[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Cleveland v. Astrab, Slip Opinion No. 2014-Ohio-2380.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-2380
   THE STATE EX REL. CITY OF CLEVELAND ET AL., APPELLANTS, v. ASTRAB,
                                       APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                it may be cited as State ex rel. Cleveland v. Astrab,
                         Slip Opinion No. 2014-Ohio-2380.]
Political-subdivision immunity—Dismissal of tort claim without prejudice—
        Mandamus to order compliance with mandate of appellate court.
     (No. 2013-0866—Submitted February 4, 2014—Decided June 10, 2014.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 98608.
                               ____________________
        Per Curiam.
        {¶ 1} We affirm in part and reverse in part the judgment of the Cuyahoga
County Court of Appeals regarding an underlying tort case. Relators, the city of
Cleveland and some of its employees, filed an action for a writ of mandamus in
the court of appeals requesting that the court order the trial court in the underlying
tort case to comply with the court of appeals’ earlier mandate regarding the
immunity of the city and its employees in that case.
                             SUPREME COURT OF OHIO




       {¶ 2} The underlying case was brought by plaintiffs whose decedent was
killed when struck by a stolen car being chased by a police vehicle.              The
complaint named the city and employees as defendants. They pleaded the defense
of immunity, and they eventually filed a motion to dismiss based on a claim of
political-subdivision immunity. The trial court denied the motion, and the city
and its employees appealed. The court of appeals reversed, holding that the city
and its employees in their official capacities were immune and that the plaintiffs
had failed to state a claim against the employees in their individual capacities. It
held that the trial court had therefore erred by denying the motion to dismiss.
       {¶ 3} On remand, the trial court issued an order dismissing all claims
raised against the city and its employees, stating, “[T]he dismissals herein are
without prejudice and are otherwise than upon the merits.” The city and its
employees appealed the order, but the Eighth District dismissed, finding that there
was no final, appealable order.
       {¶ 4} The city and its employees filed a complaint for a writ of
mandamus in the Eighth District against the judge of the trial court. Both sides
filed motions for summary judgment, and the court of appeals denied the writ,
finding that it had not mandated a dismissal with prejudice in the original appeal
and that the city and its employees possessed adequate remedies in the ordinary
course of law by way of appeal. The court of appeals also found that the case
sounded in declaratory judgment and prohibitory injunction, rather than in
mandamus.
       {¶ 5} We reverse as to the claims that were originally dismissed on
grounds of immunity of the city and of its employees in their official capacity.
We affirm as to the claims that were originally dismissed on grounds of failing to
state a claim with regard to immunity of the employees in their individual
capacities.




                                         2
                               January Term, 2014




                                      Facts
       {¶ 6} Relators, the city of Cleveland and its employees, are defendants in
underlying tort litigation DiGiorgio v. Cleveland, Cuyahoga C.P., No. CV-09-
700625. The respondent, Judge Michael Astrab, is presiding over DiGiorgio in
the common pleas court.
       {¶ 7} In August 2009, the plaintiffs filed that lawsuit on behalf of
themselves and the estate of Virginia DiGiorgio, who was struck and killed by a
stolen car that was being pursued by the police. The lawsuit named two groups of
defendants: the occupants of the car, and the city and police officers. The answer
of the city and its employees denied liability and pleaded the defense of immunity
under R.C. Chapter 2744.
       {¶ 8} The city and its employees eventually filed a motion to dismiss or
for judgment on the pleadings, seeking a determination that they were immune.
Plaintiffs filed a brief in opposition and requested, in the alternative, leave to
amend the complaint. The respondent, Judge Astrab, denied the motion.
       {¶ 9} The city and its employees filed a notice of appeal, raising two
assignments of error: first, that the trial court erred by not allowing them the
benefits of immunity under R.C. Chapter 2744 and, second, that the trial court
erred in denying them immunity when the complaint failed to allege sufficient
facts to establish one of the exceptions to immunity under R.C. Chapter 2744.
       {¶ 10} The Eighth District assigned the case for en banc review on the
question whether the denial of immunity was a final, appealable order. The court
overruled its own precedent and, following this court’s precedents, held that a
denial of a motion to dismiss on the basis of political-subdivision immunity is a
final, appealable order. DiGiorgio v. Cleveland, 196 Ohio App.3d 575, 2011-
Ohio-5824, 964 N.E.2d 495 (8th Dist.) (en banc), ¶ 15. The case was then
assigned to a three-judge panel to determine the merits.




                                         3
                             SUPREME COURT OF OHIO




        {¶ 11} The panel conducted a de novo review of the trial court’s denial of
the motion of the city and its employees and reversed the trial court’s denial of
immunity, sustaining both assignments of error and entering judgment on all
claims for the city and the employees.         DiGiorgio v. Cleveland, 8th Dist.
Cuyahoga No. 95945, 2011-Ohio-5878 (“DiGiorgio II”). Specifically, the court
of appeals found that the city and its employees in their official capacities were
immune, id. at ¶ 32-33, and that the plaintiffs had failed to state a claim regarding
potential exceptions to immunity for city employees in their individual capacities,
id. at ¶ 42-52.
        {¶ 12} The plaintiffs filed a motion for reconsideration, asking the Eighth
District to modify its decision to instruct the trial court to allow them to amend
their complaint. The Eighth District denied this motion.
        {¶ 13} We declined to accept the plaintiffs’ appeal to this court on March
21, 2012. 131 Ohio St.3d 1484, 2012-Ohio-1143, 963 N.E.2d 824.
        {¶ 14} On remand, respondent, Judge Astrab, dismissed the plaintiffs’
complaint against the city and its employees without prejudice. The city and its
employees again appealed, claiming that the order failed to comply with the
Eighth District’s mandate granting immunity and incorrectly subjected them to
further litigation. The Eighth District sua sponte dismissed the appeal, holding
that the order was not appealable, because other claims remained pending and
there was no certification under Civ.R. 54(B). The appellate court also stated that
the issue of compliance with its mandate could be addressed through an
extraordinary writ. DiGiorgio, 8th Dist. Cuyahoga No. 98374 (June 4, 2012).
        {¶ 15} The city and its employees filed a complaint in mandamus in the
court of appeals, and the parties filed and briefed motions for summary judgment.
The city and its employees argued that the decision in DiGiorgio II, 2011-Ohio-
5878, although it did not explicitly say so, required the trial judge to dismiss the
claims against them with prejudice and that they had no alternate remedy in the



                                         4
                                 January Term, 2014




ordinary course of law. In the decision now on appeal here, the Eighth District
found that its judgment in DiGiorgio II did not mandate dismissal with prejudice
but “simply found that it was error to deny the relators’ motions to dismiss for
judgment on the pleadings.” 8th Dist. Cuyahoga No. 98608, ¶ 6 (Apr. 19, 2013).
       {¶ 16} While agreeing that mandamus is appropriate to enforce the
mandate of a court of appeals, the Eighth District found that the city and its
employees must still establish entitlement to extraordinary relief by clear and
convincing evidence and that they had not done so. Id. at ¶ 7. The Eighth District
found that the city and its employees had an adequate remedy in the ordinary
course of law, in that if the trial court allowed the plaintiffs to amend the
complaint to subject them to tort liability, they could immediately appeal under
R.C. Chapter 2744. Id. at ¶ 8.
       {¶ 17} Finally, the court of appeals found that the real objects sought were
a declaratory judgment and a prohibitory injunction and that the case was
therefore inappropriate for mandamus.
       {¶ 18} The city and its employees appealed to this court as a matter of
right. Meanwhile, according to the brief of the city and its employees, the
plaintiffs refiled the complaint against them, and Judge Astrab stayed the action
pending this appeal to this court.
                                     Legal Analysis
       {¶ 19} To be entitled to a writ of mandamus, the city and its employees
must establish a clear legal right to the requested relief, a clear legal duty on the
part of Judge Astrab to provide it, and the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
2012-Ohio-69, 960 N.E.2d 452, ¶ 6. They must prove that they are entitled to the
writ by clear and convincing evidence. Id. at ¶ 13.
       {¶ 20} In DiGiorgio II, the appellate court made two decisions on the
underlying complaint. First, it decided that the city and its employees in their



                                           5
                              SUPREME COURT OF OHIO




official capacities were immune as to the second, third, fourth, and fifth causes of
action alleged in the complaint. 2011-Ohio-5878, ¶ 32. Second, it decided that
the plaintiffs had failed to state facts sufficient to support their claims regarding
statutory exceptions to immunity against the employees in their individual
capacities in counts one through five, nine, and ten. Id. at ¶ 50-52.
                        Immunity in official-capacity claims
       {¶ 21} The appellate decision on immunity in official capacity in
DiGiorgio II became the law of the case, and Judge Astrab is obligated to give
that decision effect by dismissing those claims against the city and its employees
with prejudice.     The law-of-the-case doctrine promotes consistent decision-
making within a case:


                  Briefly, the doctrine provides that the decision of a
        reviewing court in a case remains the law of that case on the legal
        questions involved for all subsequent proceedings in the case at
        both the trial and reviewing levels.
                  The doctrine is considered to be a rule of practice rather
        than a binding rule of substantive law and will not be applied so
        as to achieve unjust results. However, the rule is necessary to
        ensure consistency of results in a case, to avoid endless litigation
        by settling the issues, and to preserve the structure of superior and
        inferior courts as designed by the Ohio Constitution.
                  In pursuit of these goals, the doctrine functions to compel
        trial courts to follow the mandates of reviewing courts. Thus,
        where at a rehearing following remand a trial court is confronted
        with substantially the same facts and issues as were involved in
        the prior appeal, the court is bound to adhere to the appellate




                                          6
                                  January Term, 2014




          court’s determination of the applicable law. Moreover, the trial
          court is without authority to extend or vary the mandate given.


(Citations omitted.) Nolan v. Nolan, 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410
(1984).
          {¶ 22} As explained above, the appellate court in DiGiorgio II definitively
held that the city and its employees in their official capacities were immune in the
second, third, fourth, and fifth counts in the underlying case. 2011-Ohio-5878,
¶ 17, 32. All possible appeals of that determination were exhausted.
          {¶ 23} In short, the determination in DiGiorgio II that the city and its
employees in their official capacity are immune has become the law of the
underlying case. Therefore, respondent Judge Astrab is compelled to follow it.
He “is bound to adhere to the appellate court’s determination of the applicable
law.” Nolan at 3.
          {¶ 24} The city and its employees thus have a clear legal right to dismissal
of those claims with prejudice, and the trial court has a clear legal duty to dismiss
them with prejudice.
          {¶ 25} As to an adequate remedy in the ordinary course of law, the Eighth
District held and respondent argues that the city and its employees have an
adequate remedy, in that they may file a dispositive motion and then appeal if the
trial court declines to grant it. In this context, that is not an adequate remedy.
          {¶ 26} The city and its employees have already fully litigated the
immunity of the city and of the employees in their official capacities as to the
second, third, fourth, and fifth counts in the original complaint. That immunity is
the law of the case, and they should not have to relitigate it by filing yet another
motion and appeal. The suggested remedy is therefore not “complete, beneficial,
and speedy” and not an adequate remedy in the ordinary course of law. State ex




                                           7
                             SUPREME COURT OF OHIO




rel. Ullmann v. Hayes, 103 Ohio St.3d 405, 2004-Ohio-5469, 816 N.E.2d 245,
¶ 8.
       {¶ 27} This outcome is consistent with the policy reasons behind the
appealability of a determination on immunity. As the court held in Hubbell v.
Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 25, quoting
Burger v. Cleveland Hts., 87 Ohio St.3d 188, 199–200, 718 N.E.2d 912 (1999)
(Lundberg Stratton, J., dissenting):


       “Early resolution of the issue of whether a political subdivision is
       immune from liability pursuant to R.C. Chapter 2744 is beneficial
       to both of the parties. If the appellate court holds that the political
       subdivision is immune, the litigation can come to an early end,
       with the same outcome that otherwise would have been reached
       only after trial, resulting in a savings to all parties of costs and
       attorney fees. Alternatively, if the appellate court holds that
       immunity does not apply, that early finding will encourage the
       political subdivision to settle promptly with the victim rather than
       pursue a lengthy trial and appeals. Under either scenario, both the
       plaintiff and the political subdivision may save the time, effort, and
       expense of a trial and appeal, which could take years.”


(Emphasis sic.) If an early appeal of an immunity decision is pivotal to the
outcome of the case, its finality is equally important. Plaintiffs and defendants
will benefit not only from an early determination of immunity but also from its
finality. In addition, defendants should not have to relitigate any issue finally
decided, let alone one as fundamental as immunity.
       {¶ 28} Therefore, as to the claims involving the immunity of the city and
its employees in their official capacity, we reverse and grant the writ.



                                          8
                                January Term, 2014




             Exception to immunity in individual-capacity claims
       {¶ 29} On the other hand, the remaining claims—based on exceptions to
immunity for employees in their individual capacities—were dismissed in
DiGiorgio II on the basis of failure to state a claim. Specifically, the Eighth
District held that the exceptions to immunity asserted by the plaintiffs were
supported by insufficient allegations of fact: “[A]s with Count 1, appellees’
assertions of reckless and/or willful and wanton conduct in Counts 2 through 5 of
the complaint are merely ‘naked assertions’ unsupported by any factual
allegations. * * * Counts 9 and 10 likewise fail * * *.” 2011-Ohio-5878, ¶ 50-51.
       {¶ 30} As to this group of counts, the court of appeals did not hold, as it
did with the first group, that the complaint itself established the defense of
immunity and established that the plaintiffs could not prevail. Instead, it held
only that the complaint did not sufficiently allege specific facts that would
overcome immunity. It was appropriate, therefore, for the trial court, as it stated
in its journal entry, to dismiss these claims “otherwise than upon the merits.” The
trial court had the discretion to dismiss these without prejudice and to allow the
plaintiffs to refile their complaint regarding these claims and attempt to
sufficiently plead them. For these claims, therefore, we affirm the Eighth District
and deny the writ.
                                    Conclusion
       {¶ 31} We reverse in part, because the Eighth District in DiGiorgio II
found that the city and its employees in their official capacities were immune.
The court of appeals should have issued a writ ordering the trial court to dismiss
these counts with prejudice.
       {¶ 32} We affirm in part, because the Eighth District in DiGiorgio II
found that the plaintiffs failed to plead sufficient facts to support their claims of
statutory exceptions to immunity regarding city employees in their individual




                                         9
                             SUPREME COURT OF OHIO




capacities. The trial court has the discretion to allow the plaintiffs to amend or
refile their complaint to correct these deficiencies.
                                                        Judgment affirmed in part
                                                              and reversed in part,
                                                           and writ granted in part.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
       O’NEILL, J., concurs in judgment only.
                              ____________________
       Barbara A Langhenry, Cleveland Director of Law, and Awatef Assad,
Assistant Director of Law, for appellants.
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Nora
E. Graham, Assistant Prosecuting Attorney, for appellee.
       Spangenberg, Shibley & Liber, L.L.P., Rhonda Baker Debevec, and
William B. Eadie, urging affirmance for amici curiae, Nicholas DiGiorgio et al.
                           ________________________




                                          10
