CICCO ET AL., APPELLANTS, v. STOCKMASTER ET AL.; COLONIAL INSURANCE COMPANY OF CALIFORNIA ET AL., APPELLEES.
No. 99-85
Supreme Court of Ohio
June 7, 2000
89 Ohio St.3d 95 | 2000-Ohio-434
LUNDBERG STRATTON, J.
Submitted November 16, 1999. APPEAL from the Court of Appeals for Huron County, No. H-98-16.
A party who is challenging the constitutionality of a statute must assert the claim in the complaint (or other initial pleading) or an amendment thereto, and must serve the pleading upon the Attorney General in accordance with methods set forth in
(No. 99-85—Submitted November 16, 1999—Decided June 7, 2000.)
APPEAL from the Court of Appeals for Huron County, No. H-98-16.
{¶ 1} On November 22, 1996, appellant Richard Cicco was injured in a motor vehicle accident allegedly caused by Benjamin Stockmaster. At the time of the accident, Cicco had an insurance policy with uninsured/underinsured motorist coverage (“UM/UIM“) of $25,000 per person and $50,000 per accident issued by appellee Colonial Insurance Company of California (“Colonial“). Stockmaster had liability insurance issued by appellee Grange Mutual Casualty Company (“Grange“) with limits of $25,000 per person and $50,000 per accident.
{¶ 2} Cicco and his wife, Barbara, filed an action against Stockmaster, seeking compensatory damages for personal injuries and loss of consortium. The Ciccos subsequently amended their complaint to add a claim against their insurer,
{¶ 3} Stockmaster‘s insurer, Grange, paid the per-person policy limits in settlement of Mr. Cicco‘s claims against Stockmaster. Thereafter, the Ciccos filed a second amended complaint that added a claim against Grange for Barbara‘s loss of consortium, contending that she was entitled to the per-person liability coverage. Contemporaneously, the Ciccos also filed a motion for summary judgment against both Colonial and Grange. The Ciccos sought judgment in their favor and against Grange for Barbara Cicco‘s loss-of-consortium claim, or, in the alternative, if she was not entitled to coverage under the Grange policy, then judgment for UM/UIM coverage from Colonial. The Ciccos also requested a declaration that they had UM/UIM coverage through Colonial over and above the liability insurance limits available to them from Grange. In their motion, the Ciccos raised, for the first time, the issue of the unconstitutionality of
{¶ 4} Grange and Colonial also moved for summary judgment. The trial court denied the Ciccos’ motion and awarded summary judgment to Grange and Colonial. The court ruled that
{¶ 6} The court of appeals held that the trial court had lacked jurisdiction to consider the constitutional issues because the Ciccos had not properly served the Attorney General in accordance with
{¶ 7} This cause is now before this court upon the allowance of a discretionary appeal on Propositions of Law Nos. I and II only.1
Murray & Murray, W. Patrick Murray and William H. Bartle, for appellants.
Flynn, Py & Kruse, L.P.A., and James W. Hart, for appellee Colonial Insurance Company of California.
James L. Schuller, for appellee Grange Mutual Casualty Company.
Betty D. Montgomery, Attorney General, and Sharon A. Jennings, Assistant Attorney General, urging affirmance for amicus curiae, Ohio Attorney General.
LUNDBERG STRATTON, J.
{¶ 8} The issue before us is what constitutes proper service upon the Attorney General for purposes of former
{¶ 9} Former
“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general
shall also be served with a copy of the proceeding and shall be heard. In any proceeding which involves the validity of a township resolution, the township shall be made a party and shall be heard.” 144 Ohio Laws, Part II, 2902, 2930.
{¶ 10} Effective September 24, 1999, the statute was amended to require that the Attorney General be served with a copy of the complaint in the action or proceeding in which a statute, ordinance, or franchise is alleged to be unconstitutional.2 Although the former version of
{¶ 11} The Ciccos did not raise any constitutional issues in their complaint or two amended complaints but, rather, asserted their constitutional challenges in their motion for summary judgment. They sent a copy of their motion for summary judgment to the Attorney General by ordinary mail. The Ciccos contend that because their motion, not their complaint or amended complaints, raised the constitutional issues, service of the motion for summary judgment constituted service of “a copy of the proceedings” in accordance with former
{¶ 12} Grange and Colonial contend that the Ciccos should have asserted their constitutional challenge in their complaint or amended complaints and should have served the Attorney General with a copy of the complaint or amended complaints in the same manner and at the same time as defendants are served. They claim that failure to do so circumvents the mandatory jurisdictional requirements of
{¶ 13}
{¶ 14} Therefore, under the former version of
{¶ 15} Although the statute does not require that the Attorney General be made a party to the action, former
{¶ 16} We believe that by requiring that the Attorney General be served at the inception of the action, or when a constitutional challenge is initially pleaded, the General Assembly intended that the Attorney General have a reasonable amount of time in which to evaluate the issues and determine whether to participate in the case. If the Attorney General elects to participate, then the Attorney General has time to prepare a response to the complaint, make an appearance, and be involved throughout the rest of the case. Notification at the summary judgment stage provides inadequate time for evaluation and response (usually fourteen days instead
{¶ 17} This interpretation comports with the amended version of
{¶ 18} The Ciccos contend that, according to Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 616 N.E.2d 905, they satisfied the intent of
{¶ 19} Although the petitioning party in Taft did not separately serve the Attorney General with a copy of its complaint, we nevertheless held that the trial court did have jurisdiction. We reasoned that the trial court had limited its declaration to the application of the statutes and it did not reach the constitutional question. In addition, because the Attorney General had been intimately involved throughout the case since the complaint stage as counsel for defendants, the intent of
{¶ 20} Here, the Ciccos improperly raised the constitutional issues for the first time in a motion for summary judgment and improperly served the Attorney General. The issues should have been specifically pleaded in their amended or second amended complaints. As a result, the trial court lacked jurisdiction to decide the constitutional question.
{¶ 21} Therefore, the Ciccos failed to invoke the jurisdiction of the trial court to hear their constitutional challenges to
Judgment affirmed.
MOYER, C.J., NADER and F.E. SWEENEY, JJ., concur.
DOUGLAS, PFEIFER and COOK, JJ., dissent.
DOUGLAS, J., dissenting.
{¶ 22} I respectfully dissent. In doing so I agree substantially with Justice Cook‘s well-reasoned dissent. I write further to make four additional points.
{¶ 23} With regard to whether the Attorney General received (was “served” with) a copy of the Ciccos’ motion for summary judgment, wherein the constitutional issue was first raised, the introduction of the amicus brief of the Attorney General states that “the Attorney General did not receive notice of the constitutional challenge until the case was pending in the court of appeals * * *.” However, in the statement of facts of the brief, that denial seems to be made less absolute when the Attorney General says, “There is no evidence in the record or otherwise that this pleading ever reached the office of the Attorney General.” (Emphasis added.)
{¶ 24} In fact, plaintiffs’ motion for summary judgment included a certification that the motion had been served on the Attorney General. From the timing of this notice, the court of appeals concluded that “it would appear that the Attorney General had a reasonable amount of time in which to determine whether the state required representation in this proceeding.” This conclusion was not appealed or challenged by the Attorney General even though the Attorney General was fully aware of the case in the court of appeals, as evidenced by the filing of “Notice of Reservation of Rights and Appearance by Attorney General Betty D. Montgomery” in the Court of Appeals for Huron County. Further, the first paragraph of that filing of the Attorney General states that “[p]ursuant to
{¶ 25} Second, the decision of the majority in the instant matter cannot be reconciled with our decision in Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 616 N.E.2d 905. In Taft, we held at paragraph two of the syllabus that “[f]or purposes of
{¶ 26} Moreover, there is other language in Taft that conflicts with the majority‘s pronouncement that a challenge to the constitutionality of a statute may be raised only in the “complaint (or other initial pleading) or an amendment thereto.” In the trial court, the appellant in Taft had sought, among other relief, a request for declaratory judgment and an alternative request for declaratory judgment. In support thereof, appellant submitted a motion for summary judgment.3 On appeal, we noted with respect to appellant‘s first request for declaratory relief that “[s]ince the constitutionality of the statute was not raised in these claims, no service [of the motion for summary judgment] was required on the Attorney General” to confer jurisdiction on the trial court. Taft, 67 Ohio St.3d at 183, 616 N.E.2d at 908. We further noted that because appellant had, alternatively, sought a declaration in its motion for summary judgment that the statutes in question were unconstitutional, “[s]ervice of a copy of the proceeding [for summary judgment] on the Attorney General would be required before a court would have jurisdiction to make such declarations.” Id.
{¶ 27} In fact, Justice F.E. Sweeney expressed a similar sentiment, albeit in dissent, when he indicated in Taft that challenges to the constitutionality of a statute are not limited solely to the complaint or other initial pleadings but may instead arise at other points in the action. As Justice Sweeney pointed out, ”whenever a statute is alleged to be unconstitutional in a declaratory judgment action, the Attorney General shall be served with a copy of the proceeding. * * * Thus, since the constitutionality of the statutes was contested in appellant‘s complaint, the failure to serve the Attorney General with a copy of the complaint deprives the court of jurisdiction to render an enforceable declaratory judgment.” (Emphasis added.) Id. at 184, 616 N.E.2d at 908 (F.E. Sweeney, J., dissenting). In other words, because, in Taft, the constitutionality of the statutes was originally contested in appellant‘s complaint, Justice Sweeney aptly noted that the failure to serve that
{¶ 28} Third, the majority contends that a recent revision to
{¶ 29} I do not subscribe to the majority‘s interpretation that the current version of the statute requires service of the complaint in all instances. The majority can arrive at such a conclusion only by interpreting the relevant language to mean that the Attorney General must be served with a copy of the complaint in the action or with a copy of the complaint in the proceeding. This interpretation, of course, ignores the obvious redundancy of such a procedural requirement. A more reasonable interpretation of
{¶ 30} Finally, the pronouncement herein by the majority is at odds with the recent practice of this court. This court recently permitted the Attorney General to intervene as a party in an action where the constitutionality of a statute is at issue.
{¶ 31} While no one would question the court of appeals’ decision to raise the issue of constitutionality of a statute, it would appear that under the majority‘s own reasoning in the instant matter, the court of appeals in Mayer lacked jurisdiction to declare
{¶ 32} Accordingly, based on the foregoing, I believe that the trial court had jurisdiction, the court of appeals had jurisdiction, and the issue has been properly preserved for our consideration. Thus, I dissent.
PFEIFER, J., concurs in the foregoing dissenting opinion.
COOK, J., dissenting.
{¶ 33} Because I disagree both with the majority‘s interpretation of the service requirements of
{¶ 34} The majority holds that the Ciccos failed to properly serve the Attorney General by not complying with
{¶ 35} The text of
I
{¶ 36} The majority‘s analysis of the service requirements under
{¶ 37} The statute, however, cannot fairly be read to require constitutional issues to be raised in the initial pleading—its scope extends no further than the requirement that service be made upon the Attorney General in declaratory judgment actions involving constitutionality. Moreover, case law from this and other jurisdictions supports the opposite conclusion. Many courts, both federal and state, allow constitutionality to be raised at other points in the proceeding based upon the principle that cases should be determined upon their merits. Typically, courts reach this outcome using one of two analyses.
{¶ 38} A significant number of jurisdictions hold that a constitutional issue need only be raised at the earliest opportunity, provided that the other side is not prejudiced by the delay. The purpose of the rule is to “prevent surprise to the opposing party, and to permit the trial court an opportunity to fairly identify and rule on the issue.” Land Clearance for Redevelopment Auth. v. Kansas Univ. Endowment Assn. (Mo.1991), 805 S.W.2d 173, 175.
{¶ 39} Thus, the court in Mission Hous. Dev. Co. v. City & Cty. of San Francisco (1997), 59 Cal.App.4th 55, 78, 69 Cal.Rptr.2d 185, 200, concluded that the defendant had timely raised a constitutionality challenge by raising it for the first time in his opening trial brief. Likewise, in Winston v. Reorganized School Dist. R-2, Lawrence Cty., Miller (Mo.1982), 636 S.W.2d 324, 327, the plaintiff challenged the statute‘s constitutionality at the “earliest opportunity” by including it in a reply to the defendant‘s answer and motion for summary judgment. See, also, Kenmike Theatre, Inc. v. Moving Picture Operators, Local 304, Am. Fedn. of Labor (1952), 139 Conn. 95, 90 A.2d 881; State v. One 1985 Mercedes 190D Auto. (1995), 247 Neb. 335, 344, 526 N.W.2d 657, 664; Mercer v. Philips Natural Gas Co. (Tex.App.1988), 746 S.W.2d 933, 936; Billings Deaconess Hosp., Inc. v. Angel (1986), 219 Mont. 490, 495, 712 P.2d 1323, 1327; see, also, Mark v. Mellott Mfg. Co., Inc. (Sept. 13, 1989), Ross App. No. 1494, unreported, 1989 WL 106933 (holding that the statute‘s constitutionality would have been sufficiently raised in the trial court had it been included in defendant‘s motion for summary judgment).
{¶ 40} Other courts hold that where a claim (constitutional or otherwise) is raised other than at the inception of the proceeding, amendment of the pleadings is
{¶ 41} The majority‘s conclusion that constitutional issues may be raised only at the inception of an action departs from this established law and does so without any statutory support. Its interpretation, therefore, modifies well-settled procedural practice and imposes limitations not considered or intended by the statutory language of
II
{¶ 42} Given that I disagree with the majority‘s basic proposition, I also disagree with the next step in its analysis. The majority concludes that since the issues of constitutionality must be raised in the complaint or initial pleading, the Attorney General must in all instances be served with a copy of that document.
{¶ 43} Because constitutionality ought to be permitted to be raised at other points in the proceeding, however, I believe it a more appropriate reading of former
{¶ 44} The Louisiana Supreme Court, for instance, which has consistently held that constitutionality may be raised either in the complaint, the answer, the motion for summary judgment, or a response thereto, concludes that it is the “pleading which contests the constitutionality of a statute” that must be served. Vallo v. Gayle Oil Co., Inc. (La.1994), 646 So.2d 859, 864. Similarly, in Tyson Foods, Inc. v. Thompson (Ala.Civ.App.1998), 719 So.2d 847, although service upon the Attorney General was held insufficient, the court so concluded because the Attorney General was not served with the objection to the motion to dismiss the appeal, the document that raised the constitutionality of the statute at issue. See, also, Mobile v. Salter (1971), 287 Ala. 660, 664, 255 So.2d 5, 7.
III
{¶ 46} The first two issues having been so resolved, the next issue is the manner in which the copy of the proceeding must be served upon the Attorney General. Again working from its prior conclusions, the majority reasons that since it is the complaint or initial pleading that must be served, service should be completed in the manner typically used for complaints.
{¶ 47} Since I would conclude that documents other than the complaint or initial pleading might be served upon the Attorney General, I believe that the majority‘s requirement of certified mail is not in all instances appropriate. Because the statute is silent on the type of service that will suffice, it follows that the typical procedures contained in the Civil Rules should apply. Thus, where the document to be served is the complaint, the Civil Rules require service by certified mail; documents succeeding the complaint may be served by ordinary mail. See
IV
{¶ 48} To summarize, then, I disagree with the majority‘s decision to impose strict procedural mandates upon the service requirement of
“To do this, we would have to write into
R.C. 2721.12 a clause that does not appear * * * .R.C. 2721.12 provides the substantive requirement that all interested persons be made parties; it does not purport to govern the procedural method by which this is accomplished, and it certainly does not limit parties to their initial pleadings.”
{¶ 49} This reasoning is fully applicable to the interpretation of
V
{¶ 51} Applying the above to the instant case, the service attempted on the Attorney General was sufficient to invoke the trial court‘s jurisdiction over the issues of constitutionality. The Ciccos first raised their constitutional challenge in their motion for summary judgment, which was conceivably the earliest opportunity for these issues to be addressed. Their complaint essentially sought compensation under both their own and the defendant‘s insurance policies. The Ciccos’ insurance carrier responded by denying that any coverage was owed on either of the claims for uninsured motorist coverage. At that point, in the motion for summary judgment, the Ciccos requested a determination of the constitutionality of the statutes that allow its carrier to deny such coverage. The Ciccos raised these issues at precisely the time they arose.
{¶ 52} Likewise, under
{¶ 53} The issue having been appropriately raised in the motion for summary judgment, it follows that the Ciccos’ service duty under
{¶ 54} Furthermore, the Attorney General‘s statement that the motion was never received does not alter this analysis, given the documentation of service provided by the Ciccos and the provision of
{¶ 55} For the foregoing reasons, I would hold that the Ciccos sufficiently served the Attorney General with a copy of the proceeding raising the constitutionality of the statutes at issue and therefore the trial court had jurisdiction to address those issues.
DOUGLAS and PFEIFER, JJ., concur in the foregoing dissenting opinion.
Notes
“(A) Subject to division (B) of this section, when declaratory relief is sought under this chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding. Except as provided in division (B) of this section, a declaration shall not prejudice the rights of persons who are not made parties to the action or proceeding. In any action or proceeding that involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and, if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general also shall be served with a copy of the complaint in the action or proceeding and shall be heard. In any action or proceeding that involves the validity of a township resolution, the township shall be made a party and shall be heard.” 1999 S.B. No. 58.