[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., Slip Opinion No. 2024-Ohio-
5729.]




                                        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. 

  PHOENIX LIGHTING GROUP, L.L.C., APPELLEE, ET AL. v. GENLYTE THOMAS
                         GROUP, L.L.C., APPELLANT, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group,
                    L.L.C., Slip Opinion No. 

.]
Tort—Postjudgment attorney fees—Attorney-fee issue was settled by this court’s
        mandate in prior appeal—Trial court erred in considering and granting
        motion for postjudgment attorney fees and expenses—Judgment reversed
        and cause remanded to trial court with instructions.
  (No. 2023-0631—Submitted January 9, 2024—Decided December 10, 2024.)
              APPEAL from the Court of Appeals for Summit County,
                             No. 30303, 

.
                                  ________________
        FISCHER, J., authored the opinion of the court, which DONNELLY, STEWART,
and BRUNNER, JJ., joined. KENNEDY, C.J., concurred in judgment only, with an
opinion joined by DEWINE and DETERS, JJ.
                             SUPREME COURT OF OHIO




       FISCHER, J.
       {¶ 1} We accepted this discretionary appeal filed by appellant, Genlyte
Thomas Group, L.L.C., a.k.a. Day-Brite, Capri, Omega (“DCO”), to determine
whether appellee, Phoenix Lighting Group, L.L.C., (“Phoenix”) was precluded
from pursuing postjudgment attorney fees and expenses following a decision by
this court reversing “the portion of the court of appeals’ judgment affirming the
award of attorney fees” and remanding “the cause to the trial court with instructions
to issue a final judgment granting Phoenix attorney fees in the amount of
$1,991,507,” Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C.,

. We conclude that the attorney-fee issue was settled by our
mandate in that case and that the trial court erred in considering and granting
Phoenix’s motion for postjudgment attorney fees and expenses. We therefore
reverse the Ninth District Court of Appeals’ judgment, which upheld the trial
court’s award of postjudgment attorney fees and expenses, and we remand the cause
to the trial court with instructions to vacate its award of postjudgment attorney fees
and expenses and to enter final judgment.
                               I. BACKGROUND
    A. Phoenix is awarded punitive damages and attorney fees against DCO
       {¶ 2} Phoenix sued DCO and obtained a jury verdict against it on Phoenix’s
claims for tortious interference with a business relationship, misappropriation of
trade secrets, and civil conspiracy to commit (1) tortious interference with a
business relationship, (2) tortious interference with a contractual relationship, (3)
misappropriation of trade secrets, and (4) breach of duty of loyalty, good faith, and
trust. See Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C.,
Summit C.P. No. CV2012084444, 

, at *1 (Sept. 29, 2014). In
addition to awarding Phoenix compensatory damages, the jury awarded Phoenix
punitive damages against DCO and reasonable attorney fees. See 

                                          2
                                January Term, 2024




       {¶ 3} The trial court recognized that the punitive-damages award returned
by the jury excluded the misappropriation-of-trade-secrets claim, and it awarded
additional punitive damages on that claim. See id. at *1-2. The trial court awarded
Phoenix attorney fees based on a lodestar figure of $1,991,507 and enhanced the
award by a multiplier of two. See id. at *2-3.
  B. The Ninth District affirmed in part and reversed in part the judgment and
                       remanded the cause to the trial court
       {¶ 4} Both parties appealed to the Ninth District Court of Appeals. Phoenix
Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 

 (9th
Dist.) (“Phoenix I”). DCO raised seven assignments of error, challenging the trial
court’s exclusion of certain evidence and its failure to conclude as a matter of law
that Phoenix had caused its own losses, the sufficiency and manifest weight of the
evidence to support the jury verdict, the amount of the compensatory- and punitive-
damages awards, and the enhancement of the attorney-fee award. Phoenix, in its
response brief, argued that the appellate court should affirm the jury awards and
remand the case to the trial court for it to determine the amount of reasonable
attorney fees that Phoenix incurred in defending its awards on appeal. Phoenix
argued that postjudgment attorney fees should be recoverable because it had a
statutory right to those fees under R.C. 1333.64(C), which is part of Ohio’s Uniform
Trade Secrets Act, and it requested that the court remand the case for a
determination of those fees.
       {¶ 5} Phoenix also cross-appealed and raised two assignments of error,
challenging the trial court’s interpretation and application of the statutory punitive-
damages cap. Phoenix again argued that the matter should be remanded to award
additional punitive damages and reassess attorney fees to account for the fees it
incurred defending the jury verdict. DCO did not respond to Phoenix’s assertion
that the matter should be remanded for an award of postjudgment attorney fees.




                                          3
                              SUPREME COURT OF OHIO




        {¶ 6} The Ninth District overruled all of DCO’s assignments of error and
one of Phoenix’s assignments of error. However, the Ninth District determined that
the trial court had erred by erroneously applying the punitive-damages cap in R.C.
2315.21(D), which applies to general tort claims, to Phoenix’s claim for conspiracy
to maliciously misappropriate trade secrets; instead, the Ninth District held, the trial
court should have applied the cap in R.C. 1333.63(B), part of Ohio’s Uniform Trade
Secrets Act. Phoenix I at ¶ 79-82 (9th Dist.). Thus, the Ninth District reversed the
trial court’s judgment as it pertained to the punitive-damages cap for the claim of
civil conspiracy to misappropriate trade secrets and remanded the matter for the
trial court to apply R.C. 1333.63(B). Id. at ¶ 83. The Ninth District did not
specifically address Phoenix’s argument that the trial court should reassess the
attorney-fee award, but it stated, “[T]he judgment of the Summit County Court of
Common Pleas is affirmed in part, reversed in part, and this matter is remanded for
further proceedings consistent with this opinion.” Id. at ¶ 84.
     C. This court accepted jurisdiction over only DCO’s proposition of law
              challenging the enhancement of the attorney-fee award
        {¶ 7} DCO appealed to this court and raised three propositions of law,
challenging the trial court’s exclusion of evidence (proposition of law No. 1), the
compensatory-damages award concerning the conspiracy-to-commit-tortious-
interference-with-a-business-relationship      claim     and      the   conspiracy-to-
misappropriate-trade-secrets claim (proposition of law No. 2), and the trial court’s
enhancement of the attorney-fee award (proposition of law No. 3). We accepted
only DCO’s third proposition of law and considered the circumstances that warrant
enhancement to the lodestar. See Phoenix Lighting Group, L.L.C. v. Genlyte
Thomas Group, L.L.C., 

 (“Phoenix II”); 

.
        {¶ 8} DCO argued that the enhancement of the attorney-fee award was
arbitrary and that we should vacate the award and remand the case for an entry of
a final judgment with attorney fees in the amount of the lodestar—$1,991,507.




                                           4
                                January Term, 2024




Phoenix argued that the trial court had not erred and requested that we affirm the
court of appeals’ judgment and remand the matter to the trial court to determine
reasonable attorney fees for Phoenix’s postjudgment efforts defending its awards
on appeal. DCO did not address Phoenix’s assertion that the matter should be
remanded to address postjudgment attorney fees.
       {¶ 9} In resolving the jurisdictional appeal, we recognized that the Ninth
District had made several determinations in resolving DCO’s and Phoenix’s
appeals, including its determination that the trial court had erred by applying the
wrong statute to the punitive-damages award for the conspiracy-to-misappropriate-
trade-secrets claim. Phoenix II at ¶ 7. Nevertheless, we addressed the portion of
the court of appeals’ opinion dealing with the attorney fees awarded to Phoenix
based on the enhancement of the lodestar—“‘“the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate,”‘ ” id. at ¶ 10,
quoting Bittner v. Tri-County Toyota, Inc., 

 (1991), quoting
Hensley v. Eckerhart, 

 (1983), despite knowing that there could
be additional attorney hours expended at the trial-court level due to the Ninth
District’s remand on the punitive-damages award for the conspiracy claim.
       {¶ 10} We noted that the jury had awarded Phoenix attorney fees based
solely on the punitive-damages award and not on the violation of Ohio’s Uniform
Trade Secrets Act, R.C. 1333.61 et seq. Id. at ¶ 25. And in reviewing the record,
we concluded that “Phoenix’s attorneys were reasonably compensated based on the
Prof.Cond.R. 1.5(a) factors, so there should have been no enhancement to the
lodestar.” Id. at ¶ 28. Thus, we determined that the trial court had erred in
enhancing the lodestar and therefore reversed the portion of the court of appeals’
judgment affirming the award of attorney fees and remanded the cause to the trial
court with instructions to issue a final judgment granting Phoenix attorney fees in
the amount of $1,991,507. Id.
       {¶ 11} Neither party moved for reconsideration of our decision.




                                        5
                             SUPREME COURT OF OHIO




   D. On remand, the trial court awarded Phoenix postjudgment attorney fees
       {¶ 12} After we released our decision in Phoenix II, Phoenix moved the trial
court for postjudgment attorney fees, costs, and expenses it had incurred in
defending its awards against DCO’s postjudgment motions and appeals and in its
successful prosecution of a cross-appeal to achieve an additional punitive-damages
award for conspiracy to misappropriate trade secrets under R.C. 1333.63(B).
Phoenix argued that this court had affirmed the $1,991,507 prejudgment-attorney-
fee award representing the lodestar amount and that under R.C. 1333.64(C), it was
now entitled to postjudgment attorney fees and expenses that it incurred in the trial
court and in the appellate courts after the date of the final judgment entry. Phoenix
acknowledged that this court had instructed the trial court to “issue a final judgment
granting Phoenix attorney fees in the amount of $1,991,507,” Phoenix II, 2020-
Ohio-1056, at ¶ 28. But, Phoenix argued, this court’s decision applied only to
prejudgment attorney fees because this court (1) had accepted jurisdiction over only
the proposition of law addressing the enhancement to those fees and (2) did not
disturb the court of appeals’ decision on the on the other issues or its remand of the
case for further consideration.
       {¶ 13} DCO opposed the motion and argued that this court’s instruction to
the trial court in Phoenix II to issue a “final judgment” demonstrated this court’s
rejection of Phoenix’s explicit request for a broader remand that would have
allowed the trial court to consider postjudgment attorney fees and expenses. DCO
maintained that Phoenix had not pursued attorney fees under Ohio’s Uniform Trade
Secrets Act and that under the law-of-the-case doctrine, the trial court was
prohibited from extending or varying the mandate given by a superior court. DCO
noted again that Phoenix had asked this court to remand the matter for consideration
of additional attorney fees but that this court had declined to do so.
       {¶ 14} Phoenix maintained that the law-of-the-case doctrine did not prevent
it from being awarded postjudgment attorney fees, because in Phoenix II, this court




                                          6
                                January Term, 2024




had had jurisdiction over only the prejudgment-attorney-fee award. While Phoenix
acknowledged that it had concluded its merit brief in Phoenix II with a request for
a remand to the trial court to consider awarding postjudgment attorney fees, it
argued that that request pertained to a matter outside this court’s jurisdiction and
that it had been an unnecessary request because the portions of the appellate court’s
judgment that were not addressed by this court in Phoenix II already gave
jurisdiction over postjudgment attorney fees to the trial court.
       {¶ 15} After a hearing, the trial court determined that it had jurisdiction to
decide the issue on postjudgment attorney fees and that such an award would not
be inconsistent with this court’s decision in Phoenix II, given that that case was
limited to a single issue concerning prejudgment attorney fees. The trial court
concluded that Phoenix was not precluded from seeking an award of appellate
attorney fees under R.C. 1333.63(B), because the statute does not contain a time
limitation or a requirement that a request for attorney fees be made during the trial
in order to be recovered. The trial court found that Phoenix was entitled to recover
all its attorney fees and expenses as submitted regarding postjudgment matters,
totaling $1,079,716 in attorney fees and $61,680 in expenses. The court also
awarded an enhancement to the lodestar totaling $421,604 to account for the time
value of money.
  E. The Ninth District affirmed Phoenix’s award of postjudgment attorney fees
       {¶ 16} DCO appealed to the Ninth District, arguing that the trial court erred
in failing to enter the judgment mandated by this court in Phoenix II and in
awarding additional attorney fees and expenses. The Ninth District affirmed the
judgment of the trial court, noting that in Phoenix II this court had accepted
jurisdiction over only the proposition of law concerning the enhancement of the
attorney-fee award and had declined jurisdiction over DCO’s other propositions of
law. 

 (9th Dist.) (“Phoenix III”). The Ninth District also
noted that this court, in Phoenix II, had reversed only “‘the portion of the court of




                                          7
                             SUPREME COURT OF OHIO




appeals’ judgment affirming the award of attorney fees’ ” and did not address the
separate awards that had already been affirmed, the remand order, or the
postjudgment attorney fees and expenses. Phoenix III at ¶ 17 (9th Dist.), quoting
Phoenix II, 

.
       {¶ 17} Thus, the Ninth District concluded (1) that the trial court had had
jurisdiction to consider and decide any matters left open by the reviewing courts,
which included postjudgment attorney fees and expenses, and (2) that the trial court
had not exceeded this court’s remand order, because the motion for postjudgment
attorney fees was filed after the remand in Phoenix II and thus had been an open
issue for the trial court to decide. Id. at ¶ 18-19. The Ninth District also determined
that the trial court had not abused its discretion in awarding the full amount
requested for postjudgment attorney fees and expenses and an enhancement to the
lodestar amount to account for the time value of money. Id. at ¶ 32-33.
               F. This court accepted DCO’s jurisdictional appeal
       {¶ 18} DCO appealed to this court, and we accepted jurisdiction over its
proposition of law:


               A superior court mandate remanding with instructions to
       enter final judgment does not leave open post-trial and appellate
       attorney fees and expenses, so a trial court may not alter the
       judgment that it was instructed to enter to add these fees and
       expenses. (Cruz v. English Nanny & Governess Sch[ool], [169]
       Ohio St.3d [716], 

, clarified;
       Transamerica Ins. Co. v. Nolan, 

 (1995),
       followed.)


See 

.




                                          8
                                January Term, 2024




                              II. LAW AND ANALYSIS
       {¶ 19} This case comes down to whether the trial court exceeded the scope
of its authority when it considered Phoenix’s postjudgment motion for attorney fees
and expenses after we issued our decision in Phoenix II instructing the trial court
to “issue a final judgment” on the issue of attorney fees, Phoenix II, 2020-Ohio-
1056, at ¶ 28. We hold that the trial court exceeded its authority, and we therefore
reverse the court of appeals’ judgment, remand the cause to the trial court with
instructions to vacate its award of postjudgment attorney fees and expenses and to
enter final judgment.
       {¶ 20} A trial court’s jurisdiction over a matter is limited once proceedings
are complete. See State ex rel. Davis v. Janas, 

. When a
judgment is reversed or affirmed on appeal, however, the appellate court will issue
a special mandate to the trial court for execution or for further proceedings. R.C.
2505.39. The trial court is bound by that appellate court’s mandate. Nolan v.
Nolan, 

, syllabus (1984) (“Absent 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.”); see Transamerica at 323-324 (trial court was obligated to comply with the
court of appeals’ mandate to enter judgment for the insurers and the trial court’s
failure to immediately comply with the mandate did not keep the case alive to allow
for further arguments based on subsequent decisions by the Ohio Supreme Court);
In re Sanford Fork & Tool Co., 

 (1895) (“When a case has been
once decided by this court on appeal, and remanded to the circuit court, whatever
was before this court, and disposed of by its decree, is considered as finally settled.
The circuit court is bound by the decree as the law of the case, and must carry it
into execution according to the mandate.”). A trial court is without authority to
extend or vary the mandate given. Nolan at 4; Giancola v. Azem, 

. And the trial court generally loses jurisdiction to modify its judgment once




                                          9
                             SUPREME COURT OF OHIO




that judgment has been affirmed on appeal. See State ex rel. 

.
Determining whether a trial court has followed a superior court’s mandate is a
jurisdictional question, which this court reviews de novo, see Smith v. Ohio State
Univ., 

 (an issue regarding a trial court’s subject-matter
jurisdiction is reviewed de novo).
       {¶ 21} In this case, there were two superior-court orders: (1) the Ninth
District’s decision in Phoenix I, reversing the trial court’s judgment as it pertained
to the punitive-damages cap for the claim of civil conspiracy to misappropriate
trade secrets and remanding the matter for the trial court to apply R.C. 1333.63, but
stating, “[T]his matter is remanded for further proceedings consistent with this
opinion,” Phoenix I, 

 (9th Dist.), and (2) this court’s
decision in Phoenix II, reversing the portion of the court of appeals’ judgment that
affirmed the enhancement of the attorney-fee award and remanding the cause to the
trial court with instructions to enter final judgment on the attorney-fee-award issue,

. DCO argues that the trial court had no jurisdiction to enter an
award for postjudgment attorney fees and expenses because it had a limited remand
order to enter judgment for prejudgment attorney fees only. Phoenix argues that
the trial court had jurisdiction to enter an award for postjudgment attorney fees
because (1) the court of appeals’ remand order required the trial court to award
additional punitive damages for conspiracy to misappropriate trade secrets, (2) R.C.
1333.64(C) does not limit the time frame in which a prevailing party may seek
attorney fees incurred in pursuing such a claim, and (3) this court’s remand order
was limited to prejudgment attorney fees. Based on the history of this case, we
agree with DCO.
       {¶ 22} The mandates issued by this court and by the Ninth District
foreclosed any opportunity for Phoenix to seek an additional attorney-fee award.
The Ninth District, in Phoenix I, rejected all the arguments raised by the parties
except Phoenix’s challenge to the punitive-damages award for the conspiracy-to-




                                         10
                                January Term, 2024




misappropriate-trade-secrets claim. It remanded the case for the trial court to
recalculate the punitive damages awarded for the conspiracy-to-misappropriate-
trade-secrets claim, and it permitted the trial court to engage in “further
proceedings” consistent with its opinion. 

. But even after we
acknowledged, in Phoenix II, that the Ninth District’s remand order required the
trial court to address the punitive-damages award for the conspiracy-to-
misappropriate-trade-secrets claim, Phoenix II, 

, which was
an issue that may have led to an additional attorney-fee award under R.C.
1333.64(C), we nevertheless looked at the entire attorney-fee award and
determined that enhancement of that award was inappropriate, id. at ¶ 28. After
review, we instructed the trial court to enter final judgment on the attorney-fee
award without the enhancement. Therefore, based on our remand order, the trial
court was limited to deciding the punitive-damages issue and then entering final
judgment on the attorney-fee issue.
       {¶ 23} This conclusion is supported by the plain language of our decision
in Phoenix II and this court’s and the Ninth District’s rejection of Phoenix’s
requests to remand for an additional attorney-fee award. The Ninth District’s
remand order in Phoenix I did not instruct the trial court to consider a postjudgment-
attorney-fee award, despite Phoenix’s having asked for such an instruction in its
merit brief.   One could argue that the Ninth District’s remand in Phoenix I
instructing the trial court to adjust the punitive-damages award for the claim for
conspiracy to misappropriate trade secrets and to engage in “further proceedings
consistent with” its opinion, 

, left the door open for the trial
court to consider whether Phoenix was entitled to an additional award for
postjudgment attorney fees, see State ex rel. Ames v. Portage Cty. Bd. of Commrs.,

. But we barred that opportunity in Phoenix II, when we
decided the attorney-fee issue in its entirety and instructed the trial court to enter
final judgment on attorney fees. See State ex rel. Potain v. Mathews, 

                              SUPREME COURT OF OHIO




29, 32 (1979) (a trial court has no discretion to disregard the mandate of a court of
appeals in a prior appeal in the same case unless the court of appeals’ decision is
inconsistent with an intervening decision by this court). Moreover, in deciding that
case, we too declined Phoenix’s request that we remand the cause for the trial court
to address postjudgment attorney fees. See State ex rel. Cassels v. Dayton City
School Dist. Bd. of Edn., 

 (a motion is presumed denied when a
court fails to rule on it).
        {¶ 24} Phoenix argues that it was permitted to seek postjudgment appellate
attorney fees under R.C. 1333.64(C) consistent with our decision in Cruz v. English
Nanny & Governess School, 

. In Cruz, this court determined that
a trial court that had decided a prejudgment-attorney-fee award on remand had had
the authority under common law to award attorney fees for postjudgment work that
had been completed during the first appeal, because “the court of appeals’ mandate
. . . did not prohibit [the plaintiffs] from filing an updated motion regarding attorney
fees that they had subsequently incurred defending their judgment on appeal.” 

. Cruz is inapplicable here because even if Phoenix could have been
entitled to appellate attorney fees, as discussed earlier, the appellate court and this
court rejected Phoenix’s motions for appellate attorney fees.
        {¶ 25} Reviewing the record and our decision in Phoenix II, we realize that
it could be argued that in Phoenix II we may have misunderstood the scope of the
trial court’s attorney-fee award and, thus, the possible impact that our remand order
would have on attorney fees. We stated that attorney fees had not been awarded to
Phoenix under Ohio’s Uniform Trade Secrets Act, Phoenix II, 

. But that statement was based solely on the jury’s interrogatories. And the
record shows that the jury awarded punitive damages on all the general tort claims
and that the trial court awarded punitive damages on the claims brought under the
Ohio’s Uniform Trade Secrets Act. But even if we incorrectly believed that the
Ninth District’s order to the trial court on remand to alter the punitive-damages




                                          12
                                January Term, 2024




award would have no effect on the attorney-fees award, it is now the law of the
case. Nolan, 

 (a decision of this court in a case remains the law
of that case on legal questions involved for all subsequent proceedings in the case).
If Phoenix believed that it was entitled to postjudgment attorney fees, as it argued
before the Ninth District in Phoenix I and before this court in Phoenix II, then it
could have moved for reconsideration of this court’s decision in Phoenix II under
S.Ct.Prac.R. 18.02. Because Phoenix failed to move for reconsideration, our
decision in Phoenix II is the law of the case, and that decision precluded the trial
court from awarding postjudgment attorney fees on remand, given that in that
decision, we reviewed the entire attorney fee award and ordered the trial the court
to enter final judgment. See State ex rel. Mather v. Oda, 

(a trial court has general authority to award appellate attorney fees in certain
circumstances, as recognized in Cruz, but an appellate court’s mandate to a trial
court instructing it to issue a nunc pro tunc entry did not establish jurisdiction for
the common pleas court to conduct further proceedings on appellate attorney fees).
       {¶ 26} Thus, we conclude that based on the procedural posture of this case,
the remand order from the Ninth District in Phoenix I, and our remand order in
Phoenix II, the trial court exceeded its authority in considering Phoenix’s motion
for postjudgment attorney fees.
                                  III. CONCLUSION
       {¶ 27} We reverse the judgment of the Ninth District Court of Appeals and
remand the cause to the Summit County Court of Common Pleas with instructions
to vacate its award of postjudgment attorney fees and expenses and to enter final
judgment.
                                                                  Judgment reversed
                                              and cause remanded to the trial court.
                               __________________




                                         13
                              SUPREME COURT OF OHIO




       KENNEDY, C.J., joined by DEWINE and DETERS, JJ., concurring in
judgment only.
       {¶ 28} I concur in the majority’s judgment reversing the Ninth District
Court of Appeals’ judgment, which upheld the trial court’s award of postjudgment
attorney fees and expenses. I part ways with the majority, however, because it stops
short of explicitly overruling Cruz v. English Nanny & Governess School, 2022-
Ohio-3586. Rather, it attempts to circumvent Cruz by stating that it is inapplicable
here. Its failure to acknowledge or overrule it only further confuses an already
confused area of our caselaw.
                          The Majority’s Flawed Opinion
       {¶ 29} The majority holds that appellee, Phoenix Lighting Group, L.L.C.,
is not entitled to appellate attorney fees in this case because our mandate in Phoenix
Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 

,
(“Phoenix II”), did not explicitly allow for appellate attorney fees. It does so
without revisiting our holding in Cruz that “[w]hen parties are awarded punitive
damages at trial, they may also recover reasonable attorney fees that they incur
successfully defending their judgments on appeal,” 

. The problem is
that the result the majority reaches today cannot comfortably coexist with our
holding in Cruz.
       {¶ 30} To understand why that is true, begin with the history of this case.
In the trial court, Phoenix obtained a jury verdict against appellant herein, Genlyte
Thomas Group, L.L.C., a.k.a. Day-Brite, Capri, Omega (“Genlyte”), that included
an award of punitive damages. See 

. Phoenix successfully
defended that judgment on appeal. 

 Then, Genlyte appealed to this court. This
court accepted jurisdiction over a sole proposition of law concerning enhancement
to the lodestar. Id. at ¶ 8. Ultimately, this court reversed the Ninth District and
ordered the trial court to reduce its award of trial-court attorney fees. Id. at ¶ 28.




                                          14
                                   January Term, 2024




       {¶ 31} Upon return to the trial court, Phoenix sought to recover the attorney
fees it incurred in defending its judgment on appeal. The trial court awarded
Phoenix appellate attorney fees. Genlyte appealed that determination to the Ninth
District, and that court upheld the award. 

 (9th Dist.). Before that
appeal was decided, this court issued its decision in Cruz, 

,
overturning decades of precedent and allowing a party who had successfully
defended a judgment on appeal that included an award of punitive damages to
recover appellate attorney fees.
       {¶ 32} The majority reverses the Ninth District’s judgment on the narrow
grounds that our mandate in Phoenix II did not explicitly allow for an award of
appellate attorney fees. Majority opinion, ¶ 26.
       {¶ 33} At the outset, Cruz applies to this case. The majority incorrectly
states that Cruz does not apply, because this court and the Ninth District denied
Phoenix’s motions for appellate attorney fees in the prior appeals in this case,
majority opinion at ¶ 24. A review of this court’s docket reveals that no motion for
attorney fees was filed in the prior appeal in this case, see docket in case No. 2018-
1076, and the majority admits that the Ninth District did not “specifically address”
Phoenix’s argument that that court should remand the case for the trial court to
revisit the attorney-fee award. Id. at ¶ 6. If neither court denied an attorney-fees
motion, then Cruz’s holding—that a litigant may recover appellate attorney fees
anytime a reviewing court’s mandate does not explicitly preclude them, 

, fn. 3—applies. The majority attempts to skip over that problem by stating
that failure to rule on a motion is a denial of that motion, majority opinion at ¶ 23,
but Cruz allows litigants to make motions for appellate attorney fees in trial courts
whenever a reviewing court does not expressly forbid them. Because no court
denied Phoenix’s request for attorney fees, this case stands on equal ground with
Cruz. Therefore, if Cruz is good law, Phoenix is entitled to attorney fees.




                                           15
                              SUPREME COURT OF OHIO




       {¶ 34} I now turn to the two problems with the majority’s holding. First, if
this court follows Cruz, our mandate in Phoenix II did not bar Phoenix from seeking
to recover its appellate attorney fees. Before the court in Cruz could determine
whether appellate attorney fees were available for defending a judgment on appeal,
it had to address a preliminary issue—whether the trial court was allowed on
remand to exceed the appellate court’s mandate by awarding appellate attorney
fees. Cruz, 

. In Cruz, the majority essentially held,
in a footnote, that a mandate that did not mention appellate attorney fees did not
preclude a party from later asking for appellate attorney fees. 

 (“The court of
appeals’ mandate . . . did not prohibit Cruz and Kaiser from filing an updated
motion regarding attorney fees that they had subsequently incurred defending their
judgment on appeal.”); see also State ex rel. Mather v. Oda, 

(Kennedy, C.J., concurring in part and concurring in judgment in part) (“Cruz
essentially held that on remand, a trial court may reopen a judgment and do
anything the appellate court does not prohibit the trial court from doing.”). Today
the majority reaches the exact opposite conclusion, yet at the same time pretends
that Cruz remains good law.
       {¶ 35} Second, if a party is really entitled to attorney fees incurred in
defending a judgment on appeal, how was Phoenix supposed to go about recovering
its appellate attorney fees? The narrow issue before us in Phoenix II, 2020-Ohio-
1056, concerned only the lodestar enhancement, not appellate attorney fees. So of
course our mandate necessarily addressed only the issue this court accepted and did
not say anything about appellate attorney fees. The majority suggests that in
Phoenix II, Phoenix could have moved for reconsideration if it believed it was
entitled to appellate attorney fees. Majority opinion at ¶ 25. But that is incorrect:
this court uses its reconsideration authority under S.Ct.Prac.R. 18.02 “to correct
decisions which, upon reflection, are deemed to have been made in error.” State ex
rel. Huebner v. W. Jefferson Village Council, 

. Reconsideration




                                         16
                                 January Term, 2024




is not a vehicle to raise new issues, such as whether Phoenix was entitled to
appellate attorney fees.
       {¶ 36} The majority’s opinion holds that appellate attorney fees are
available to litigants on appeal in cases like this, but the majority leaves those
litigants without any avenue for recovering such fees.         Those concepts are
diametrically opposed.
       {¶ 37} Therefore, the majority opinion creates further confusion in our
caselaw. This court’s decision in Cruz that a trial court can exceed the appellate
court’s mandate is squarely in conflict with the court’s holding today. This court’s
recent decision in State ex rel. Mather is also in conflict with Cruz. Litigants and
lower courts will be left wondering which decision to follow. And “[w]hen the law
is uncertain, there is no law.” State ex rel. Klein v. Precision Excavating & Grading
Co., 

 (Kennedy, J., concurring in judgment only), citing State
ex rel. Rosett & Bicking v. Boring, 

, 516 (1846).
                           This Court Should Overrule Cruz
       {¶ 38} The majority treats Cruz as good law but then avoids its implications
in this case by reading our prior mandate narrowly and holding that the trial court
acted outside of that mandate. The majority ignores that that holding is inconsistent
with the above-mentioned fn. 3 holding in Cruz that on remand, a trial court may
do anything the appellate court’s mandate does not prohibit it from doing. There is
a much easier—and more forthright—way to deal with this case. This Court should
overrule Cruz.
       {¶ 39} Cruz upended decades of precedent by allowing litigants to recover
appellate attorney fees outside the limited circumstances provided by the General
Assembly in R.C. 2323.51, the appellate-attorney-fees statute. Cruz, 2022-Ohio-
3586, at ¶ 56, 59 (Kennedy, J., dissenting). Doing so flew in the face of the
American rule—“the ‘bedrock principle’ of our adversarial system that each side




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in litigation is responsible for the cost of their own attorney fees.” Id. at ¶ 52, 69
(Kennedy, J., dissenting).
        {¶ 40} An exception to the American rule allows “an award of attorney fees
to the prevailing party as an element of compensatory damages when the jury finds
that punitive damages are warranted.” Phoenix II, 

. The
General Assembly recognized this exception in R.C. 2315.21. But in Cruz, this
court judicially expanded the exception to allow a party who prevails on appeal
from a judgment awarding punitive damages to recover appellate attorney fees. See

 (Kennedy, J., dissenting). In doing so, this court turned a bedrock
principle into clay. Id. at ¶ 52 (Kennedy, J., dissenting).
        {¶ 41} The result is a “harsh dichotomy” that serves to deter defendants
from exercising their right to challenge a judgment that they believe to be incorrect:


        [A] defendant who has a substantive right of first appeal that is
        chilled by the prospect of paying appellate-attorney fees for both
        sides and a plaintiff who can generate larger and larger awards with
        each appeal. This enlargement of the awarding of attorney fees to
        encompass the basic right of first appeal with nothing more than a
        punitive-damage award will certainly have a chilling effect. This is
        an affront to the American rule.


Id. at ¶ 84 (Kennedy, J., dissenting).
        {¶ 42} The majority today correctly determines that a trial court may not
proceed beyond an appellate court’s explicit order absent extraordinary
circumstances, majority opinion at ¶ 20, citing Nolan v. Nolan, 

(1984); see also Cruz, 

 (Kennedy, J., dissenting). But the
crux of the issue in this case is not the trial court’s failure to act consistent with our
mandate, it is that Cruz was wrongly decided.




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                                January Term, 2024




       {¶ 43} As Ohio’s court of last resort, this court should issue opinions that
provide clarity to Ohio law. But “[w]hat emerges [from this case] is a half-baked
holding that leaves,” Panetti v. Quarterman, 

 (2007) (Thomas,
J., dissenting), Ohioans and lower courts guessing what the law is. We owe it to
the courts and litigants of Ohio, who rely on our decisions, to “overrule bad
precedent at the earliest opportunity to avoid reliance on it,” Klein, 2018-Ohio-
3890, at ¶ 52 (Kennedy, J., concurring in judgment only). Cruz, which is built on
broken and inconsistent reasoning, is bad precedent. This court should take this
opportunity to overrule it.
       {¶ 44} Therefore, I concur in judgment only.
                              __________________
       Witschey Witschey and Firestine Co., L.P.A., Jeffrey T. Witschey, and
Betsy L.B. Hartschuh, for appellee.
       Tucker Ellis, L.L.P., Benjamin C. Sassé, and Elisabeth C. Arko; and Taft
Stettinius & Hollister, L.L.P., Bruce J.L. Lowe, and Julie A. Crocker, for appellant.
       Flowers & Grube, Kendra Davitt, and Louis E. Grube, urging affirmance
for amicus curiae Ohio Association for Justice.
                              __________________




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