COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67830 : ACCELERATED DOCKET DANNY P. DALLAS, ETC. : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : LAWRENCE G. STERN M.D., INC. ET AL.: PER CURIAM : Defendants-Appellees : : DATE OF ANNOUNCEMENT MAY 4, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 208736 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES LAWRENCE G. STERN, M.D.: CHRISTOPHER M. DEVITO, ESQ. DANA ANN GOLDSTEIN, ESQ. THOMAS TERRY III, ESQ. Morganstern, Macadams & Devito 1001 Lakeside Ave., Suite 1600 400 Burgess Bldg., 1406 W. 6th St. Cleveland, Ohio 44114-1192 Cleveland, Ohio 44113 FOR CLEVELAND CLINIC FOUNDATION: and GEORGE GORE, ESQ. JACK LANDSKRONER, ESQ. IRENE C. KEYSE-WALKER, ESQ. Landskroner & Phillips Company Arter & Hadden 55 Public Square 1100 Huntington Building Suite 1040 925 Euclid Avenue Cleveland, Ohio 44113-1904 Cleveland, Ohio 44114-1475 -2- - i - FOR APPELLEES: STEVEN J. GOLIAT, D.O. JOAN A. FORD, ESQ. JOHN A. SIMON, ESQ. Jacobson, Maynard, Tuschman and Kalur 1001 Lakeside Avenue, #1600 Cleveland, Ohio 44114-1192 SUTEK LIE, M.D. LYNN L. MOORE, ESQ. 1501 Euclid Avenue 7th Floor Bulkley Bldg. Cleveland, Ohio 44115 MAGNATECH, ET AL. JOHN B. ROBERTSON, ESQ. 1501 Euclid Avenue 7th Floor Bulkley Bldg. Cleveland, Ohio 44115 -2- PER CURIAM: This appeal was filed, briefed, and argued as an accelerated appeal pursuant to Local R. 25 of this court. Danny Dallas, plaintiff-appellant, appeals the trial court's dismissal of his medical malpractice/wrongful death action against Lawrence G. Stern, M.D., Inc., et al. The trial court dismissed the action based upon this court's opinion in Dallas v. The Cleveland Clinic (December 20, 1993), Cuyahoga App. No. 64333, unreported. Dallas assigns the following error for our review: THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY AN INTERVENING OHIO SUPREME COURT DECISION AND INSTEAD RELIED ONLY ON THE COURT OF APPEALS' PRIOR RULING. For the reasons set forth below, we reverse the decision of the trial court. At the time this action was commenced, R.C. 2307.42 required an attached affidavit to a malpractice complaint. The affidavit was required to contain averment that plaintiff has conferred with an expert who believes reasonable grounds exist for the action. Because Dallas's complaint of April 8, 1991 did not have such an affidavit, the trial court granted Cleveland Clinic's motion for summary judgment. Dallas appealed the summary judgment to this court in Dallas v. Cleveland Clinic, Inc. (December 20, 1993), Cuyahoga App. No. 64333, unreported. On or about November 18, 1993, after oral arguments in the appellate case, Dallas filed a Motion for Leave to File an Amended Complaint in the trial court. Within two weeks, the defendants -3- each filed Motions to Dismiss for Lack of Subject Matter Jurisdiction. In a decision journalized December 20, 1993, this court held the trial court should have dismissed the claims for lack of subject matter jurisdiction because Dallas failed to include the affidavit required by R.C 2307.42. Dallas at 9. It is well established that orders entered by the trial court without subject matter jurisdiction are null and void. *** As a result, the order of the trial court granting summary judgment in favor of the Clinic is a nullity and plaintiff's appeal herein must be dismissed for lack of subject matter jurisdiction. Id. On February 29, 1994, before the trial court had ruled on the defendants' motions to dismiss, the Supreme Court of Ohio decided Hiatt v. Southern Health Facilities (1994), 68 Ohio St.3d 236. In Hiatt, the Supreme Court of Ohio considered whether there was a conflict between R.C. 2307.42 and Civ.R. 11. R.C. 2307.42 provides a trial court does not have jurisdiction over a medical claim unless the underlying complaint is accompanied by an affidavit of the claimant's attorney stating that he has unsuccessfully requested examination or copying of the claimant's medical records. Civ.R. 11 provides "except when otherwise specifically provided by these rules, pleadings need not be verified or accompanied by affidavit." Hiatt, which was decided on February 9, 1994, held R.C. 2307.42 conflicts with Civ.R. 11; consequently, the affidavit is not required and R.C. 2307.42 is invalid. Despite the ruling in -4- Hiatt, the trial court granted the defendants' motions to dismiss on August 5, 1994. In this appeal, Dallas argues the trial court erred in granting the motions in light of Hiatt. Dallas argues Hiatt was decided after this court rendered its decision, and the trial court should have applied Hiatt in deciding whether to dismiss his action. We agree. The Supreme Court of Ohio has held a lower court shall not ignore a Superior Court's ruling unless an extraordinary circumstance exists. Columbus Board of Education v. Franklin County Board of Revision, et al. (1994), 70 Ohio St.3d 344 citing State, ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29. An extraordinary circumstance is a holding by the Court of Appeals which is inconsistent with an intervening Supreme Court decision on the same subject matter. Id. at 32. It is no doubt that Hiatt was an intervening Supreme Court decision and that the Court of Appeals' decision was inconsistent with Hiatt. Consequently, the trial court was not required to follow this Court of Appeal's decision. In fact, the trial court may be obligated to ignore the Superior Court's decision when that decision is so clearly over- ruled by the intervening Supreme Court's decision. Columbus Board of Education v. Franklin County. Judgment reversed. -5- This cause is reversed. It is, therefore, considered that said Appellant recover of said Appellees his costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA ANN BLACKMON, PRESIDING J. DIANE KARPINSKI, JUDGE, CONCURS SARA J. HARPER, JUDGE, CONCURS WITH ATTACHED CONCURRING OPINION N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67830 DANNY P. DALLAS, ETC : : Plaintiff-appellant : : CONCURRING OPINION -vs- : : LAWRENCE G. STERN M.D., INC. : ET AL. : : Defendants-appellees : : : DATE OF ANNOUNCEMENT : OF DECISION : DATE: MAY 4, 1995 SARA J. HARPER, J., CONCURRING: I concur with the majority's opinion insofar as it reaches the conclusion that the trial court should have applied Hiatt v. Southern Health Facilities (1994), 68 Ohio St.3d 236. I also agree with the analysis presented by the majority, but am compelled to write separately to touch upon issues that were not included in the analysis. This case concerns the balancing of statutory and case law regarding the concept of "justice," and judicial economy and hierarchy. Section 5(B), Article IV of the Ohio Constitution provides that the Supreme Court of Ohio promulgates the Ohio Rules - 2 - of Civil Procedure which in turn control subsequent statutes purporting to govern procedural matters: The Supreme Court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right ***. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. R.C. 2307.42 reads as follows in pertinent part: (B) A *** court of common pleas *** shall have jurisdiction to hear and determine an action upon a medical *** claim only if the complaint or other pleading that sets forth the claim is supported by documentation as required by and described in division (C) of this section. (C)(1) The complaint or other pleading that sets forth a medical *** claim shall be accompanied by one of the following types of documentation: *** (c) An affidavit of the claimant's attorney or, if the claimant is not represented by an attorney, of the claimant that states that the claimant or the claimant's attorney has submitted a written request to the defendant in question for an examination of or the copying of the medical *** records of the claimant or, if different, the patient involved and that the defendant in question has failed to produce these records within 60 days after receipt of the request. *** (C)(3) A *** court of common pleas *** does not have jurisdiction to hear and determine an action upon a medical *** claim and shall dismiss the action if the complaint or other pleading that sets forth the claim is not supported as provided in division (C)(1) or (2) of this section. Civ.R. 11 governs the issue of whether pleadings need to be verified or accompanied by an affidavit. Pleadings are to be - 3 - verified or accompanied by an affidavit only when expressly required by the rules of civil procedure. Finally, Civ.R. 82 advises that subject matter jurisdiction is established by the Constitution and statutes of Ohio. Subject matter jurisdiction cannot be extended by the civil rules of procedure beyond that conferred by statute. Regarding R.C. 2307.42, the statute is invalid and of no further force and effect. Hiatt. A Supreme Court of Ohio opinion which interprets a statute has retrospective effect unless: (1) the decision is based on a case of first impression and not foreshadowed by prior cases; (2) retroactive application of the decision will impede operation of the statute; and (3) retroactive application of the decision will cause undue injustice and hardship. Evans v. Chapman (1986), 28 Ohio St.3d 132. Furthermore, the law of the case doctrine states that absent extraordinary circumstances, such as an intervening decision by the supreme court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case provided the material issues are substantially the same. The goals of the law of the case doctrine are three-fold. First, it ensures the consistency of results in a case. Second, the doctrine avoids endless litigation by settling the issues. Finally, it preserves the structure of superior and inferior courts as designed by the Ohio Constitution. The doctrine, however, is one of practice, not substance, and, therefore, will not apply if injustice is the - 4 - result. Nolan v. Nolan (1984), 11 Ohio St.3d 1, citing State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29. Courts have repeatedly reviewed the law of the case doctrine and the intervening decision exception through means of appeal. This court, e.g., elaborated upon the foregoing in State ex rel. Davis v. Cleary (1991), 77 Ohio Ap.3d 494. We held that the explicit modification of an intervening decision provides the trial court with a basis to exercise discretion in complying with our mandate. Consequently, there is no clear legal duty, and no corresponding legal right, to a sentence exactly following the court's decision in the underlying case. See, Costell, Admx. v. Toledo Hospital (6th Dist.), [], (1994) [look up cite]. (an intervening supreme court decision requires a waiver of the application of the law of the case doctrine thereby permitting the trial court to reconsider the issues before it). Applying the law of the case doctrine exception herein, the trial court, upon hearing the remaining claims, possessed discretion to either follow our appellate decision in Dallas v. Cleveland, Clinic, Inc. (Dec. 20, 1993), Cuyahoga App. No. 64333, unreported, or reconsider the issues based on the intervening decision in Hiatt. The trial court chose to dismiss all the claims based solely on slip op. 64333. The trial court failed to consider that the case was comprised of two segments, i.e., the trial court's grant of summary judgment to the Cleveland Clinic and its denial of summary judgment - 5 - regarding the remaining defendants. The trial court should have accorded separate and careful consideration to each segment, by virtue of this status differential, rather than a "blanket" dismissal based on a rule of practice. Such consideration shows that the ruling as to the Cleveland Clinic should remain undisturbed; the remaining litigation should be remanded for further consideration by the trial court, a conclusion reached by the majority. As the chronology of the facts indicates, Hiatt was decided almost two months after this court decided in slip. op. 64333 that the trial court did not have subject matter jurisdiction over the litigation. The trial court's decision was thus a nullity and the case required dismissal. We furthermore considered in slip. op. 64333 the history of the case, including the lengthy three-year litigation; the difficulty in procuring expert testimony; expert deposition testimony that denied negligence on the part of the Cleveland Clinic; and the proffering of contradictory testimony, without explanation or guarantee of testimony at trial, of an expert witness in an affidavit filed more than one year later. In actuality, appellant Dallas presented his case as if the statute was not in effect since the issue of jurisdiction did not arise until after the trial. Even under these circumstances, Dallas did not prevail regarding his claim against the Cleveland Clinic. Therefore, he had his "day in court" at least pertaining to his claim against the Cleveland Clinic. Moreover, and as defendants- - 6 - appellees point out, Dallas chose not to appeal slip. op. 64333 thus making it final and binding before Hiatt. Based on these facts, we presently do not need to consider whether Hiatt should be applied retrospectively as to the Cleveland Clinic because that segment of the case was tried and appealed as if the statute were of no force and effect. Finally, we found in slip. op. 64333 that Dallas failed to raise the issue of R.C. 2307.42 constitutionality until the post oral argument state of the appellate proceedings, and his argument did not satisfy the principles of constitutional challenge as stated in State v. Collier (1991), 62 Ohio St.3d 267, 269. The claim against the Cleveland Clinic was thus afforded full consideration by both the trial court and us in slip. op. 64333. The problem, however, is that the dismissals applied to the entire case, including the pending litigation before the trial court. As stated in Nolan, a trial court is bound to an appellate court decision unless there is an intervening supreme court decision in opposition to that ruling. In that case, the trial court may deviate from the reviewing court's mandate, however, such deviation should be exercised prudently. Since the law of the case doctrine is a rule of practice, not substantive law, it should not be applied when injustice results. Therefore, timely settlement of a case, and consistency of results of adherence to the judicial hierarchy cannot supersede the administration of justice. In this situation, the trial court must balance the rationale behind the - 7 - law of the case doctrine with the impact of the supreme court decision as applied to the particular facts. Therefore, we must consider that remaining questions of material fact require resolution. If the trial court's dismissal is affirmed, Dallas would unquestionably suffer undue hardship because a final decision would foreclose any chance of future litigation. Additionally, injustice would result, if as a bona fide litigant with a case strong enough to survive summary judgment, he was denied his "day in court" because of a statute which is no longer in effect. Conversely, the remaining three defendants knew they were parties to a litigation which included unresolved questions of fact. It is reasonable to believe that these defendants expected a continuation of the litigation. The continuation of the litigation, therefore, does not impose undue hardship or injustice on them. Based upon the foregoing, I concur in the majority's conclusion that the trial court's dismissal of all of the claims .