1999 OHIO 56 - Gray v. SK Constr. Co.

[This opinion has been published in Ohio Official Reports at

87 Ohio St.3d 262

.]




  GRAY, ADMR., ET AL., APPELLANTS, v. SK CONSTRUCTION COMPANY ET AL;
                             CITY OF DAYTON, APPELLEE.
                  [Cite as Gray v. SK Constr. Co.,

1999-Ohio-56

.]
Discretionary appeal allowed—Court of appeals’ judgment reversed on authority
        of State ex rel. Ohio Academy of Trial Lawyers v. Sheward.
   (No. 99-1327–Submitted September 21, 1999–Decided December 1, 1999.)
      APPEAL from the Court of Appeals for Franklin County, No. 98AP-947.
                                  __________________
        David M. Deutsch Co., L.P.A., and David M. Deutsch, for appellants.
        Freund, Freeze & Arnold, Neil F. Freund and Shawn M. Blatt, for appellee.
                                  __________________
        {¶ 1} The discretionary appeal is allowed.
        {¶ 2} The judgment of the court of appeals is reversed, and the cause is
remanded on the authority of State ex rel. Ohio Academy of Trial Lawyers v.
Sheward (1999),

86 Ohio St.3d 451

715 N.E.2d 1062

.
        DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
        DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur separately.
        MOYER, C.J., and LUNDBERG STRATTON, J., dissent.
                                  __________________
        DOUGLAS, J., concurring.
        {¶ 3} For the reasons stated in my concurrence in Burger v. Cleveland Hts.
(1999),

87 Ohio St.3d 188, 189

718 N.E.2d 912

, I respectfully concur.
        RESNICK and F.E. SWEENEY, JJ., concur in the foregoing concurring
opinion.
                                  __________________
        MOYER, C.J., dissenting.
                             SUPREME COURT OF OHIO




        {¶ 4} I disagree with the decision of the majority, which reverses the
judgment of the court of appeals on the authority of State ex rel. Ohio Academy of
Trial Lawyers v. Sheward (1999),

86 Ohio St.3d 451

715 N.E.2d 1062

. The parties
in this case did not challenge the constitutionality of Am.Sub.H.B. No. 350, and,
therefore, I believe that the case should have been decided on the issue raised.
While it is true that if Sheward is to be followed in the instant case, the question
whether R.C. 2744.02(C) as amended by Am.Sub.H.B. No. 350 should be applied
retroactively to the instant case would be rendered moot, I would not want a vote
of concurrence in this case to in any way suggest that I believe Sheward should
necessarily be followed by this court in the future. Therefore, I dissent.
        {¶ 5} It is not unusual for this court to summarily decide pending cases that
raise legal issues dependent on those recently decided by the court in another case.
It has been my past practice in such circumstances to follow the law announced in
the earlier case, even where I dissented from the decision of the majority in that
earlier case. My reason is based on my belief that once this court announces its
opinion on an issue of law, that principle of law should be applied consistently to
all persons similarly situated, whether or not I agree with that principle.
        {¶ 6} Regrettably, I am compelled to make an exception to that practice in
this case. In view of irregularities in the assumption of jurisdiction and the
inclusion of inappropriate references to the conduct of the General Assembly in
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, as is more fully described
in my dissent therein, I cannot agree that Sheward should control the outcome of
this case.
        LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
                               __________________




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