Summary
In Dougherty, after summary judgment had been granted to the defendant, the plaintiff appealed asserting only one assignment of error, but several issues for review.
Summary of this case from State ex Rel. Davis v. ClearyOpinion
No. 83-795
Decided April 18, 1984.
Appellate procedure — No discretion of inferior court to disregard clear mandate of superior court — Remand for consideration of specified issues.
APPEAL from the Court of Appeals for Hamilton County.
This appeal constitutes the second time this court has been presented with an issue arising out of the original suit filed by appellant against appellee. In Dougherty v. Torrence (1982), 2 Ohio St.3d 69 (" Dougherty I"), we reversed and remanded the cause to the court of appeals on a substantive matter. The present appeal involves a procedural issue.
The factual underpinnings of this case are as follows: On December 15, 1978, appellant, Dennis L. Dougherty, was operating his automobile in an easterly direction in the village of Newton, Ohio. Appellee, Larry R. Torrence, a volunteer fireman for the village, was operating his personal motor vehicle in the same direction as and some distance behind appellant, on his way to the village firehouse in response to an emergency call. Appellant attempted to make a left turn into a parking lot, at which time appellee's car collided with appellant's vehicle in the westbound lane.
Appellant filed suit against appellee for damages and personal injuries proximately caused by the accident. Appellee filed a motion for summary judgment in the trial court on the grounds that as a volunteer fireman he was afforded sovereign immunity under R.C. 701.02. The trial court granted appellee's motion, and appellant timely perfected an appeal to the Court of Appeals for Hamilton County.
In his brief filed with the court of appeals, appellant assigned only one error, to wit: "The trial court erred in sustaining the defendant's motion for summary judgment." In addition, appellant listed three "Issue[s] Presented for Review and Argument," to wit: (1) a volunteer fireman does not enjoy immunity from liability under R.C. 701.02; (2) a volunteer fireman driving a personal vehicle to the firehouse in response to a signal and radio call may not claim immunity under R.C. 701.02; and (3) a volunteer fireman employed by a village not specifically shown to be a municipal corporation enjoys no immunity under R.C. 701.02.
The third "issue" is not relevant to this appeal or to the case in toto since it is no longer being argued by appellant.
The court of appeals reversed, holding that R.C. 701.02 immunity did not extend to volunteer firemen.
On appeal, this court reversed, finding that volunteer firemen did qualify for R.C. 701.02 immunity. The case was remanded to the court of appeals, however, for consideration of two issues: (1) whether immunity is precluded on the grounds that a private vehicle is not fire-fighting equipment, and (2) whether driving to a fire station in a private vehicle qualifies as the performance of a "government function" within the meaning of R.C. 701.02. This court stated in Dougherty I, at 71:
"These issues were raised by * * * [Dougherty] in his assignments of error and brief filed in the court of appeals. The court of appeals, however, failed to address all assignments of error as required by App. R. 12(A) * * *."
App. R. 12(A) reads, in pertinent part, as follows:
"* * * All errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision as to each such error."
On remand, the court of appeals chose not to address these issues on the grounds that it had previously ruled on the only assignment of error briefed by appellant, thereby satisfying the requirements of App. R. 12(A).
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Gustin Lawrence Co., L.P.A., Mr. James W. Gustin and Mr. Kevin Jones, for appellee.
Mr. Wendall Sullivan, Mr. Joseph M. Fischer and Mr. John P. Scahill, for appellant.
In Dougherty I, this court issued a clear directive on remand to the court of appeals. Although the lower court is technically correct in that appellant had originally briefed only one assignment of error, we specifically ordered a consideration of the issue of whether the operation of a personal vehicle precludes R.C. 701.02 immunity status. An inferior court has no discretion to disregard the clear mandate of a superior court. State, ex rel. Potain, v. Mathews (1979), 59 Ohio St.2d 29, 32 [13 O.O.3d 17]. See, also, Brown v. Borchers Ford, Inc. (1978), 53 Ohio St.2d 171 [7 O.O.3d 319].
We therefore repeat our directive to the court of appeals to consider the issue of whether R.C. 701.02 immunity attaches when the fireman is operating his personal vehicle on the way to the firehouse in response to an emergency call, on the arguments as briefed in that court originally.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., concurs in judgment only.