Lj. Minor Corp. v. Breitenbach , 123 Ohio App. 3d 84 ( 1998 )

I respectfully dissent from the majority opinion regarding the first assignment of error. Because I would affirm the city's first assignment of error, the second would be moot.

First, I would note that the city refunded the principal amount of $164, 299 before the pretrial scheduled in the common pleas court. Before the briefs were due in the common pleas court and after the principal amount had been paid, Minor filed a motion in the Supreme Court to show cause why the Cleveland Tax Administrator should not be subject to civil contempt for failure to comply with the Supreme Court's judgment. The Supreme Court denied Minor's motion to show cause without opinion. See L.J.Minor Corp. v. Breitenbach (1997), 78 Ohio St. 3d 1514. 679 N.E.2d 309. Thus the Supreme Court had an opportunity to consider whether interest automatically attached as a matter of law.

The Supreme Court's earlier disposition of Minor's overpayment claim established the law of the case, setting all possible claims arising out of Minor's overpayment of taxes. The law-of-the-case doctrine precludes litigants from attempting to rely on arguments at retrial which were fully litigated, or could have been fully litigated, in a prior appeal. State ex rel. Dannaherv. Crawford (1997), 78 Ohio St. 3d 391, 394, 678 N.E.2d 549,652-653. The rule is necessary to ensure consistence of results in a case, to avoid endless litigation by setting the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. State ex rel. Potain v.Mathews (1979), 59 Ohio St. 2d 29, 32, 13 O.O.3d 17, 18-19,391 N.E.2d 343, 345. The rule applies upon remand from a reviewing court when a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal.Hawley v. Ritley (1988), 35 Ohio St. 3d 157, 519 N.E.2d 390.

In the case at bar, the Supreme Court's opinion does not mention interest on the overpayment:

"The judgment to the court of appeals is reversed, and the Cleveland Tax Administrator is hereby ordered to refund to Minor that portion of net-profit taxes paid by Minor to Cleveland for tax years 1984 through 1988 * * *."

By awarding interest to Minor on remand, the trial court exceeded the scope of the Supreme Court's mandate. It is well settled that, absent extraordinary circumstances, a lower court lacks the authority to modify the decision of a higher court.Nolan v. Nolan (1984), 11 Ohio St. 3d 1, 11 OBR 1, 462 N.E.2d 410. See, also, Dannaher, supra, Hawley, supra. In State ex rel. TRW,Inc. v. Jaffe (1992), 78 Ohio App. 3d 411, 604 N.E.2d 1376, a trial judge attempted to hold a hearing on fraud damages even though the mandate from the Supreme Court instructed him to determine only the issue of damages based on a claim for emotional distress. This court held that the trial judge exceeded the scope of the mandate of the Supreme Court.

This principle is also well settled in the federal courts. InBriggs v. Pennsylvania RR. Co. (1948), 334 U.S. 304,68 S. Ct. 1039, 92 L. Ed. 1403, the jury returned a verdict and awarded damages to the plaintiff, but the district court then dismissed the complaint for lack of jurisdiction. The court of appeals reversed and directed the district court to enter judgment on the verdict for the plaintiff. The district court did so, but also added interest from the date of the verdict to the date of the judgment, even though the court of appeals said nothing in its mandate about interest. The United States Supreme Court, vacating the district court's award of interest, explained that if there was no provision for interest in the judgment of the higher court, a lower court is without jurisdiction to award interest.

The federal courts have consistently held that the higher court must specifically provide for the calculation of interest in its mandate. For example, in Reaves v. Ole Man River Towing (C.A.5, 1985), 761 F.2d 1111, the district court entered judgment and awarded damages. The Fifth Circuit Court of Appeals upheld the finding, but remanded for recalculation of damages, without mentioning interest. On remand, the district court awarded interest only from the date of the postremand judgment. The plaintiff appealed. Citing Briggs, the Fifth Circuit stated:¹

"Long-standing precedent establishes that a district court possesses no authority upon remand to calculate postjudgment interest from a date before its postremand decision unless the mandate of the court of appeals directs otherwise." Id., at 1112. See, also, Roboserve, Inc. v. Kato Kagaku Co. (N.D.Ill. 1996),942 F. Supp. 1199, Bailey v. Chattem., Inc. (C.A.6, 1988),838 F.2d 149, Reeves v. Intern. Tel. Tel. (C.A.5, 1983), 705 F.2d 760, 751. Because the Ohio Supreme Court provided the mandate controlling the case at bar, neither the trial court nor this court can modify the award by adding interest.

Although these cases deal with the date of calculation of postjudgment interest, the underlying principle is applicable to the case at bar. The Supreme Court's judgment settled all possible claims arising out of Minor's overpayment of taxes. The judgment did not mention interest, nor did Minor raise the question of interest during the seven years of previous litigation. The common pleas court and the court of appeals, therefore, have no authority to alter the Supreme Court's mandate by awarding interest.

Applying the law-of-the-case doctrine in the case at bar is important to the principle of finality of judgments. By not raising the issue of interest throughout seven years of litigation until after the Supreme Court entered its judgment, Minor slept on its claim. In the interest of promoting certainty in judgments and honoring the separation of superior and inferior courts, I would bar Minor from recovering interest and affirm the first assignment of error.

¹ The court of appeals decided, however, that its original mandate was deficient in failing to award the plaintiff interest from the date of the district court's first judgment and modified its mandate accordingly. In the case at bar, the Supreme Court of Ohio had a similar opportunity, but declined to make use of the opportunity.