For Appellant Buckeye State Wholesale

THOMAS MERRY                                            STEPHEN MOYER
BETH MILLER                                             9 East Kossuth Street
110 Polaris Parkway, Ste. 302                           Columbus, OH 43206
Westerville, OH 43082
Delaware County, Case No. 15 CAE 03 0026                                               2

Gwin, P.J.

      {¶1}     Appellant appeals the February 24, 2015 and March 10, 2015 judgment

entries of the Delaware County Court of Common Pleas.

                                  Facts & Procedural History

      {¶2}     On November 20, 2012, plaintiff-appellee Huntington National Bank

("Huntington") obtained a judgment against Ashraf Ettayem ("Ettayem") and Bywood,

Inc. in the Franklin County Court of Common Pleas.           Huntington transferred the

judgment to Delaware County by filing a praecipe for a certificate of judgment lien on

December 4, 2012.      In 2014, Huntington filed a writ of execution pursuant to R.C.

2329.09 seeking to have the sheriff levy it upon Ettayem's personal property to satisfy

the judgment.     The sheriff seized Ettayem's 2004 Mercedes Benz ("the vehicle")

pursuant to the writ of execution on May 29, 2014.

      {¶3}     Ettayem requested an exemption hearing and an oral hearing was held

before a magistrate on June 13, 2014, at which time Ettayem asserted for the first time

he had sold the vehicle.    Ettayem testified that he pawned the vehicle at Buckeye

Pawnshop dba Autopawn USA ("Autopawn") in 2012, in exchange for a loan of

$15,000.     A replacement certificate of title was issued on January 4, 2012, noting

Autopawn's lien. Autopawn maintained possession of the vehicle and the title until

December 12, 2013, when Ettayem redeemed the vehicle for $15,754.             Autopawn

completed the lien discharge section on the front of the title, indicating Ettayem's

obligation had been paid in full. Autopawn released the vehicle and the title to Ettayem.

On the same day, Ettayem sold the vehicle to appellant Buckeye Wholesale, Inc.

("BSW") for $20,000.
Delaware County, Case No. 15 CAE 03 0026                                                   3


        {¶4}   A few days after the sale, BSW requested the sale of the vehicle be

cancelled. Ettayem agreed to cancel the transaction, but did not have the $20,000

available to return to BSW. BSW allowed appellant to pay $3,000, with the agreement

Ettayem would repay the $20,000 by August of 2014.                Ettayem completed the

assignment on the back of the title of the vehicle and gave the title to BSW as security.

Ettayem maintained physical possession of the vehicle.            BSW never obtained a

certificate of title issued in its name. Ettayem is listed as the owner of the vehicle in the

original title dated December 31, 2003 and the replacement title that was issued in

2012.

        {¶5}   The magistrate issued a decision on July 7, 2014, finding Ettayem owned

the vehicle, the vehicle was subject to execution by Huntington, and Ettayem was

entitled to an exemption of $3,450.        Ettayem filed objections to the magistrate's

decision. BSW filed a motion to intervene on August 19, 2014, claiming that it was the

title owner of the vehicle. On September 16, 2014, the trial court overruled Ettayem's

objections to the magistrate's decision, adopted the magistrate's decision, and denied

BSW's motion to intervene. Ettayem filed a notice of appeal of the trial court's judgment

entry adopting the magistrate's decision on September 23, 2014 and BSW filed a notice

of appeal of the trial court's judgment entry denying their motion to intervene on October

15, 2014. BSW's appeal of the denial of the motion to intervene was dismissed by this

Court on January 23, 2015 for want of prosecution.

        {¶6}   On October 31, 2014, BSW filed a demand for R.C. 2329.84 determination

of claimant's rights. The trial court scheduled the matter for a jury trial on December 18,

2014. On December 17, 2014, the trial court entered a judgment entry vacating its
Delaware County, Case No. 15 CAE 03 0026                                                4


previous jury trial entry and setting a briefing schedule. The judgment entry specifically

states that the jury trial was vacated "with the consent of Buckeye State Wholesale by

Attorney Moyer" and that "Plaintiff and Buckeye State Wholesale consented to this

matter being submitted for the Court's determination on summary judgment." BSW filed

a renewed motion to intervene on December 18, 2014. The trial court granted BSW's

motion on December 30, 2014 and gave BSW until January 13, 2015 to file a third-party

complaint. BSW did not file its complaint by January 13, 2015.

       {¶7}   On December 30, 2014, Huntington filed a motion for summary judgment

on the R.C. 2329.84 demand and BSW filed a memorandum contra on January 13,

2015. On January 22, 2015, BSW filed a motion for leave, instanter, seeking leave to

file its third-party complaint. The trial court denied BSW's motion for leave on February

24, 2015. On March 10, 2015, the trial court granted Huntington's motion for summary

judgment, finding Ettayem owned the vehicle.

       {¶8}   On June 29, 2015, this Court issued an opinion in Huntington National

Bank v. Ettayem, 5th Dist. Delaware No. 14 CAE 09 0058, 2015-Ohio-2645. In that

opinion, Ettayem argued that the trial court erred in concluding that he was the owner of

the vehicle and that it was subject to execution. We affirmed the judgment entry of the

trial court finding that Ettayem owned the vehicle, the vehicle was subject to execution

by Huntington, and Ettayem was entitled to an exemption of $3,450. The opinion states

as follows:

       [A] certificate of title was never issued in the name of BSW. The fact BSW

       was holding the certificate of title as security does not change the actual

       ownership of the vehicle. We find when BSW and Appellant [Ettayem]
Delaware County, Case No. 15 CAE 03 0026                                                  5


       agreed to rescind the sale, the parties were restored to their original

       positions, and legal ownership of the Vehicle remained with Appellant

       [Ettayem].

       {¶9}   BSW appeals the judgment entries of the Delaware County Court of

Common Pleas and assigns the following as error:

       {¶10} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING

PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

       {¶11} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

INTERVENOR-APPELLANT'S MOTION FOR LEAVE TO FILE ITS THIRD PARTY

COMPLAINT INSTANTER.

       {¶12} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

FAILED TO HAVE A JURY DETERMINE INTERVENOR-APPELLANT'S INTEREST IN

THE VEHICLE."

       {¶13} Huntington filed a motion to dismiss the instant appeal as moot because

the vehicle was sold at auction to a third-party during the pendency of this appeal

pursuant to a writ of execution. On April 25, 2015, the trial court granted BSW a stay of

execution conditioned upon the posting of a $9,000 bond; however, BSW failed to post

the required bond.    On September 4, 2015, Huntington filed a praecipe for writ of

execution directing the sheriff to advertise and sell the vehicle. Huntington filed a notice

of execution of sale of personal property and a notice of filing affidavit of publication.

The sheriff sold the vehicle on September 25, 2015. The sheriff filed the motor vehicle

bill of sale with sheriff's return on September 28, 2015, evidencing that the vehicle had

been sold to a third-party for a purchase price of $13,500. The sheriff filed a report of
Delaware County, Case No. 15 CAE 03 0026                                                 6


distribution of sale proceeds on October 5, 2015 and stated that the sheriff had

disbursed the sale proceeds of $13,500. Huntington seeks to supplement the record

with this information, in addition to our opinion in Huntington National Bank v. Ettayem,

5th Dist. Delaware No. 14 CAE 09 0058, 2015-Ohio-2645.

      {¶14} Upon review, we grant Huntington's motion to supplement the record. The

documents are relevant to the above-captioned appeal and are contained in the record.

      {¶15} Further, we agree with Huntington that the instant appeal is moot. See

Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 (1990); Hagood v. Gail, 105

Ohio App.3d 780, 664 N.E.2d 1373 (11th Dist. 1995). BSW, in its R.C. 2329.84 action,

requested the trial court determine ownership of the levied property (the vehicle). In its

summary judgment entry, the trial court determined that Ettayem owned the vehicle and

it was subject to execution by Huntington. This Court found that Ettayem was the legal

owner of the vehicle. The vehicle has been sold at execution sale and the proceeds

were distributed by the sheriff. Thus, the order granting summary judgment has been

satisfied and carried out, leaving BSW with no relief. The stay did not become operative

because BSW failed to post the supersedeas bond as required by the trial court's

judgment entry.

      {¶16} Additionally, even if the instant appeal is not moot, we find that BSW's

assignments should be overruled based upon the law of the case doctrine. In Nolan v.

Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), the Ohio Supreme Court addressed the

doctrine of the law of the case and stated that, "* * * [T]he 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." The law of the case
Delaware County, Case No. 15 CAE 03 0026                                                 7


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." Acuity, Inc. v. Trimat Constr., 4th Dist.

Gallia No. 07CA2, 2007-Ohio-6894.

      {¶17} In our previous case, Huntington National Bank v. Ettayem, 5th Dist.

Delaware No. 14 CAE 09 0058, 2015-Ohio-2645, Ettayem argued that BSW, the

appellant in this case, was the rightful owner of the vehicle, not him. However, we

rejected Ettayem's argument and found that Ettayem was the owner of the vehicle. We

further affirmed the magistrate and trial court's decision finding that the vehicle was

subject to execution by Huntington.      In this case, BSW appealed: the trial court's

determination that Ettayem, not BSW, is the owner of the vehicle; the denial of a motion

to intervene wherein BSW argued that it was the legal owner of the vehicle; and the

alleged failure of the trial court to empanel a jury to determine ownership of the vehicle.

Pursuant to the law of the case doctrine, our previous determination that Ettayem is the

owner of the vehicle remains law of the case for this subsequent proceeding.

Accordingly, BSW's assignments of error are overruled.
Delaware County, Case No. 15 CAE 03 0026                                       8


      {¶18} Based upon the foregoing, the judgment entries of the Delaware County

Court of Common Pleas are affirmed.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
