[Cite as State ex rel. Mullins v. Curran, 131 Ohio St.3d 441, 2012-Ohio-685.]




 THE STATE EX REL. MULLINS, ADMR., APPELLEE, v. CURRAN, JUDGE, ET AL.;
                           MCDANIEL ET AL., APPELLANTS.
 [Cite as State ex rel. Mullins v. Curran, 131 Ohio St.3d 441, 2012-Ohio-685.]
Court of appeals erred in granting writ of prohibition to prevent judge from
        retrying negligence issue on remand—Trial court did not patently and
        unambiguously disregard the court of appeals’ mandate.
 (No. 2011-0580—Submitted December 7, 2011—Decided February 23, 2012.)
              APPEAL from the Court of Appeals for Mahoning County,
                            No. 10 MA 76, 2011-Ohio-1312.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment of the court of appeals granting a
writ of prohibition to prevent Judge Thomas P. Curran, a visiting judge sitting in
the Mahoning County Court of Common Pleas, from conducting a jury trial in a
wrongful-death action to determine, for the second time, whether appellants,
Gregory McDaniel, M.D., and Comprehensive Pediatric & Adult Medicine, Inc.
(“Comprehensive”), were negligent, resulting in the death of their patient, Charles
Mullins. Because the court of appeals erred in determining that a retrial of the
negligence claim against Dr. McDaniel and Comprehensive patently and
unambiguously violated the court’s mandate in a prior appeal, we reverse the
judgment of the court of appeals and deny the writ.
                                            Facts
                           Underlying Complaint and Verdict
        {¶ 2} In May 2004, appellee, Lisa Mullins, the widow and administrator of
the estate of Charles Mullins, filed a complaint in the Mahoning County Court of
Common Pleas in her fiduciary capacity, alleging that McDaniel and
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Comprehensive had been negligent in their medical treatment of Charles Mullins,
resulting in his death. In May 2007, following a trial, the jury returned a verdict
of $420,000 in favor of the estate and against McDaniel and Comprehensive. The
jury determined that McDaniel had been negligent in his treatment of Charles
Mullins and that the doctor’s negligence was a proximate cause of Charles’s
death.
                               Appeal of Jury Verdict
         {¶ 3} McDaniel and Comprehensive appealed the judgment entered upon
the jury verdict. See Mullins v. Comprehensive Pediatric & Adult Medicine, Inc.,
7th Dist. No. 07 MA 144, 2009-Ohio-1310, 2009 WL 737915. In their first
assignment of error, McDaniel and Comprehensive asserted that the trial court
had abused its discretion by refusing to submit to the jury their proposed
instruction on the alleged contributory negligence of Lisa and Charles Mullins.
Id. at ¶ 62-63. The court of appeals sustained this assignment of error in part,
holding that the trial court had abused its discretion by refusing to instruct the jury
on Lisa Mullins’s alleged contributory negligence. Id. at ¶ 86. The court of
appeals also sustained appellants’ second assignment of error—that the trial court
had abused its discretion by denying their motion for new trial. Id. at ¶ 87-91. In
the concluding paragraph of the court of appeals’ opinion, the court stated,
“Because we have sustained Appellants’ first assignment of error in part and their
second assignment of error in full, we hereby remand this matter to the trial court
for further proceedings according to law and consistent with this Opinion.”
(Emphasis added.) Id. at ¶ 102.
         {¶ 4} The appellate court’s mandate issued March 20, 2009, included the
language “this cause is remanded to the trial court for further proceedings.”
                     Remand to Trial Court and Filing of Writ
         {¶ 5} On remand, Lisa Mullins filed a motion asking the trial court to
apply the decision of the court of appeals as the law of the case by holding, inter




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alia, that McDaniel was negligent, that his negligence was a proximate cause of
the death of Charles Mullins, and that the jury verdict of $420,000 was still in
effect. Judge Curran specified in a March 24, 2010 entry that the issue of the
medical negligence of McDaniel and Comprehensive would be retried before the
jury at the same time that the issue of the alleged contributory negligence of Lisa
Mullins would be tried. He stated that he believed that the retrial he ordered
“follow[ed] the decision of the Ohio Court of Appeals in every respect.”
       {¶ 6} On May 6, 2010, Lisa Mullins, in her capacity as administrator of
her deceased husband’s estate, filed a complaint in the court of appeals for (1) a
writ of prohibition to prevent Judge Curran and the Mahoning County Court of
Common Pleas from proceeding contrary to the court of appeals’ mandate in
Mullins, 7th Dist. No. 07 MA 144, 2009-Ohio-1310, 2009 WL 737915, by
retrying the issue of the medical negligence of McDaniel and Comprehensive at a
second jury trial and to allow the jury to again determine the damages and (2) a
writ of mandamus to, among other things, compel the trial court to limit the new
trial to the issue of the alleged contributory negligence of Lisa Mullins. Judge
Curran and the common pleas court filed a motion to dismiss, and McDaniel and
Comprehensive intervened and filed a motion to dismiss.
       {¶ 7} On March 14, 2011, the court of appeals granted a writ of
prohibition to prevent Judge Curran from retrying the negligence issue in the case
against McDaniel and Comprehensive.
       {¶ 8} This cause is now before the court upon McDaniel and
Comprehensive’s appeal as of right from the judgment granting the writ of
prohibition.
                                 Legal Analysis
       {¶ 9} Extraordinary relief in prohibition will not lie if the party requesting
it has an adequate remedy in the ordinary course of law. See State ex rel. Skyway




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Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220,
2011-Ohio-5452, 957 N.E.2d 24, ¶ 10.
       {¶ 10} Judge Curran reasonably concluded from the court of appeals’
mandate in Mullins, 2009-Ohio-1310, 2009 WL 737915, that a retrial of the
wrongful-death case, including the negligence claim against McDaniel and
Comprehensive, was warranted.         The court of appeals’ mandate does not
expressly restrict or otherwise limit the new trial to the contributory-negligence
issue. And in both the court of appeals’ mandate and the concluding paragraph of
its opinion in Mullins, 2009-Ohio-1310, 2009 WL 737915, the court of appeals
sustained appellants’ second assignment of error—that the court of appeals had
abused its discretion by denying their motion for new trial—“in full,” which
implies an unrestricted new trial on the issue of negligence.
       {¶ 11} Because the issue concerning whether the court of appeals’
mandate was being disobeyed has been raised in the context of an action for
extraordinary relief in prohibition, our duty “ ‘is limited to determining whether
jurisdiction is patently and unambiguously lacking.’ ”             (Emphasis added.)
Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856,
¶ 45, quoting State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804,
831 N.E.2d 1003, ¶ 28.
       {¶ 12} Because the mandate did not specifically limit the retrial so as to
preclude the jury’s consideration of the negligence claim against McDaniel and
Comprehensive and because the court of appeals’ opinion in Mullins, 2009-Ohio-
1310, 2009 WL 737915, was unclear on the scope of the retrial, Judge Curran did
not patently and unambiguously disregard the court of appeals’ mandate. Lisa
Mullins, in her capacity as administrator of her late husband’s estate, has an
adequate remedy in the ordinary course of law by appeal after retrial to raise her
contention that the court of appeals intended—as is clear now from that court’s
opinion in this prohibition case—that the retrial be so limited.




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                               January Term, 2012




        {¶ 13} Because the court of appeals did not include clearer language in its
mandate and opinion, McDaniel and Comprehensive reasonably concluded that
the court’s opinion in the appeal was in their favor on the point of a new trial in
which their alleged negligence would be reassessed with the alleged contributory
negligence of Lisa Mullins. See State ex rel. Richardson v. Suster, 130 Ohio
St.3d 82, 2011-Ohio-4728, 955 N.E.2d 982, fn. 1, quoting Ohio Contract Carriers
Assn., Inc. v. Pub. Util. Comm., 140 Ohio St. 160, 42 N.E.2d 758 (1942), syllabus
(“ ‘Appeal lies only on behalf of a party aggrieved by the final order appealed
from’ ”). If we were to affirm the judgment of the court of appeals granting the
writ of prohibition, McDonald and Comprehensive would be barred by res
judicata from challenging the substantive merits of the court of appeals’ decision
to order a limited retrial.
        {¶ 14} We will not interpret the law-of-the-case doctrine in this
extraordinary-writ context to reach this untenable result. See Hubbard ex rel.
Creed v. Sauline, 74 Ohio St.3d 402, 404, 659 N.E.2d 781 (1996), quoting State
ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979) (“ ‘The
[law-of-the-case] 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’ ”); see also State ex rel. Estate of Miles v. Piketon, 121 Ohio St.3d 231,
2009-Ohio-786, 903 N.E.2d 311, ¶ 30, citing Davis v. Wal-Mart Stores, Inc., 93
Ohio St.3d 488, 491, 756 N.E.2d 657 (2001) (“The binding effect of res judicata
has been held not to apply when fairness and justice would not support it”).
                                   Conclusion
        {¶ 15} Based on the foregoing, the court of appeals erred in granting the
writ of prohibition to prevent Judge Curran from retrying the negligence case
against McDaniel and Comprehensive when he was not acting in patent and
unambiguous disregard of the court of appeals’ mandate in the prior appeal.
Therefore, we reverse the judgment of the court of appeals and deny the writ.




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                                                                Judgment reversed
                                                                  and writ denied.
       O’CONNOR, C.J., and LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
       LUNDBERG STRATTON and O’DONNELL, JJ., concur separately.
       PFEIFER, J., dissents.
                                 __________________
       LUNDBERG STRATTON, J., concurring.
       {¶ 16} I agree with the majority that Judge Curran did not patently and
unambiguously lack jurisdiction to retry the entire negligence case. Our review in
this matter was limited to that isolated issue. However, I write separately to
explain why Judge Curran could have reasonably concluded that a retrial of the
negligence claim against McDaniel and Comprehensive was warranted.
       {¶ 17} It was reasonable for Judge Curran to conclude that it was
necessary to hold a new trial on the entire case because it would be impossible to
conduct a trial on only the contributory-negligence claim.            Contributory
negligence is a defense to a claim for negligence. Seeley v. Rahe, 16 Ohio St.3d
25, 27, 475 N.E.2d 1271 (1985). In order to reach a verdict that is consistent with
all the evidence, the jury must consider and compare the negligence of the
different parties, including any evidence of contributory negligence. A jury is
unable to assess comparative fault of all parties without reviewing all the factors
that comprise a negligence claim or contributory-negligence claim. The court’s
failure to instruct the jury on contributory negligence was prejudicial to the
defendants because the jury was unable to consider whether Mrs. Mullins’s
alleged negligence contributed to the decedent’s death.
       {¶ 18} Judge Curran may also have relied on existing case law that
supports the view that a new trial on both negligence and contributory negligence
is necessary. In Marshall v. Gibson, 19 Ohio St.3d 10, 482 N.E.2d 583 (1985),
this court concluded that the trial judge had committed prejudicial error in




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refusing to instruct the jury on comparative negligence.        Evidence had been
presented during trial to support a charge. Thus, this court reversed the judgment
and remanded for a new trial because the original verdict had been based on
incomplete and misleading jury instructions.         We held that when there is
sufficient evidence to support a comparative-negligence charge and the charge is
not given, the jury is misled and a retrial of both the negligence claim and the
contributory-negligence claim is necessary. See also Feeney v. Eshack, 129 Ohio
App.3d 489, 494, 718 N.E.2d 462 (9th Dist.1998) (trial court failed to instruct the
jury on comparative negligence, making the jury charge as a whole misleading.
As a result, the verdict was not responsive to the issues, because jury instructions
were incomplete and misleading, and resulting prejudice warranted a new trial);
State Farm Fire & Cas. Co. v. Scandinavian Health Spa, Inc., 104 Ohio App.3d
582, 662 N.E.2d 890 (1st Dist.1995).
       O’DONNELL, J., concurs in the foregoing concurring opinion.
                              __________________
       PFEIFER, J., dissenting.
       {¶ 19} The court of appeals specified in its decision in the previous appeal
that the court was remanding the cause to the trial court “for a new trial on this
issue,” i.e., the trial court’s error in refusing to instruct the jury on the alleged
contributory negligence of Lisa Mullins. Mullins v. Comprehensive Pediatric &
Adult Medicine, Inc., 7th Dist. No. 07 MA 144, 2009-Ohio-1310, 2009 WL
737915, ¶ 101. Based on the plain language of its previous decision, the court of
appeals granted Lisa Mullins a writ of prohibition to prevent Judge Curran from
retrying the negligence case against McDaniel and Comprehensive. Today, this
court overlooks prior case law in reversing that decision. I dissent.
                               Extraordinary Relief
       {¶ 20} “Extraordinary relief is appropriate to require a lower court to
comply with and not proceed contrary to the mandate of a superior court.” State




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ex rel. Jelinek v. Schneider, 127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d
847, ¶ 12. This principle is based on the law-of-the-case doctrine, which “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.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-
Ohio-6769, 820 N.E.2d 329, ¶ 15. “The portion of the [law-of-the-case] doctrine
generally applied in extraordinary-writ cases provides that ‘[a]bsent 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.’ ” State ex rel. Dannaher v. Crawford, 78 Ohio St.3d
391, 394, 678 N.E.2d 549 (1997), quoting Nolan v. Nolan, 11 Ohio St.3d 1, 462
N.E.2d 410 (1984), syllabus.
       {¶ 21} In the previous appeal, the court of appeals remanded for a limited
new trial to correct the trial court’s error in refusing to instruct the jury on the
alleged contributory negligence of Lisa Mullins. Mullins, 2009-Ohio-1310, 2009
WL 737915, ¶ 101-102. The court of appeals was authorized to limit the retrial to
correct that error. State ex rel. Smith v. O’Connor, 71 Ohio St.3d 660, 662-663,
646 N.E.2d 1115 (1995), quoting Whiteside, Ohio Appellate Practice, Section T
7.05(C), 91 (1994); State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v.
Ohio Bur. of Emp. Servs., 88 Ohio St.3d 577, 579, 728 N.E.2d 395 (2000).
       {¶ 22} Appellants claim and this court concludes that the court of appeals’
decision in Mullins, 2009-Ohio-1310, 2009 WL 737915, did not limit the retrial to
the contributory-negligence issue. According to the plain language of the court’s
decision, retrial was clearly limited. Id. at ¶ 101-102. In its decision granting the
writ of prohibition, the court of appeals reaffirmed the limited scope of the
remand in the court’s mandate in the prior appeal: “ ‘It is the final judgment and
order of this Court that the judgment of the Court of Common Pleas of Mahoning
County, Ohio is affirmed in part and reversed in part. This cause is remanded to




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the trial court for further proceedings according to law and consistent with this
Court’s Opinion.’ ” State ex rel. Mullins v. Curran, 7th Dist. No. 10 MA 76,
2011-Ohio-1312, 2011 WL 977047, ¶ 11, quoting the mandate issued as a result
of Mullins, 2009-Ohio-1310, 2009 WL 737915. It is obvious that the court of
appeals did not remand for a full retrial; rather, it is quite plain that the retrial was
to be limited according to the language in the opinion.
        {¶ 23} In its decision granting the writ of prohibition, the court of appeals
explained the obviousness of the limited retrial based on language from its
original decision:


        Our Opinion clearly states that the trial court’s failure to instruct
        the jury on the alleged comparative negligence of Lisa Mullins
        constituted error, and, accordingly, the matter was remanded for
        the purpose of a new trial on that issue. It is also apparent in the
        Opinion that we affirmed the trial court’s refusal to instruct the
        jury on Charles Mullins’ alleged comparative negligence, as well
        as the trial court’s decision to disqualify the expert whose
        testimony was offered by Comprehensive and Dr. McDaniel.
                If it was our intention to order a new trial on all of the
        issues presented in the case, the foregoing assignments of error
        would have been rendered moot. The only issue that we concluded
        was moot on appeal was the assignment of error relating to the trial
        court’s decision on prejudgment interest. Prejudgment interest is a
        post-judgment matter, and, in the unlikely event that the trial court
        chose to revisit the issue following the new trial on the alleged
        comparative negligence of Lisa Mullins, we determined that it
        would be imprudent for us to consider the issue prior to the entry
        of the final judgment in this case. Accordingly, it is clear from our




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       Opinion that the judgment against Comprehensive and Dr.
       McDaniel was affirmed, and that the only issue remaining for trial
       is the alleged comparative negligence of Lisa Mullins.
               Comprehensive and Dr. McDaniel are in no way prejudiced
       by the limited remand. At the time of Charles Mullins’ death,
       Ohio followed the law of joint and several liability. * * * Even if
       the jury had been instructed on the comparative negligence of Ms.
       Mullins, the total damages amount awarded by the jury for Charles
       Mullins’ death would not have been affected.
               The only issue that the trial court was instructed to consider
       on remand was the comparative negligence of Lisa Mullins. Thus,
       a new trial that also encompasses the negligence of Comprehensive
       and Dr. McDaniel would be contrary to our mandate.


(Record reference omitted.) State ex rel. Mullins, 2011-Ohio-1312, 2011 WL
977047, ¶ 11-14.
                              Interpreting a Mandate
       {¶ 24} We have consistently recognized in the context of writ cases that
the court that issued the mandate that is claimed to have been disregarded is in the
best position to interpret the mandate. State ex rel. New Concept Hous., Inc. v.
Metz, 123 Ohio St.3d 457, 2009-Ohio-5862, 917 N.E.2d 796, ¶ 4; State ex rel.
Obojski v. Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d 1070, ¶ 18;
State ex rel. Bunting v. Haas, 105 Ohio St.3d 381, 2005-Ohio-2161, 826 N.E.2d
840, ¶ 9; State ex rel. Borden v. Hendon, 96 Ohio St.3d 64, 2002-Ohio-3525, 771
N.E.2d 247, ¶ 9. Here, the same three judges of the court of appeals that presided
over the previous appeal presided over the subsequent writ case and concluded
that the trial court judge had disregarded the plain language of their mandate in
Mullins, 2009-Ohio-1310, 2009 WL 737915, by ordering a retrial of the




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negligence claims against McDaniel and Comprehensive that had been previously
resolved. State ex rel. Mullins, 2011-Ohio-1312, 2011 WL 977047. By second-
guessing the court of appeals judges’ determination that Judge Curran disregarded
their mandate and opinion in Mullins, 2009-Ohio-1310, 2009 WL 737915, the
majority ignores our longstanding precedent.
       {¶ 25} Although I am persuaded that our well-established precedent
dictates an affirmance of the court of appeals’ judgment in this appeal, this
conclusion is not made without reservations. First, I question whether it was even
appropriate for the court of appeals in Mullins, 2009-Ohio-1310, 2009 WL
737915, ¶ 74-86, to consider the contributory-negligence claim against Lisa
Mullins, when she was never joined as a party defendant by appellants. Also, I
share the concern of appellants—and the implicit concern of my colleagues—that
under the limited remand ordered by the court of appeals in Mullins, 2009-Ohio-
1310, 2009 WL 737915, it would be difficult for a jury to consider the alleged
contributory negligence of Lisa Mullins without simultaneously considering the
negligence of appellants. But because these substantive issues from the prior
appeal in Mullins, 2009-Ohio-1310, 2009 WL 737915, are not before us in this
appeal from the extraordinary-writ action, I would adhere to our established case
law and affirm the judgment of the court of appeals granting the writ of
prohibition.
                              __________________
       Patrick C. Fire, for appellee.
       Roetzel & Andress, L.P.A., Douglas G. Leak, and Thomas A. Treadon, for
appellants.
       Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for
amicus curiae, Ohio Association for Justice.
                            ______________________




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