State ex rel. Potain v. Mathews

• Decision Date: 03 July 1979
• Docket Number: No. 78-1082,78-1082
• Citation: 391 N.E.2d 343,59 Ohio St.2d 29,13 O.O.3d 17
• Parties: , 13 O.O.3d 17 The STATE, ex rel. POTAIN, S. A., Appellee, v. MATHEWS, Judge, Appellant.
• Court: Ohio Supreme Court

Page 29

59 Ohio St.2d 29

391 N.E.2d 343, 13 O.O.3d 17

The STATE, ex rel. POTAIN, S. A., Appellee, v. MATHEWS, Judge, Appellant.

No. 78-1082.

Supreme Court of Ohio.

July 3, 1979.

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.

Dinsmore, Shohl, Coates & Deupree, Frank C. Woodside, III, and Jane M. Grote, Cincinnati, for appellee.

Simon L. Leis, Jr., Pros. Atty., and Robert E. Taylor, Cincinnati, for appellant.

PER CURIAM.

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...