Judith A. Nicholson v. James E. Landis
| Decision Date | 27 February 1990 |
| Docket Number | 1404,90-LW-0977 |
| Parties | Judith A. NICHOLSON, Plaintiff-Appellant, v. James E. LANDIS, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Gwinn & Wallace, James A. Wallace and Susan L. Gwinn, Athens, for appellant.
Bricker & Eckler, Michael J. Renner, Columbus, for appellee O'Bleness Memorial Hospital.
Porter Wright, Morris & Arthur, William M. Todd, Columbus, for appellee Dr. Phillip D. Kinnard.
DECISION AND JUDGMENT ENTRY
This is an appeal from two judgments entered by the Athens County Court of Common Pleas, one granting a motion for summary judgment whereby O'Bleness Memorial Hospital (O'Bleness), defendant below and appellee herein, was dismissed from the case, and the other upon a jury verict finding in favor of Dr. Phillip D. Kinnard (Kinnard), defendant below and appellee herein. Judith A. Nicholson, plaintiff below and appellant herein, assigns the following errors:
"I THE TRIAL COURT ERRED IN SUSTAINING THE MOTION OF DEFENDANT-APPELLEE O'BLENESS MEMORIAL HOSPITAL FOR CHANGE OF VENUE AND IN TRANSFERRING THIS CASE FROM FRANKLIN COUNTY TO ATHENS COUNTY.
II THE TRIAL COURT ERRED IN SUSTAINING THE MOTION OF DEFENDANT-APPELLEE O'BLENESS MEMORIAL HOSPITAL FOR SUMMARY JUDGMENT AND IN DISMISSING O'BLENESS MEMORIAL HOSPITAL AS A PARTY DEFENDANT.
III THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE THE TESTIMONY OF FRANCIS C. JACKSON, M.D. ONL [sic] THE ISSUE OF LIABILITY.
IV THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE DECISION OF THE ARBITRATION PANEL.
V THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON THE STANDARD OF CARE REQUIRED OF DEFENDNAT [sic]-APPELLEE PHILIP D. KINNARD, M.D."
The following facts are pertinent to this appeal. On March 5, 1983, at the intersection U.S. Route 50 and State Route 329 in Athens County, Ohio, an automobile operated by James E. Landis collided with a motorcycle being operated by Robert H. Nicholson (decedent) and on which appellant was a passenger. Both appellant and decedent incurred serious injuries as a result of the accident and were transported to O'Bleness for treatment.
Dr. John Ortman was called by one William Cooley, a friend of appellant and decedent, and was asked to go to O'Bleness to treat the Nicholsons. Before proceeding to the hospital, Dr. Ortman telephoned Dr. David Brown, the attending emergency room physician at O'Bleness, and after discussing the case, Dr. Ortman told Dr. Brown to call Kinnard. Dr. Ortman went to the hospital and began treatment of the Nicholsons. However, after Kinnard arrived at O'Bleness, both Dr. Brown and Dr. Ortman believed Kinnard to be ultimately responsible for the care and treatment of decedent.
After examining decedent, Kinnard decided that decedent should be transferred to Saint Anthony Hospital in Columbus. Kinnard discussed his decision with both Dr. Brown and Dr. Ortman and decedent was subsequently placed in an ambulance for transport to Columbus. Decedent, during transport, became more combative and lost consciousness. Decedent died at Lancaster-Fairfield Community Hospital at 12:25 A.M. on March 6, 1983.
Appellant filed suit on her own behalf and as administratrix of decedent's estate against James E. Landis and his parents in Athens, Ohio. She subsequently filed suit, on March 2, 1984, in Franklin County and named as defendants, inter alia, Landis, his parents, Kinnard and O'Bleness. The only reason venue was proper in Franklin County was because Landis and his parents resided in Franklin County. Appellant apparently settled her claim against the Landis's in the Athens County case and, on November 7, 1984, dismissed the Landis's from the Franklin County action.
Upon motion of some of the defendants, the trial court dismissed the Franklin County case for lack of venue since the Landis's were no longer parties. In an entry filed on June 13, 1985, the Franklin County Court of Appeals reversed and held that any claim of improper venue was waived for failure to timely raise the issue.
O'Bleness filed for summary judgment on June 12, 1987. While the motion was pending, the cause was referred to arbitration pursuant to R.C. 2711.21 and Franklin County Local Rule 61 on June 22, 1987. On November 12, 1987, the arbitration panel filed their decision with the court, which decision reads as follows:
"It is the unanimous decision of the Panel after the evidence adduced at the hearing and subsequently reviewing the Deposition testimony, the briefs and other matters that defendant O'Bleness Hospital be absolved from liability.
/s/ Karl H. Schnieder
Robert E. Frost
Richard M. Huhn
Further it is the majority decision of the Panel that Defendant Philip Kinnard be absolved from liability.
/s/ Karl H. Schnieder
Robert E. Frost
Dissenting /s/ Richard M. Huhn"
Appellant rejected the decision of the panel and filed an amended complaint pursuant to R.C. 2711.21(C) on December 11, 1987.
On February 8, 1988, the court sustained another motion for change of venue from Franklin County to Athens County. The new motion was based upon the movant's assertion that new facts had arisen since the previous motion^i.e., neither appellees nor the court was aware that appellant had filed the case against the Landis's in Athens County before she filed the case in Franklin County. In granting the motion, the court stated the following:
"[A]s a matter of law that where a court lacks subject matter juriscition over a cause of action and personal jurisdiction over the Defendant named in that cause of action, the presence of such Defendant named as a named party in the case can not be utilized to satisfy a venue criterion under Civ.R. 3(B). Succinctly stated, a case is not properly venued in a county solely due to the naming of a Defendant over which the Court lacks personal jurisdiction and also lacks subject matter over the stated cause of action.
It is apparent that the Landises were named as Defendants in this case solely in order to allow Plaintiff to prosecute her malpractice cause of action against the remaining Defendants away from Athens County. In light of this and Plaintiff's failure to fully apprise the Court of Appeals of all relevant facts, this Court holds that extraordinary circumstances exist such that the Court of Appeals' prior ruling should not, in the interests of justice, be deemed to be the "law of this case.' Accordingly, this Court finds that Defendant's motion for a change of venue pursuant to Civ.R. 3(C)(1) has been timely asserted.
Further, this Court finds that this action is not properly venued in Franklin County, and holds that pursuant to Civ.R. 3(B)(1), (2), (3), and (6) the county of proper venue is Athens County."
During the pendency of the case, all defendants were dismissed except O'Bleness and Kinnard.®1¯ On June 14, 1988, the Athens County Court of Common Pleas filed an entry sustaining O'Bleness's June 12, 1987 motion for summary judgment. Thus, when the case went to trial on July 11, 1988, only Kinnard remained a defendant. At the end of the trial, the jury returned a verdict finding that Kinnard was not negligent.
In her first assignment of error, appellant asserts that the Franklin County Court of Common Pleas erred in sustaining the second motion to change venue. Appellant contends that since the Franklin County Court of Appeals had already determined that any error in venue was waived, that decision became the law of the case on the issue of venue, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1. Therefore, appellant concludes, the court's only option was to deny the second motion for change of venue.
The Ohio Supreme Court in Nolan, supra, stated the following with respect to the law of the case:
"Briefly, the doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 730, reversed on other grounds New York Life Ins. Co. v. Hosbrook (1935), 130 Ohio St. 101 ; Gottfried v. Yocum (App.1953), 72 Ohio Law Abs. 343, 345.
The doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results. Gohman, supra, at 730-731. However, the rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. See State, ex rel. Potain, v. Mathews (1979), 59 Ohio St.2d 29, 32 .
In pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts. See e.g., State, ex rel. Special Prosecutors, v. Judges (1978), 55 Ohio St.2d 94 ; Charles A. Burton, Inc. v. Durkee (1954), 162 Ohio St. 433 ; Schmelzer v. Farrar (1976), 48 Ohio App.2d 210, 212 ; Miller v. Miller (1960), 114 Ohio App. 235 . Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law. See, generally, Thomas v. Viering (App.1934), 18 Ohio Law Abs. 343, 344; Loyer v. Kessler (App.1925), 3 Ohio Law Abs. 396. For additional authorities, see Williams v. board of Trustees (1924), 210 App.Div. 161, 205 N.Y.Supp. 742; Littmann v. Harris (1913), 157 App.Div. 909, 142 N.Y.Supp. 341. Moreover, the trial court is without authority to extend or vary the mandate given. Briggs v. Pennsylvania RR. Co. (1948), 334 U.S. 304, 306; United States v. Pink (S.Ct.1942), 36 N.Y.Supp.2d 961, 965; Hampton v. Superior Court ...
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