COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68766 : ACCELERATED DOCKET DANIEL P. KELLY : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GLORIA GREENE : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 238,948 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: JERRY B. KRAIG Attorney at Law The Rockefeller Building, #911 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square, #1016 Cleveland, Ohio 44113-2098 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Defendant-appellant Gloria Greene appeals the dismissal by the Cuyahoga County Common Pleas Court of her counterclaim for interference with contractual relations, sexual harassment and intentional infliction of emotional distress. This matter was previously before this court in Kelly v. Greene (Oct. 6, 1994), Cuyahoga App. No. 66359, unreported. In our disposition of Case No. 66359, we reversed in part because the trial court had dismissed all of appellant's counterclaim with prejudice, when, in fact, it should have dismissed some counterclaims without prejudice pursuant to Civ.R. 25(A). The present appeal is before this court due to the actions taken by the parties subsequent to our disposition of Case No. 66359. The record reveals that those actions are as follows: On November 10, 1994, appellant filed a motion for substitution of personal representative. After a brief in opposition was filed by appellee, the trial court entered the following order on November 22, 1994: - 3 - Deft's motion filed 11-10-94, for substitution of personal representative for deceased pltf. is stricken as this court is without jurisdiction to rule on said motion until matter is reinstated. At that time, the Administrative Judge of the Cuyahoga County Court of Common Pleas had not yet re-assigned the case to a particular trial judge. Thereafter, on February 24, 1995, the Administrative Judge entered the following order: *** being affirmed in part, reversed in part and remanded to the Court of Common Pleas by order of the Court of Appeals: this matter is hereby returned to the docket of Judge Kenneth Callahan for further proceedings according to law. Upon re-assignment of the case to its docket, the trial court entered the following order on March 3, 1995: In accordance with the order of the Court of Appeals for Cuyahoga County, the counterclaims of interference with contractual relations, sexual harassment and intentional infliction of emotional distress only are dismissed without prejudice. All other claims are dismissed with prejudice. (Emphasis in original). It is from this final order of March 3, 1995 that the appellant has timely appealed, raising the following assignments of error for our review: I. THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING THIS CASE WHEN NO REPRESENTATIVE OF THE ESTATE OF DANIEL KELLY HAD BEEN APPOINTED AND THERE WAS NO PARTY TO SUBSTITUTE. II. THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING THE COUNTERCLAIM OF THE DEFENDANT WITHOUT PRIOR NOTICE TO THE DEFENDANT. - 4 - I. In her first assignment of error, appellant argues that the trial court, on remand, erred in striking her motion for substitution filed on November 10, 1994. We disagree with appellant and hold that this assignment of error is rendered moot per our previous determination in Case No. 66359, supra, when this court held at p. 4: The motion for substitution may be made by any party to the action. There is no affirmative duty placed upon the attorney of the deceased to file a motion to substitute. Barrett v. Franklin (1986), 32 Ohio App.3d 51, 54. That burden is placed upon the one bringing the action. Id. A person must move for the substitution. United Home Fed. v. Rhonehouse (1991), 76 Ohio App.3d 115. The ninety-day period provided for in Civ.R. 25(A)(1) may be extended upon a showing of excusable neglect. Young v. Merrill Lynch (1993), 88 Ohio App.3d 12, 16. As a party, appellant could have filed a motion for substitution even though no representative of Kelly was appointed by probate court. There is no showing of excusable neglect reflected in the record which would permit an extension of the ninety-day time period. Indeed, appellant never has filed a motion requesting substitution. As there was no substitution for Kelly, only appellant remained as a party. The trial court did not err by dismissing the case. Therefore, in our previous disposition of this matter, we affirmed the trial court's granting of the motion to dismiss appellant's case due to the fact that no substitution was filed within the ninety days required by Civ.R. 25(A). Under the - 5 - doctrine of the law of the case, appellant is precluded from relitigating this issue. The doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. City of North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173; Weir v. Kebe (1985), 29 Ohio App.3d 53. In the prior appeal, this court held that the trial court did not err by dismissing the case due to appellant's failure to file a timely motion for substitution within the requirements of Civ.R. 25(A). Accordingly, appellant's first assignment of error is overruled. II. In her second assignment of error, appellant argues that the trial court erred in dismissing the action without prior notice to the defendant. We do not agree. Upon remand of this matter from this court, the trial court entered a final judgment without prejudice in order to conform to the mandate issued by this court. As we stated in the prior appeal, supra, at p. 6: Therefore, a Civ.R. 25(A) dismissal is one without prejudice as to those causes of action which survive the death of a party. Appellant's slander claim has abated but the remainder of her claims did not. The trial court erred by dismissing these claims with prejudice. (Emphasis added). - 6 - Therefore, the action taken by the trial court was merely executing the instructions mandated by this court not to dismiss with prejudice that part of the counterclaim dealing with interference with contractual relations, sexual harassment and intentional infliction of emotional distress; hence, it was not necessary for the trial court to hold a hearing on the matter. Accordingly, appellant's second assignment of error is overruled. - 7 - This cause is affirmed. It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, PRES. JUDGE JOSEPH J. NAHRA, JUDGE AUGUST PRYATEL, JUDGE* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .