State ex rel. Starner v. DeHoff, 84-1867

• Decision Date: 10 July 1985
• Docket Number: No. 84-1867,84-1867
• Citation: 18 Ohio St.3d 163,480 N.E.2d 449,18 OBR 219
• Parties: , 18 O.B.R. 219 The STATE, ex rel. STARNER et al., Appellees, v. DeHOFF, Judge, et al.; Yoder Lumber Co., Appellant.
• Court: Ohio Supreme Court

Page 163

18 Ohio St.3d 163

480 N.E.2d 449, 18 O.B.R. 219

The STATE, ex rel. STARNER et al., Appellees, v. DeHOFF, Judge, et al.; Yoder Lumber Co., Appellant.

No. 84-1867.

Supreme Court of Ohio.

July 10, 1985.

Relator-appellee Raymond J. Starner alleges he sustained injuries when employees of respondent-appellant, Yoder Lumber Company ("Yoder"), negligently caused a tree to fall upon him. Relator further charges that while under the care of Dr. Robert B. Bird, for the injuries sustained as a result of the accident, relator received negligent treatment. The result of these negligent acts is said to have rendered relator a paraplegic.

On February 1, 1984, relators, Raymond and Marilyn Starner, filed a complaint against Yoder in the Court of Common Pleas of Holmes County. Relators subsequently dismissed their complaint in Holmes County and filed a complaint in the Court of Common Pleas of Stark County on March 28, 1984. This action as amended named Yoder, Robert B. Bird, M.D., Inc. and Robert B. Bird, M.D. ("Bird") as defendants.

On April 26, 1984, Yoder filed a motion for severance of claims and transfer of venue. On July 25, 1984, Judge Harold DeHoff granted this motion, severing the Yoder claim and transferring it to Holmes County. This claim was thereafter transferred and assigned to Judge James Estill of the Court of Common Pleas of Holmes County.

On August 24, 1984, relators filed a notice of appeal to the Court of Appeals for Stark County. While this appeal was pending, relators filed a complaint in the court of appeals seeking a writ of mandamus directing the Court of Common Pleas of Stark County to retain jurisdiction over relators' claim against Yoder, and a writ of prohibition directing the Court of Common Pleas of Holmes County to refrain from exercising jurisdiction over said claim.

On October 4, 1984, the court of appeals dismissed relators' appeal. However, on October 23, 1984, the court granted the requested writs of mandamus and prohibition.

The cause is now before this court upon an appeal as of right.

Scanlon & Gearinger Co., L.P.A., Timothy F. Scanlon, Akron, Critchfield, Critchfield, Critchfield & Johnston and David N. Spector, Wooster, for appellees.

Roetzel & Andress, Ronald B. Lee and Douglas L. Talley, Akron, for appellant.

PER CURIAM.

In order for a writ of mandamus to issue, relators must establish: (1) that they have a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the requested acts, and (3) that relators have no plain and adequate remedy in the ordinary course of the law. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 , paragraph one of the syllabus.

In order for a writ of prohibition to issue, relators must establish: (1) that the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of such power is unauthorized by law, and (3) that the refusal of the writ will result in injury for which no other adequate remedy exists. State, ex rel. Northern Ohio Tel. Co., v. Winter (1970), 23 Ohio St.2d 6, 8, 260 N.E.2d 827 .

At issue in this action is the propriety of the Stark County court's severance of relators' claims against Yoder and Bird, and the subsequent transfer of venue of the Yoder claim to Holmes County.

There can be no question that Yoder and Bird were proper parties for joinder under Civ.R. 20. In Ryan v. Mackolin (1968), 14 Ohio St.2d 213, 237 N.E.2d 377 , this court found that when a tort-produced injury is compounded by a subsequent tort, resulting in a single injury, the tortfeasors may be joined in a single action. Hence, the joinder of the claims against Yoder and Bird in the Stark County court was proper.

However, appellant contends that Civ.R. 21 provides the courts with the discretionary power to sever all claims before them, not just those claims which have been misjoined. In support, appellant cites a number of federal cases wherein the courts allowed the severance of claims where no misjoinder existed under Fed.R.Civ.P. 21, which is virtually identical to Civ.R. 21. Toro Co. v. Alsop (C.A.8, 1977), 565 F.2d 998, certiorari denied (1978), 435 U.S. 952, 98 S.Ct. 1579, 55 L.Ed.2d 802; Wyndham Associates v. Bintliff (C.A.2, 1968), 398 F.2d 614, certiorari denied (1968), 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438; Hess v. Gray (N.D.Ill.1979), 85 F.R.D. 15; Thee v. Marvin Glass & Associates (E.D.N.Y.1976), 412 F.Supp. 1116; Leesona Corp. v. Cotwool Mfg. Corp. (W.D.S.C.1962), 204 F.Supp. 139.

Appellant's reliance on federal case law in this instance is misplaced. Each of the above decisions rests on the federal doctrine of forum non conveniens, which permits the severance of claims in order to transfer a claim to a more convenient forum. Section 1404(a), Title 28, U.S.Code. In State, ex rel. Consolidated Rail Corp., v. Gorman (1982), 70 Ohio St.2d 274, 275, 436 N.E.2d 1357 , this court noted that although the states were free to accept or reject the doctrine of forum non conveniens, Ohio had neither judicially adopted the doctrine, nor embodied it in any rule or statute.

In regard to appellant's proposed construction of Civ.R. 21, the Staff Notes to this rule state that "Rule 21 provides that the misjoined claim may be severed and proceeded with separately." Such explicit wording conclusively limits the application of Civ.R. 21 to those claims which have been misjoined.

Appellant next asserts that a writ of prohibition should not issue to prevent the Court of Common Pleas of Holmes County from exercising jurisdiction when such court's venue is properly invoked under Civ.R. 3(B).

This proposition is without merit. A review of the record reveals that appellees' original negligence action was properly venued in Stark County on the basis of Bird's residency, place of business, and the fact that the alleged cause of action against Bird occurred in Stark County. Civ.R. 3(B)(1), (2) and (6). Pursuant to Civ.R. 3(E), if venue is proper as to one defendant, then it is proper as to all. Thus, when the action filed in Stark County listed Bird as a defendant, Stark County was a proper venue as to Yoder.

Under the Ohio Rules of Civil Procedure, the only basis for a transfer of venue from a county where the venue is proper is when the transfer is necessary to...