Bachus v. Loral Corp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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1992, pursuant to a pilot project implemented by Chief Justice
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Bachus et al., Appellants, v. Loral Corporation, Appellee.
[Cite as Bachus v. Loral Corp. (1993), Ohio St.3d .]
Appeal dismissed when issue presented is moot -- Enactment of
Civ.R. 34(D) moots issue, when.
(No. 91-2365 -- Submitted April 6, 1993 -- Decided
September 15, 1993.)
Appeal from the Court of Appeals for Summit County, No.
15041.

Michael F. Colley Co., L.P.A., Michael F. Colley, David I.
Shroyer and David K. Frank, for appellants.
Buckingham, Doolittle & Burroughs and Charles E. Pierson,
for appellee.
Ronald D. Major, urging reversal for amicus curiae, Ohio
Academy of Trial Lawyers.

On April 6, 1993, this matter was submitted to the court
upon briefs and oral argument. On July 1, 1993, Civ.R. 34(D)
became effective.
The court determines that the issue presented in this case
has been disposed of with the adoption of Civ.R. 34(D) and that
the issue is therefore moot.
Therefore, case No. 91-2365 is hereby dismissed.
Moyer, C.J., A.W. Sweeney, Wright and Resnick, JJ., concur.
Douglas, F.E. Sweeney and Pfeifer, JJ., dissent.
Douglas, J., dissenting. I respectfully dissent. I
agree that Civ.R. 34(D) attempts to (and does) answer some of
the questions in the case now before us. That does not,
however, negate our responsibility to correct case law that we
know is wrong, especially when we have accepted for review a
case which directly presents to us the previously erroneously
decided issue.
In 1989, we decided Poulos v. Parker Sweeper Co. (1989),
44 Ohio St.3d 124, 541 N.E.2d 1031. While the ultimate
judgment in that case was, in part, correct, the major premise
for which the case stands is just plain wrong. This fact was
recognized and, in answer to the problem, Civ.R. 34(D) was
proposed and adopted. The rule, incidentally, was adopted by

the court without having gone through the usual steps of
debate, consideration and vote of the Rules Advisory Committee
and/or public comment.
Be all that as it may, we should not dismiss the case at
bar as moot. We should decide the issue presented and
specifically overrule Poulos. I have no difficulty in candidly
admitting when we are wrong. We should not be afraid to do
so. We should heed the admonition of Justice Stern in
Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1976), 46 Ohio
St.2d 105, 119, 75 O.O.2d 172, 180, 346 N.E.2d 778, 787, fn. 8,
where he said, "This court is more accustomed to detecting and
correcting the errors of others than its own. It is to be
hoped that we will always remain willing to correct them
whether found in either place."
Today, I believe, we fail that test. Accordingly, I would
decide the case before us on its merits. Because the majority
does not do so, I respectfully dissent.
F.E. Sweeney and Pfeifer, JJ., concur in the foregoing
dissenting opinion.