Summary
affirming court of appeals' issuance of writ of mandamus to compel trial court to strike claims in complaint that court of appeals had ordered dismissed with prejudice
Summary of this case from State ex rel. Cowan v. GallagherOpinion
No. 78-1082
Decided July 3, 1979.
Actions — Dismissal of complaint — Mandate in prior appeal — Trial court bound to follow.
APPEAL from the Court of Appeals for Hamilton County.
Frank Telley died as a result of injuries he sustained on April 26, 1969, when the jacking section of the crane on which he was working collapsed.
Telley's widow initiated wrongful death and survivorship actions against Turner Construction Company, the general contractor for the construction project, and Flack Equipment Company, the lessor of the crane. The defendants impleaded CHC Fabricating Corporation, the decedent's employer, as a third-party defendant. Subsequently, Flack Equipment and CHC Fabricating impleaded, as fourth-party defendants, Manitowac Engineering Company, the importer and seller of the crane, and Potain, S.A., a French corporation which manufactured the crane.
Potain was served by certified mail at its Paris office. Potain's motion to quash service and dismiss for lack of personal jurisdiction was denied by the trial court. Thereafter, Turner Construction, Flack Equipment, and Manitowac Engineering cross-claimed against Potain for indemnification.
Settlement negotiations were then commenced between all parties except Potain. As a result of these negotiations, all the defendants except Potain entered into a settlement agreement with the plaintiff wherein they collectively paid her $50,000 and assigned to her their indemnity claims against Potain. In return, plaintiff dismissed her claims against the settling defendants.
On April 14, 1975, plaintiff filed an amended complaint in the trial court, alleging four indemnity claims against Potain, as well as claims for wrongful death and survivorship. Potain, in response thereto, filed a motion to quash service and to dismiss the amended complaint for lack of personal jurisdiction, failure to state a claim, and the expiration of the statute of limitations.
The trial court found that the amended complaint was filed after the statute of limitations had run, and dismissed the wrongful death and survivorship counts with prejudice. (The court, however, overruled Potain's motion with respect to the four indemnity claims.)
Mrs. Telley appealed the dismissal to the Court of Appeals. That court affirmed the judgment of the trial court. However, the Court of Appeals based its affirmance upon the ground that plaintiff had failed to allege facts sufficient to show that the trial court had personal jurisdiction over the defendant Potain. Although we have serious question of the soundness of the dismissal of the complaint with prejudice, and also question the refusal of the court to permit the plaintiff to amend her complaint, no further appeal was taken by the plaintiff.
Plaintiff then filed a second amended complaint in the trial court, incorporating not only the four indemnity claims, but also the wrongful death and survivorship claims which had previously been dismissed with prejudice. Potain filed a motion to strike this complaint and a motion to quash service and dismiss for lack of personal jurisdiction. Both motions were denied by the trial court.
Potain thereafter filed a complaint in mandamus against the trial judge, Judge Mathews, seeking to compel him to strike the second amended complaint, on the ground that his refusal to do so was inconsistent with the prior mandate of the Court of Appeals. Mrs. Telley, as amicus curiae in the mandamus action, filed a motion for modification and clarification of the mandate of the Court of Appeals in its prior decision. After a submission of memoranda on the issue of whether one panel of an appellate court could amend or modify a decision of another panel of that court, that motion was denied. The court then issued a writ of mandamus commanding respondent Mathews to comply with the terms of the prior mandate, and strike the second amended complaint.
The cause is now before this court on appeal as of right.
Messrs. Dinsmore, Shohl, Coates Deupree, Mr. Frank C. Woodside, III, and Ms. Jane M. Grote, for appellee.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Robert E. Taylor, for appellant.
Despite the factual complexity of the proceedings culminating in this appeal, the legal issues presented herein are relatively simple. The principal question before this court is whether a common pleas court is bound by the mandate of an appellate court rendered in a prior appeal in the same case.
Respondent-appellant, the judge in the Common Pleas Court, contends that he did not abuse his discretion by refusing to strike the second amended complaint in the case then before him. The short answer to this contention is that appellant had no discretion to refuse to strike that complaint, at least to the extent that the complaint realleged certain counts previously dismissed with prejudice. This is so even though the Court of Appeals may have been in error in dismissing the wrongful death and survivorship causes of action with prejudice.
The dismissal of an action with prejudice is a complete adjudication of the issues presented by the pleadings. Smoot v. Fox (C.A. 6, 1964), 340 F.2d 301, 303. It follows that the dismissal with prejudice of less than all the claims in an action is a complete adjudication of the issues presented by those specific claims.
In the action giving rise to the instant action in mandamus, appellant filed a judgment entry which provided, in part, that:
"* * * it is ordered that the wrongful death and survivorship causes of action set forth in the Fifth and Sixth Claims of the plaintiff's Amended Complaint are hereby dismissed with prejudice and final judgment is entered thereon * * *." This judgment was subsequently affirmed by the Court of Appeals, albeit upon different grounds.
At that point in the course of the litigation, the plaintiff, Mrs. Telley, had several options available to her. She could have filed a motion for reconsideration in the Court of Appeals, seeking to have the dismissal with prejudice modified to a dismissal without prejudice; she also could have sought to have the cause certified to this court. She chose instead to file an amended complaint in the trial court, setting forth the same claims which had previously been dismissed with prejudice.
When Mrs. Telley failed to follow the procedural avenues open to her, the dismissal with prejudice became the law of the case, and the trial court was bound to follow the mandate, whether correct or incorrect, of the Court of Appeals. A lower court has no discretion, absent extraordinary circumstances, to disregard the mandate of a superior court in a prior appeal in the same case. An example of such a circumstance would be where a holding of the Court of Appeals is inconsistent with an intervening decision by this court.
The doctrine of law of the case is necessary, not only for consistency of result an the termination of litigation, but also to preserve the structure of the judiciary as set forth in the Constitution of Ohio. Article IV of the Ohio Constitution designates a system of "superior" and "inferior" courts, each possessing a distinct function. The Constitution does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals.
We hold that the Court of Appeals was correct in issuing a writ of mandamus, insofar as that writ ordered appellant to strike those claims which had previously been dismissed with prejudice.
The indemnity counts of plaintiff's second amended complaint present a different question, however. Plaintiff Telley acquired those claims by assignment from the four settling defendants. They were neither dismissed by the trial court, nor the subject of the appeal to the Court of Appeals. Technically, the Court of Appeals erred in issuing a writ of mandamus ordering that the entire second amended complaint be stricken, for the indemnity counts were not subject to the doctrine of law of the case.
We need not decide whether the four indemnity counts state a claim once the underlying wrongful death and survivorship claims are extinguished. We hold only that the court below erred in ordering the indemnity claims stricken. Further action regarding these claims is more appropriately conducted in the trial court.
Appellant contends further that the Court of Appeals, in the mandamus action, erred in refusing to clarify, sua sponte, the prior mandate of that court in the appeal brought by plaintiff Telley. It is appellant's position that such a clarification was appropriate, pursuant to Civ. R. 60. Appellant's argument is without merit.
Mrs. Telley attempted to have the court hearing the mandamus action clarify the mandate rendered in a different cause, between different parties, decided by a different panel of judges. Under these circumstances, we cannot say that the Court of Appeals abused its discretion in refusing to modify the prior mandate.
For the reasons expressed herein, the judgment of the Court of Appeals is modified so as to order that only counts five and six of the second amended complaint be stricken. As modified, the judgment is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.