Nichols v. Villarreal

• Decision Date: 08 August 1996
• Docket Number: No. 96,96
• Parties: NICHOLS et al., Appellants, v. VILLARREAL et al., Appellees. * CA 2402.
• Court: Ohio Court of Appeals

Page 343

113 Ohio App.3d 343

680 N.E.2d 1259

NICHOLS et al., Appellants, v. VILLARREAL et al., Appellees. ^*

No. 96 CA 2402.

Court of Appeals of Ohio Fourth District, Scioto County.

Decided Aug. 8, 1996.

Luper, Sheriff & Neidenthal, Jack L. Stewart and Brigid E. Heid, Columbus, for appellants.

Bannon, Howland & Dever Co., L.P.A., Robert E. Dever, Portsmouth, for appellees.

PETER B. ABELE, Presiding Judge.

This is an appeal from a summary judgment entered by the Scioto County Common Pleas Court in favor of Richard R. Villarreal, M.D., and Richard R. Villarreal, M.D., Inc., defendants below and appellees herein, (hereinafter "appellee"), and against John Nichols, John Nichols as administrator of the estate of William Nichols, Dorthea Nichols, and Jerry E. Nichols, plaintiffs below and appellants herein.

Appellants assign the following error:

"The trial court committed reversible error in granting summary judgment in favor of defendants Villarreal."

On December 6, 1991, appellants filed the instant medical malpractice action against appellee. On June 5, 1992, appellee filed a motion for leave to file a third-party complaint. The trial court granted the motion. On June 9, 1992, appellee filed a third-party complaint against the Ohio Department of Mental Health and Mental Retardation. On June 22, 1992, appellee filed an amended third-party complaint against the Ohio Department of Mental Health and the Ohio Department of Mental Retardation and Developmental Disabilities rather than against the Ohio Department of Mental Health and Mental Retardation.

Also on June 22, 1992, the Ohio Department of Mental Health filed a motion to dismiss the third-party complaint, alleging that the Court of Claims has exclusive original jurisdiction over the controversy between appellee and the Ohio Department of Mental Health.

On June 30, 1992, the trial court, in response to appellee's petition to remove the action to the Court of Claims pursuant to R.C. 2743.03, directed the clerk of courts to transmit all pleadings to the Court of Claims. On July 2, 1992, the trial court, citing the transfer of the action to the Court of Claims, overruled the Ohio Department of Mental Health's motion to dismiss the third-party complaint.

On June 7, 1993, appellee filed a motion in the Court of Claims pursuant to R.C. 2743.02(F), seeking a determination of whether appellee was an officer or employee of the state of Ohio and thereby entitled to immunity pursuant to R.C. 9.86. After conducting an evidentiary hearing on the motion, the Court of Claims determined that appellee was not an officer or employee of the state of Ohio and that appellee was therefore not entitled to immunity pursuant to R.C. 9.86.

On March 31, 1994, the Franklin County Court of Appeals affirmed the decision of the Court of Claims. See Nichols v. Villarreal (1994), 94 Ohio App.3d 173, 640 N.E.2d 557. The Franklin County Court of Appeals discussed the statutes and the facts involved in this action as follows:

"Pursuant to R.C. 2743.02(F), the trial court had the exclusive original jurisdiction to determine initially Villarreal's immunity under R.C. 9.86, which provides:

" '[N]o officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.'

"By its terms, R.C. 9.86 requires a preliminary determination concerning the status of an individual defendant, as the immunity provided under that section applies to officers or employees of the state. R.C. 109.36 defines a 'state officer' or 'employee' as:

" '[A]ny person who, at the time a cause of action against him arises, is serving in an elected or appointed office or position with the state; is employed by the state; or is rendering medical, nursing, dental, podiatric, optometric, physical therapeutic, psychiatric or psychological services pursuant to a personal services contract with a department, agency, or institution of the state. Officer or employee does not include any person elected, appointed, or employed by any political subdivision of the state.'

" * * *

" * * * Without a specific provision granting such immunity, we are unable to conclude on this record that the trial court erred in finding that Villarreal was not an employee of and was not working under a personal services contract with the state." Id., at 175-176, 178, 640 N.E.2d at 558, 559.

On September 29, 1994, appellee filed a motion for summary judgment in the Scioto County Common Pleas Court. In a memorandum accompanying the motion, appellee argued that pursuant to R.C. 340.03(D) and R.C. 2744.03(A)(6) he is entitled to immunity.

On May 19, 1995, the Court of Claims remanded the case to the Scioto County Common Pleas Court.

On July 21, 1995, appellee filed a supplemental memorandum in support of his September 29, 1994 motion for summary judgment. In the supplemental memorandum, appellee argued that he is a state officer or employee entitled to immunity from liability pursuant to R.C. 9.86. Although appellee acknowledged that the Court of Claims and the Franklin County Court of Appeals had decided otherwise, appellee argued that the Ohio General Assembly had amended the R.C. 109.36(A) definition of "officer or employee" to include physicians who, like appellee, render medical services to patients in state institutions operated by the Department of Mental Health pursuant to an agreement between an institution and a board of alcohol, drug addiction, and mental health services. ¹

Amended R.C. 109.36(A) became effective on July 22, 1994, approximately four months after the Franklin County Court of Appeals affirmed the judgment of the Court of Claims. Appellee argued that the new R.C. 109.36(A) should be applied retroactively. In support of this argument, appellee submitted an affidavit of Vernal G. Riffe, Jr., which provided as follows:

"1. On July 22, 1994, I was Speaker of the House of Representatives for the State of Ohio;

"2. Further, I am personally familiar with the passage of House Bill 715, amending Section 109.36 of the Ohio Revised Code, and said House Bill became effective on July 22, 1994;

"3. The aforesaid House Bill was specifically passed to clarify the prior intent of the Legislature to afford immunity from civil malpractice actions to Dr. Richard Villarreal and to all physicians similarly situated who were and are working in State of Ohio mental hospitals "4. The aforesaid statute was intended to apply to all litigation pending or filed thereafter, and to grant immunity from civil suit to Dr. Richard Villarreal and to physicians in positions similarly situated."

On August 31, 1995, appellants filed a memorandum opposing appellee's motion for summary judgment. In the memorandum, appellants argued that pursuant to R.C. 2743.02(F) the Court of Claims has exclusive original jurisdiction to determine whether appellee is immune from liability pursuant to R.C. 9.86. Appellants noted that in Nichols v. Villarreal (1994), 94 Ohio App.3d 173, 640 N.E.2d 557, the Franklin County Court of Appeals affirmed the judgment of the Court of Claims holding that appellee is not immune from liability pursuant to R.C. 9.86. Appellants, acknowledging that R.C. 109.36(A) had been amended, argued that the amendment is not retroactive. Appellants cited R.C. 1.48 for the proposition that a statute is presumed to be prospective in its operation unless expressly made retroactive.

On September 6, 1995, appellee filed a reply memorandum. In it, appellee again argued that the amended R.C. 109.36 should be applied retroactively.

On December 15, 1995, the trial court entered judgment granting appellee's motion for summary judgment. The trial court found that the Ohio General Assembly intended amended R.C. 109.36(A) to be applied retroactively. Thus, the trial court found that extraordinary circumstances existed to justify a departure from the judgment of the Court of Claims that was affirmed in Nichols v. Villarreal (1994), 94 Ohio App.3d 173, 640 N.E.2d 557.

Appellants filed a timely notice of appeal.

In their sole assignment of error, appellants assert that the trial court erred by granting partial summary judgment in favor of appellee. Appellants raise several arguments in support of this assignment of error, including the following: (1) the trial court erred in disregarding the doctrine of res judicata and the doctrine of law of the case; (2) the Court of Claims had exclusive original jurisdiction pursuant to R.C. 2743.02(F) to determine whether immunity applies; (3) the Ohio General Assembly did not clearly express an intent to make amended R.C. 109.36(A) retroactive; (4) the affidavit of a single legislator does not reflect the views of the entire Ohio General Assembly; and (5) amended R.C. 109.36(A) is a substantive law and therefore a retroactive application of amended R.C. 109.36(A) violates Section 28, Article II of the Ohio Constitution.

Appellee responds by raising various arguments, including the following: (1) the doctrine of res judicata does not prevent a court from considering subsequent changes in the law; (2) a lower court may disregard a mandate of a higher court if extraordinary circumstances, such as a change of law, exist; (3) the affidavit of Vernal G. Riffe, Jr. demonstrates that the Ohio General Assembly intended to make amended R.C. 109.36(A) retroactive; (4) appellants submitted no documentary evidence to rebut the affidavit; (5) the Ohio General Assembly, by using the phrase "at the time a cause of action against him arises" in amended R.C. 109.36(A), clearly intended the statute to be retroactive; and (6) amended R.C. 109.36(A) is a remedial law, and therefore a retroactive application of...