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Dean v. Grange Mutual Casualty Co.2/28/2005
s' decision became final. "In the absence of a remand, the fact that a subsequent decision of the supreme court is handed down on the same subject is immaterial to issues which have been finally resolved." Morton, supra, at 321.
{ } In the matter currently before this court, appellant maintains our remand to the trial court amounted to nothing more than performing an administrative or ministerial act because our finding that appellant was entitled to coverage was a determination of law. Thus, appellant concludes the remand was solely for the trial court to apply this court's mandate which had become final when the Ohio Supreme Court refused to accept American National's appeal. As such, appellant maintains the trial court was not permitted to reconsider the coverage issue in light of Galatis.
{ } We disagree with this argument. As explained by the Ohio Supreme Court in Cleveland Elec. Illuminating Co. v. Pub. Utilities Comm. of Ohio (1976), 46 Ohio St.2d 105, 110, a "remand" is:
{ } "* * * to send back to the original tribunal for further proceedings, generally upon orders or directions from the higher court. When a court acts to remand a cause, it is not itself finally determining the outcome of the cause, nor is it executing a judgment in favor of one of the parties. The judgment is given legal effect when it is executed by the lower tribunal, and the judgment as rendered is that of the tribunal to which the cause had been remanded. [Citation omitted.]"
{ } Further, in Frate v. Al-Sol, Inc. (Nov. 24, 1999), Cuyahoga App. No. 76526, the Eighth District Court of Appeals stated the importance of a trial court's entry of judgment upon remand from the trial court. The court explained " he filing of a mandate is not a final appealable order of the common pleas court but is a directive from this court [court of appeals] to the common pleas court to 'proceed as if the final order, judgment, or decree had been rendered in it.' Any other conclusion would allow this court [court of appeals] to review its own decision, an obviously improper result." Id. at 3.
{ } As noted above, the trial court, in the case sub judice, never entered a final judgment pursuant to our mandate upon remand. Instead, the trial court stayed our mandate while American National appealed this matter to the Ohio Supreme Court. Therefore, until the trial court executed the judgment, pursuant to our remand, the judgment was not final and the doctrine of res judicata inapplicable.
{ } Appellant's sole assignment of error is overruled.
{ } For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J., Gwin, P. J., and Farmer, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
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