Lantsberry v. Tilley Lamp Co.

• Decision Date: 21 July 1971
• Docket Number: 70-393,Nos. 70-392,s. 70-392
• Citation: 56 O.O.2d 179,272 N.E.2d 127,27 Ohio St.2d 303
• Parties: , 56 O.O.2d 179 LANTSBERRY, Appellee, v. The TILLEY LAMP CO., Ltd., et al., Appellants, et al. WISE, Appellee, v. The TILLEY LAMP CO., Ltd., et al., Appellants, et al.
• Court: Ohio Supreme Court

Page 303

27 Ohio St.2d 303

272 N.E.2d 127, 56 O.O.2d 179

LANTSBERRY, Appellee, v. The TILLEY LAMP CO., Ltd., et al., Appellants, et al.

WISE, Appellee, v. The TILLEY LAMP CO., Ltd., et al., Appellants, et al.

Nos. 70-392, 70-393.

Supreme Court of Ohio.

July 21, 1971.

Syllabus by the Court

1. A judgment of a trial court sustaining motions to quash service of summons and dismissing defendants as parties to the action is a final appealable order, as is likewise the ruling of a Court of Appeals reversing such order.

2. Where there is no proof of record establishing the existence of minimal contacts between Ohio and a nonresident corporation at the time service of summons on the corporation was made under R.C. §§ 2307.382 and 2307.383, a motion to quash such service should be sustained.

3. Where an injury occurs in a foreign jurisdiction, the running of the statute of limitations is not tolled by the absence of the defendant from the state of Ohio. (Wentz v. Richardson, 165 Ohio St. 558, 138 N.E.2d 675, followed.)

4. R.C. §§ 2307.382 and 2307.383 are not applicable to a cause of action which was both filed and barred by the statute of limitations prior to the effective date of such sections.

On December 6, 1963, the plaintiffs in these cases consolidated for hearing, Richard Lantsberry and Robert P. Wise, filed petitions in the Court of Common Pleas of Cuyahoga County, alleging that the failure of a portable heater on a camping trip in the state of Pennsylvania on December 9, 1961, caused them to suffer injuries consisting of frostbite. Petitions were filed in the Common Pleas Court of Cuyahoga County three days before the running of the statute of limitation in 1963. The original defendants in these actions included the Tilley Lamp Company, Limited, of London, England. The record indicates that service was obtained on all of the codefendants except the Tilley Lamp Company, Limited, and that service was not obtained upon the latter within 60 days, as then required by R.C. § 2305.17. Nearly two years later, R.C. §§ 2307.382 and 2307.383, commonly called the long-arm statutes, were enacted becoming effective September 28, 1965. Under those sections, the plaintiffs filed an alias praecipe, naming among other new defendants, the Tilley Lamp Company, Limited, Belfast, North Ireland, and the Tilley Lamp Company (U. S. A.), Limited.

Under the long-arm statutes, on December 9, 1965, plaintiffs filed alias praecipes and service was made on the Tilley Lamp Company, Limited, of London, England, and two new defendants, the Tilley Lamp Company, Limited, Belfast, North Ireland, and the Tilley Lamp Company (U. S. A.), Limited. In each case, the three Tilley Lamp companies filed a motion to quash service of summons, which the Common Pleas Court of Cuyahoga County, in 1966, overruled. Upon appeal, the Court of Appeals for Cuyahoga County, in 1967, overruled plaintiffs' motions to dismiss the appeal on the ground that the overruling of the motion to quash is not a final appealable order, and found that there was no jurisdiction over the Tilley Lamp companies and reversed the judgments of the Common Pleas Court.

Upon appeal, this court (14 Ohio St.2d 41, 236 N.E.2d 530) held that an order overruling the motion to quash was not a final appealable order and that the Court of Appeals had no jurisdiction to review.

Upon return of the cases, the Common Pleas Court vacated its prior rulings and sustained the motions to quash service of summons and dismissed the three Tilley Lamp companies as parties. On May 19, 1970, the Court of Appeals reversed the judgments of the Court of Common Pleas and remanded the causes to the trial court, with instructions to overrule the motions to quash.

The cases are now before this court pursuant to the allowance of motions by the Tilley Lamp Companies to certify the records in both cases.

Ellis B. Brannon, and Joseph M. Mancini, Cleveland, for appellees.

Spieth, Bell, McCurdy & Newell, and Ron Tonidandel, Cleveland, for appellants.

STRAUSBAUGH, Justice.

Appellees claim that since the Court of Appeals ordered the Common Pleas Court to overrule the motions to quash, that under our prior decision (14 Ohio St.2d 41, 236 N.E.2d 530), 'there should be no question that the law of Ohio is that a motion to quash is not a final appealable order.'

A final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, is 'an order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial.' R.C. § 2505.02. The latter portion of that section relating to 'an order vacating or setting aside a judgment and ordering a new trial' was declared to be 'not a final determination of the rights of the parties' and did 'not constitute a judgment or final order' and therefore was 'in conflict with Section 6, Article IV of the Ohio Constitution.' Green v. Acacia Mutual Life Ins. Co. (1951), 156 Ohio St. 1, 100 N.E.2d 211. Green was overruled in Price v. McCoy Sales & Service (1965), 2 Ohio St.2d 131, 207 N.E.2d 236.

It is clear, from those decisions and the opinion of Justice Leach in Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 285, that the entire concept of 'final orders' is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof.

Here, the orders of the Common Pleas Court did not merely sustain the motions to quash service of summons, but also dismissed the three Tilley Lamp defendants. Such dismissal thus disposed of the cases as to such defendants. (Civil Rule 54(B) has no application to these cases since the judgments of the trial court were entered prior to the effective date of the new Civil Rules.)

The orders of the Court of Appeals, reversing the judgments of the Common Pleas Court and remanding the causes to the Common Pleas Court, with instructions to overrule the motions to quash, are final dispositions of the cases so far as the Court of Appeals is concerned. The orders of the Court of Appeals then become final orders, subject to appeal to this court. The same was true in the prior proceedings with regard to the judgments of the Court of Appeals which were reversed by this court.

We turn now to the question of whether the Ohio long-arm statute can be applied retroactively to validate service on a cause of action which accrued prior to the adoption of the long-arm statute, even though the petition was filed prior to the adoption of the long-arm statute. This court held, in paragraph one of the syllabus of Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 242 N.E.2d 658:

'Section 28, Article II of the Ohio Constitution prohibiting the passage of...