Giancola v. Azem (Slip Opinion)

[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

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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.

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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-

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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

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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.

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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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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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