COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60168 ROBERT GREINER REALTY CO. : : JOURNAL ENTRY PLAINTIFF : v. : AND : DAVY, INC. : OPINION : DEFENDANT-THIRD PARTY : PLAINTIFF/APPELLANT : v. : : OSTENDORF-MORRIS CO. : : THIRD-PARTY DEFENDANT/ : APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-92909 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Third-Party Plaintiff/ Appellant, Davy Inc.: RICHARD CUSICK WILLIAM E. COUGHLIN CALFEE, HALTER & GRISWOLD 1800 SOCIETY BUILDING CLEVELAND, OHIO 44114 For Third-Party Defendant/ Appellee Ostendorf-Morris Company: JEFFREY R. APPELBAUM HAROLD W. HENDERSON THOMPSON, HINE AND FLORY 1100 NATIONAL CITY BANK BLDG. CLEVELAND, OHIO 44114 - 2 - SPELLACY,J., On June 12, 1985, plaintiff-Robert Greiner Realty Co. ("Greiner") filed a complaint against defendant/third party 1 plaintiff-appellant Davy, Inc. ("appellant-Davy, Inc."). In its complaint, Greiner alleged that it secured an interested buyer for appellant-Davy, Inc.'s commercial real property, and that negotiations over the purchase of said property ensued. However, Greiner claimed that appellant-Davy, Inc. breached an agreement with it and then conspired to sell the property to another buyer, in an attempt to willfully avoid paying the commission due to it. Greiner sought a partial brokerage commission and punitive damages. On July 24, 1985, appellant-Davy, Inc. filed an answer to Greiner's complaint and a counterclaim against Greiner. Appellant-Davy, Inc. denied Greiner's allegations set forth in its complaint. In its counterclaim, appellant-Davy, Inc. alleged that the institution of Greiner's first case, which was subsequently dismissed, was done with malice and without probable cause. On August 7, 1985, appellant-Davy, Inc. filed a third- party complaint against third-party defendant-appellee-Ostendorf- Morris Company ("appellee-O-M"). Appellant-Davy, Inc.'s third- party complaint was primarily for indemnity and breach of 1 Robert Greiner Realty Co. had previously filed a complaint on November 29, 1984 against Davy, Inc. and Ostendorf-Morris Company. However, it dismissed its case against both parties and then refiled the instant case. -3- contract under the parties' exclusive brokerage agreement. Appellant-Davy, Inc. also alleged negligence and negligent misrepresentation. On October 29, 1986, the trial court dismissed Greiner's complaint against appellant-Davy, Inc. with prejudice. However, appellant-Davy, Inc. informed the trial court that it intended to pursue its third-party complaint against appellee-O-M in order to recover attorney's fees and litigation expenses. Appellant- Davy, Inc. also indicated that it was going to pursue its counterclaim against Greiner. All parties filed motions for summary judgment. On January 6, 1988, the trial court granted Greiner's motion for summary judgment on appellant-Davy, Inc.'s counterclaim. The trial court concluded that appellant-Davy, Inc. failed to satisfy the seizure requirement in its claim for malicious prosecution and abuse of process. On the same date, the trial court denied appellant-Davy, Inc's corresponding motion for summary judgment against Greiner on the grounds that it was moot. On January 7, 1988, the trial court granted summary judgment in favor of appellee-O-M on appellant-Davy, Inc.'s third-party complaint. The trial court's journal stated as follows: "Davy's claim not being within the scope of par. 3.4 of the agreement and there being no duty on O-M to defend in the instant situation, O-M's motion for summary judgment is granted. Plaintiff's claims against Greiner do not arise out of its failure to be paid a commission for involvement in the Actual transfer or sale of the -4- property to the entity provided by plaintiff. Plaintiff's claim arises out of the failure to sell to its client, not the failure to receive a fee from the actual sale to CEI. As a matter of law Greiner's claims are not within the contract." The case proceeded to this court upon the separate appeal and cross-appeal of appellant-Davy, Inc. and Greiner, as well as upon appellant-Davy, Inc.'s appeal from the order granting summary judgment in favor of appellee-O-M. Just before oral arguments, the appeals between appellant-Davy, Inc. and Greiner were settled and dismissed. Thus, the appeal proceeded only as it pertained to the trial court's order granting appellee-O-M's motion for summary judgment. In Robert Greiner Realty Company v. Davy, Inc. (June 1, 1989) Cuyahoga App. No. 55160, unreported, this court dismissed the appeal for lack of jurisdiction pursuant to Civ. R. 54(B). This Court found that the trial court ruled upon only one respect of appellee-O-M's motion for summary judgment, that of indem- nity. Apparently, the trial court failed to adjudicate upon all aspects of appellee-O-M's motion for summary judgment, and its ruling did not render moot appellant-Davy, Inc.'s claims for negligence and negligent representation. Accordingly, this court vacated the dismissal of appellant-Davy, Inc.'s "entire third-party complaint" and remanded to the trial court to rule on appellee-O-M's motion for summary judgment in all respects that remained. -5- On August 22, 1989, the instant case was reinstated to the trial court's active docket and a pretrial was set for September 18, 1989. At the pretrial, the parties were instructed to file briefs regarding the scope of remand to the trial court. Subsequently, both appellant-Davy, Inc. and appellee-O-M filed briefs pertaining to the issues to be adjudicated on remand. On June 26, 1990, the trial court issued the following journal entry: Having carefully reviewed the briefs of the respective parties regarding the scope of the remand of this case, and having carefully reviewed this court's records on the matter, the court find (sic) that it fully intended, and in fact did, adjudicate all aspects of the summary judgment in Ostendorf-Morris' favor on the third- party complaint. Appellant-Davy, Inc. filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED IN REFUSING TO FOLLOW THIS COURT'S JUNE 13, 1989 MANDATE (WHICH VACATED "THE DISMISSAL OF THE 'ENTIRE THIRD-PARTY COMPLAINT'" AND REMANDED TO THE LOWER COURT TO ADJUDICATE ALL OF DAVY'S CLAIMS), WHERE THE TRIAL COURT MERELY RESTATED AND RE- ISSUED ITS ERRONEOUS JUDGMENT ENTRY. II. THE TRIAL COURT ERRED IN GRANTING OSTENDORF-MORRIS' MOTION FOR SUMMARY JUDGMENT, AND IN DISMISSING DAVY'S ENTIRE THIRD-PARTY COMPLAINT, WHERE THE THIRD-PARTY COMPLAINT CONTAINED OTHER CLAIMS IN ADDITION TO A CLAIM FOR CONTRACTUAL INDEMNITY AND WHERE THE TRIAL COURT HELD THAT INDEMNITY WAS UNAVAILABLE UNDER THE EXCLUSIVE BROKERAGE AGREEMENT. III. THE TRIAL COURT ERRED IN GRANTING OSTENDORF-MORRIS' MOTION FOR SUMMARY -6- JUDGMENT, AND IN DISMISSING DAVY'S THIRD-PARTY COMPLAINT, WHERE A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO THE PARTIES' INTENT CONCERNING THE MEANING OF THE INDEMNITY PROVISION OF THE EXCLUSIVE BROKERAGE AGREEMENT. IV. THE TRIAL COURT ERRED IN GRANTING OSTENDORF-MORRIS' MOTION FOR SUMMARY JUDGMENT, AND IN DISMISSING DAVY'S THIRD-PARTY COMPLAINT, WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO DAVY'S CONTRACTUAL INDEMNIFICATION, BREACH OF CONTRACT, NEGLIGENT MISREPRESENTATION, NEGLIGENCE AND COMMON LAW AND STATUTORY CONTRIBUTION AND INDEMNIFICATION CLAIMS AGAINST OSTENDORF-MORRIS. In its first assignment of error, appellant-Davy, Inc. contends that the trial court failed to comply with this court's mandate. Appellant-Davy, Inc. claims that the trial court failed to follow this court's instruction upon remand to adjudicate all of the five counts raised in its third-party complaint. When a case is remanded to a trial court from an appellate court, the mandate of that appellate court must be followed. Nolan v. Nolan (1984), 11 Ohio St. 3d 1. "An inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case." Id. at syllabus. In the instant case, we find that the trial court properly followed this court's mandate to rule upon all that appellee-O-M requested. In its journal entry, the trial court specifically stated that when it granted summary judgment in favor of appellee-O-M, it intended to, and in fact did, adjudicate all aspects in favor of appellee-O-M. -7- Admittedly, the trial court's original journal entry, granting summary judgment in favor of appellee-O-M, sounded as though it ruled only upon appellant-Davy, Inc.'s claim for indemnification. However, upon remand and after reviewing the entire record, the trial court clarified itself and concluded that summary judgment was properly granted in favor of appellee- O-M "in all aspects." We conclude that the trial court complied with the mandate of this court when it issued its journal entry stating that all aspects of appellee-O-M's motion for summary judgment were adjudicated. Appellant-Davy Inc.'s first assignment of error is not well taken and is overruled. Appellant-Davy, Inc.'s second, third and fourth assignments of error will be discussed together, since they pertain to the propriety of the trial court's order granting summary judgment in favor of appellee-O-M. Appellant-Davy, Inc. contends that there existed genuine issues of material fact. A motion for summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). The motion for summary judgment should not be granted unless reasonable minds could reach but one conclusion. In reviewing a motion for summary judgment, the inferences from the underlying facts are construed in the light most favorable to the -8- nonmoving party. Civ. R. 56(C); Wills v. Frank Hoover Supply (1986), 26 Ohio St. 3d 186, 188. Further, a reviewing court, upon an appeal from a summary judgment, should look at the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1981), 67 Ohio St. 2d 427, 433. In this case, the trial court granted summary judgment in favor of appellee-O-M on all five counts of appellant-Davy, Inc.'s third-party complaint. The five counts appellant-Davy Inc. raised were: 1) contractual indemnification pursuant to Paragraph 3.4 of the Brokerage Agreement; 2) breach of Paragraph 3.4; 3) fraudulent misrepresentation as to the dispute resolution mechanisms among brokers; 4) negligence in failing to resolve the alleged disputes; and 5) indemnification. The pertinent portion of the Brokerage Agreement in which appellant-Davy, Inc.'s third-party complaint relies is Paragraph 3.4, which reads as follows: O-M will cooperate with all brokers on customary terms, including sharing of commissions as required to facilitate a sale or other transfer satisfactory to DI. O-M will at its own expense resolve any disputes with brokers who are involved with it in any sale or transfer. Upon a review of Paragraph 3.4 of the Brokerage Agreement between appellant-Davy, Inc. and appellee-O-M, we are unable to conclude that said paragraph constitutes an "indemnification clause." Nowhere in the paragraph does it state that appellee- O-M must indemnify appellant-Davy, Inc. or hold it harmless. We -9- find that this paragraph does not amount to a provision of contractual indemnification. Accordingly, we conclude that the trial court properly entered summary judgment in favor of appellee-O-M on Count One. In Count Two, appellant-Davy, Inc. alleged that appellee- O-M breached Paragraph 3.4 of the Brokerage Agreement. Paragraph 3.4 required appellee-O-M to "resolve any disputes with brokers who are involved with it in any sale or transfer." We are unable to find that appellee-O-M breached said provision. There is nothing in the evidence presented by both parties demonstrating that appellee-O-M was involved with Greiner in the sale or transfer of appellant-Davy, Inc.'s property. In fact, in his deposition, Robert Greiner testified that the issue was not about splitting a commission with appellee-O-M. Although Greiner initially sued appellant-Davy, Inc. and appellee-O-M, that complaint was dismissed, and Greiner subsequently sued only appellant-Davy, Inc. Moreover, the trial court specifically stated that Greiner's claims against appellant-Davy, Inc. were not within the contract with appellee-O-M and that said claims did not arise from the actual sale to C.E.I. We find that Paragraph 3.4 was inapplicable herein and that appellee-O-M did not breach said provision. Thus, the trial court did not err in granting summary judgment on Count Two. -10- Appellant-Davy, Inc. alleged in Count Three of its third- party complaint that appellee-O-M misrepresented that it would protect it from any disputes involving brokers. There is no evidence that appellee-O-M misrepresented to appellant-Davy, Inc. anything regarding dispute resolutions among brokers. In its motion for summary judgment, appellee-O-M argued that there was always a dispute resolution mechanism in effect, i.e. Section 24 of the Cleveland Area Board of Realtor's Code of Ethics and Arbitration Manual. Appellee-O-M submitted sufficient evidence that appellant-Davy, Inc. could not prove the "falsity" element of a material misrepresentation. Therefore, we conclude that summary judgment was properly entered on Count Three. Appellant-Davy, Inc. alleged in Count Four of its third- party complaint that appellee-O-M negligently failed to resolve the alleged dispute between it and Greiner. We find that there was no duty for appellee-O-M to resolve appellant-Davy, Inc.'s dispute with Greiner. Appellee- O-M's only duty with regard to other brokers was set forth in Paragraph 3.4 of the Brokerage Agreement. As mentioned previously, appellee-O-M did not breach said duty contractually. We find that appellant-Davy, Inc. had no cause of action for negligence and that appellee-O-M was entitled to summary judgment on Count Four. -11- Finally, appellant-Davy, Inc. alleged in Count Five of its third-party complaint that it was entitled to indemnification from appellee-O-M in the event it was adjudged liable to Greiner. We find that based upon what we found earlier, that there existed no indemnification contract, appellant-Davy, Inc. was not entitled to indemnification. Thus, appellant-Davy, Inc. had no cause of action in Count Five. Therefore, in light of the above, we find that the trial court properly entered summary judgment in favor of appellee-O-M on all counts of appellant-Davy, Inc.'s third party complaint. Appellant's second, third and fourth assignments of error are not well taken and are overruled. Trial court judgment is affirmed. -12- It is ordered that appellee-Davy, Inc. recover of appellant-O-M its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and ECONOMUS, J.*, CONCUR (*Economus, J., of the Common Pleas Court of Mahoning County, Sitting by Assignment) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .