Stevens v. AckmanStevens v. Ackman
- A trial court order entered in a civil action for damages seeking recovery for a wrongful death is not an order entered in a special proceeding for purposes of
R.C. 2505.02 . R.C. 2744.02(C) , as purportedly enacted in 1996 Am.Sub.H.B. No. 350, is invalid.R.C. 2744.02(C) was neither enacted nor reenacted by 1997 Am.Sub.H.B. No. 215. (State ex rel. Ohio Academy of Trial Lawyers v. Sheward [1999], 86 Ohio St.3d 451, 715 N.E.2d 1062, paragraph three of the syllabus, and Hubbard v. Canton City School Bd. of Edn. [2000], 88 Ohio St.3d 14, 722 N.E.2d 1025, followed.)
I
Facts and Procedural History
{¶ 1} On December 16, 1994, seventeen-year-old Corey C. Banks died in an automobile accident on Roosevelt Avenue (also called Roosevelt Road) in Middletown, Ohio. Banks was a passenger in an automobile operated by Emily J. Duff, now known as Emily J. Ackman, a classmate of his at Middletown High School. Duff‘s vehicle went left of center in a heavy rain and collided with an oncoming vehicle. When police arrived at the scene, Banks was dead.
{¶ 2} On December 13, 1996, plaintiff-appellant Shira Sue Stevens (the mother of Banks and the administrator of his estate) filed a complaint against Ackman and appellee, the city of Middletown, in the Butler County Court of Common Pleas, alleging that they were responsible for the wrongful death of Banks. Stevens asserted that Middletown was liable for Banks‘s death for its failure to properly maintain Roosevelt Road, including allowing an unsafe pavement edge drop to exist on the side of the road, which caused Ackman to lose control of her vehicle when she attempted to return it to the roadway after it had dropped off the pavement edge. Stevens alleged that Middletown breached its duty to maintain Roosevelt Road open, in repair, and free from nuisance, and that the roadway was unsafe.
{¶ 3} Middletown moved for summary judgment pursuant to
{¶ 5} The trial court also found that there were issues of fact as to whether Middletown had notice of the condition, and further that there was no merit to Middletown‘s contention that the defense for discretionary decisions contained in
{¶ 6} Middletown appealed the denial of its summary judgment motion to the Court of Appeals for Butler County, initially relying on
{¶ 7} After the parties had briefed the appeal on the merits, Stevens filed a motion to dismiss the appeal on August 10, 1999, primarily arguing that
{¶ 8} Before the court of appeals ruled on that motion to dismiss, this court, on August 16, 1999, announced the decision in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062. On August 25, 1999, Stevens filed a second motion in the court of appeals to dismiss the appeal, again urging that the court of appeals was without jurisdiction to entertain Middletown‘s appeal. Stevens argued that because
{¶ 9} Middletown responded to Stevens‘s second motion to dismiss by arguing that, as an alternate ground for its appeal, the court of appeals had jurisdiction over the order pursuant to
{¶ 10} In its opinion, the court of appeals denied both of Stevens‘s motions to dismiss. The court of appeals found that it had jurisdiction over the appeal pursuant to
{¶ 12} After thus finding Middletown‘s appeal properly before it, the court of appeals reversed the judgment of the trial court on the merits and entered summary judgment in favor of Middletown, finding that the municipality was entitled to political subdivision immunity. The court of appeals held as a matter of law that the edge drop at issue did not constitute a nuisance within the meaning of
{¶ 13} Finding its judgment on the merits issue to be in conflict with the judgment of the Fifth District Court of Appeals in Thompson v. Muskingum Cty. Bd. of Commrs. (Nov. 12, 1998), Muskingum App. No. CT98-0010, unreported, 1998 WL 817826, the court of appeals granted Stevens‘s motion to certify a conflict. The issue certified is “whether an edge drop on the berm of a county or city road, in and of itself, constitutes a nuisance within the meaning of
{¶ 14} Stevens also moved the court of appeals to certify a conflict on the issue of whether, in the wake of the Sheward decision, a court of appeals has
{¶ 15} The cause is now before this court upon our determination that a conflict exists on the edge-drop issue (case No. 00-513), and pursuant to the allowance of a discretionary appeal (case No. 00-225).
II
Appellate Court Jurisdiction
A
Standards for Appealability
{¶ 16}
“Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district and shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.”
{¶ 17} The initial issue for resolution, as a prerequisite to any consideration of the merits of this case, is whether the trial court order denying Middletown‘s motion for summary judgment premised on immunity under
{¶ 18} The denial of a motion for summary judgment generally is considered an interlocutory order not subject to immediate appeal. See Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292, 1293-1294. See, also, State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 37 O.O.2d 358, 222 N.E.2d 312. In this case, Middletown argues that at least one exception to this general rule applies, so that the trial court order at issue was subject to an immediate appeal.
B
Appealability Pursuant to R.C. 2505.02(B)
{¶ 19} The court of appeals in this case specifically determined that
{¶ 20}
” * * *
“(2) An order that affects a substantial right made in a special proceeding * * *.”
{¶ 21}
{¶ 22}
{¶ 23} In Polikoff v. Adam (1993), 67 Ohio St.3d 100, 108, 616 N.E.2d 213, 218, fn. 8, this court noted that in considering whether a particular order affected a substantial right in a special proceeding, the reviewing court‘s analysis first focuses on the special proceeding portion of the inquiry. Only if it is first determined that an order was entered in a special proceeding is it necessary to go on to consider whether the order affected a substantial right.
{¶ 24} This court held in Polikoff, at the syllabus, that “[o]rders that are entered in actions that were recognized at common law or in equity and were not
{¶ 25} In Polikoff, 67 Ohio St.3d at 104, 616 N.E.2d at 216, this court quoted from Missionary Soc. of M.E. Church v. Ely (1897), 56 Ohio St. 405, 407, 47 N.E. 537, 538: “[A]ny ordinary proceedings in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding.”
{¶ 26} Furthermore, Polikoff, 67 Ohio St.3d at 105, 616 N.E.2d at 216, quoted In re Estate of Wyckoff (1957), 166 Ohio St. 354, 358, 2 O.O.2d 257, 260, 142 N.E.2d 660, 663-664, which in turn had quoted Schuster v. Schuster (1901), 84 Minn. 403, 407, 87 N.W. 1014-1015, for the proposition that ” ’ “[w]here the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term ‘special proceedings.’ ” ’ ”
{¶ 27} The Polikoff court, 67 Ohio St.3d at 105, 616 N.E.2d at 216, went on to again quote Wyckoff, 166 Ohio St. at 358, 2 O.O.2d at 260, 142 N.E.2d at 664, with approval: ” ‘[T]he proceeding provided by [the statute at issue], in connection with which a petition and no other pleadings are required and wherein there is notice only, without service of summons, and which represents essentially an independent judicial inquiry, is a special proceeding.’ ”
{¶ 28} In Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, 121, 676 N.E.2d 890, 893, this court clarified the syllabus paragraph of Polikoff: “The determining factor of Polikoff is whether the ‘action’ was recognized at common law or in equity and not whether the ‘order’ was so
{¶ 29} For our purposes here, the key term in this statement is that the underlying action must be the focus of the inquiry.
{¶ 30} The court of appeals below, in ruling that a case seeking recovery for a wrongful death is a special proceeding, did not adequately address what the true “underlying action” was in the case before it, and so reached its conclusion through an analysis that strayed from the correct focus of the inquiry. This case, although it includes claims for wrongful death and survival claims, is an ordinary civil action seeking damages for purposes of
{¶ 31}
{¶ 32}
{¶ 33} When a court considers whether a particular statute specially creates an action or proceeding that may qualify as a special proceeding for purposes of
{¶ 34} If an action has the characteristics of an ordinary action it does not qualify as a special proceeding. See Polikoff, 67 Ohio St.3d at 107, 616 N.E.2d at 218: “[Plaintiffs] sought redress of an alleged wrong by filing a lawsuit in the court of common pleas. * * * The underlying action can be distinguished from a special proceeding in that it provides for an adversarial hearing on the issues of fact and law which arise from the pleadings and which will result in a judgment for the prevailing party.” See, also, Walters, 78 Ohio St.3d at 122, 676 N.E.2d at 893: “In the case sub judice, the underlying action was an ordinary civil action, seeking damages. It was recognized at common law and hence was not a special proceeding.”
{¶ 35} As in both Polikoff and Walters, the order at issue in this case was not entered in a special proceeding. The “underlying action” is an ordinary civil suit for damages, which of course was known at common law.
{¶ 37} In Thompson v. Wing (1994), 70 Ohio St.3d 176, 181, 637 N.E.2d 917, 921, a majority of this court, by quoting Griffiths v. Earl of Dudley (1882), 9 Q.B.Div. 357, 363, seemed to accept, at least by implication, that
{¶ 38} Therefore, the explicit requirement that a special proceeding be “specially created by statute” does not appear to be fulfilled in this case, as
{¶ 39} Also, there is a further obstacle to a wrongful-death action being a special proceeding, separate from those discussed above.
{¶ 40} Because a wrongful-death recovery was delineated by statute in 1851, an action for wrongful death was denoted as an action at law prior to 1853 for purposes of
{¶ 42} Having found that
{¶ 43} For all the foregoing reasons, we hold that a trial court order entered in a civil action for damages seeking recovery for a wrongful death is not an order entered in a special proceeding for purposes of
{¶ 44} Our conclusion that an order denying a motion for summary judgment in a civil action for damages involving a wrongful death is not an order entered in a special proceeding for purposes of
Appealability Pursuant to R.C. 2744.02(C)
{¶ 45} Because we have found that
1
Am.Sub.H.B. No. 350 and the Ramifications of Sheward
{¶ 46} Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, was signed into law by former Governor George Voinovich on October 28, 1996, and took effect on January 27, 1997. Am.Sub.H.B. No. 350 purported to amend, enact, or repeal “over one hundred sections of the Ohio Revised Code ‘relative to changes in the laws pertaining to tort and other civil actions.’ ” See Sheward, 86 Ohio St.3d at 458, 715 N.E.2d at 1073, fn. 6, quoting the title of the Act. One of the purported new enactments of Am.Sub.H.B. No. 350 was
{¶ 47} Am.Sub.H.B. No. 350 also purported to amend
{¶ 48} The reason we use the word “purported” in the above descriptions to refer to the legislative actions contained within Am.Sub.H.B. No. 350 is that in Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, at paragraph three of the syllabus, this court held that “Am.Sub.H.B. No. 350 violates the one-subject provision of
{¶ 49} In Sheward, this court thus struck down all legislative action contained within Am.Sub.H.B. No. 350, including the attempted enactment of
{¶ 50} After the decision in Sheward was announced, this court issued a series of entries in cases implicating
2
Am.Sub.H.B. No. 215 and “Reenactment”
“Whether the judgment of the trial court denying immunity is final and appealable depends on whether
R.C. 2744.02(C) was validly reenacted by the General Assembly in Am.Sub.H.B. No. 215, given thatR.C. 2744.02(C) was declared unconstitutional as being part of Am.Sub.H.B. No. 350. That is, if Am.Sub.H.B. No. 215 validly reenacted this section, then the trial court‘s decision denying immunity to the board of education would be final, and the jurisdiction of the court of appeals would not be questioned by this court.” 88 Ohio St.3d at 15, 722 N.E.2d at 1026 (Cook, J., dissenting).
{¶ 52} Am.Sub.H.B. No. 215, effective June 30, 1997, contained an amendment to
{¶ 53}
{¶ 54} Consistent with this provision, Am.Sub.H.B. No. 215, in amending
{¶ 56} In a related vein, Middletown argues that, pursuant to
{¶ 57} While the reenactment argument exposes an ambiguity and is plausible on its face, serious deficiencies in the argument emerge when its specifics are considered.
3
The Intent of the General Assembly
{¶ 58} The essential goal of statutory construction is to give effect to the intent of the General Assembly. See Carter v. Youngstown (1946), 146 Ohio St. 203, 32 O.O. 184, 65 N.E.2d 63, paragraph one of the syllabus. The intent may be inferred from the particular wording the General Assembly has chosen to set forth the substantive terms of a statute. See Wachendorf v. Shaver (1948), 149 Ohio St. 231, 36 O.O. 554, 78 N.E.2d 370, paragraph five of the syllabus. Intent may also
{¶ 59} Thus, for Am.Sub.H.B. No. 215 to successfully enact or reenact
{¶ 60}
“Bills shall be printed in the exact language in which they were passed, under the supervision of the clerk of the house in which they originated. New matter shall be indicated by capitalization and old matter omitted by striking through such matter. Prior capitalization in a Revised Code section shall be indicated by italicized type.”
{¶ 61} The editor‘s comment in Baldwin‘s Ohio Revised Code Annotated to
“When amending a law or reviving a law previously repealed many legislative bodies include in the act only the desired amending language or words
of revivor, which can be confusing because the language does not appear in context with the law amended or revived. The General Assembly is prohibited from this practice by division (D) of this section, which also requires that the act repeal the amended section. R.C. 101.52 (now R.C. 101.53) provides devices for showing changes in context in the printed bill or act: matter to be deleted is shown struck through, and new matter to be inserted is shown in capital letters.”
{¶ 62} The printing format of Am.Sub.H.B. No. 215 indicates no intent to reenact or enact
{¶ 63}
“Section 16 [now Section 15(D)], Article II of the Constitution, requires that where a law is amended, the new act shall contain the section or sections amended, and the section or sections so amended shall be repealed. In compliance with this the general assembly, when it amended [the statute at issue], did repeal the section as it existed prior thereto. It is to be remembered that the only change made in the statute was the addition of two classes of misdemeanors. The provisions contained in the act as amended which were in the original act are not considered as repealed and again reenacted, but are regarded as having been continuous and undisturbed by the amendatory act. In re Allen [1915], 91 Ohio St. 315 [320-321, 110 N.E. 535, 537].”
{¶ 64} In Weil v. Taxicabs of Cincinnati, Inc. (1942), 139 Ohio St. 198, 206, 22 O.O. 205, 208, 39 N.E.2d 148, 152, this court stated:
“The courts have generally held, notwithstanding this [current Section 15(D), Article II] and similar constitutional provisions, that where an act is
amended, the part of the original act which remains unchanged is to be considered as having continued in force as the law from the time of its original enactment, and new portions as having become the law only at the time of the amendment. Black on Interpretation of Laws (2d Ed.) 579 and 582, Sections 168 and 169; 1 Sutherland Statutory Construction (2d Ed.) 441 and 445, Sections 237 and 238; McKibben v. Lester [1859], 9 Ohio St. 627 [1859 WL 40]; State ex rel. McLaughlin v. City of Newark [1894], 57 N.J.L. 298, 30 A. 543. “The court in the last cited case says that ‘by observing the constitutional form of amending a section of a statute, the Legislature does not express an intention then to enact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconvenience.’ ” See, also, In re Petition to Annex 320 Acres to the Village of S. Lebanon (1992), 64 Ohio St.3d 585, 595, 597 N.E.2d 463, 470, citing In re Allen, 91 Ohio St. at 320-321, 110 N.E. at 537, for the proposition that “when a statute is amended the part that remains unchanged is to be considered as having continued as the law from the time of its original enactment.”
{¶ 65} As the preceding discussion illustrates,
{¶ 66} In accordance with these precedents, it is apparent that
{¶ 67} For all the foregoing reasons, we hold that
III
Conclusion
{¶ 68} Neither
{¶ 69} Accordingly, the judgment of the court of appeals as to its jurisdiction is reversed, the judgment of the court of appeals on the merits of the appeal is vacated, and this cause is remanded to the trial court for further proceedings.
Judgment reversed
and cause remanded.
Douglas, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur.
Moyer, C.J., and Lundberg Stratton, J., concur separately.
Moyer, C.J., and Cook, J., concur in part.
{¶ 70} I reluctantly concur with the determination in Part II C of the majority opinion that
{¶ 71} I did not agree with the majority in Sheward that the bill in its entirety was unconstitutional. In particular, I expressed the opinion that even if certain provisions violated the one-subject rule of the Constitution, those offending provisions should be severed without striking the entire Act. Id. at 539, 715 N.E.2d at 1128 (Lundberg Stratton, J., dissenting). This case presents a perfect example of the chaos resulting from Sheward.
{¶ 72} The General Assembly clearly intended to provide a political subdivision or an employee of a political subdivision the ability to immediately appeal from an order that denied the benefit of an alleged immunity from liability and enacted
{¶ 73} Nevertheless, I am constrained to agree that, based upon the technical requirements in the bill-making process,
Cook, J., concurring in part.
{¶ 74} I agree with the syllabus paragraphs and with most of the majority‘s reasoning. I respectfully disagree, however, with two points the majority suggests and with the majority‘s characterization of the disposition of this case.
{¶ 75} First, the majority states that “in considering whether a particular order affected a substantial right in a special proceeding, the reviewing court‘s analysis first focuses on the special proceeding portion of the inquiry. Only if it is first determined that an order was entered in a special proceeding is it necessary to go on to consider whether the order affected a substantial right.” To constitute a final appealable order under
{¶ 76} Second, in holding that this case involves an ordinary civil action for damages and not a special proceeding, the majority refers to the headings to
“[H]eadings are publisher‘s aids to the user of the code. [They are not] part of the code; [they are not] official. ‘In Ohio, the General Assembly does not assign
official Revised Code headings, or taglines; they are written by the Publisher‘s editorial staff.’ Baldwin‘s Ohio Legislative Service (1994), User‘s Guide, 4. ‘Where new sections have been added to the Revised Code without official headings, descriptive headings have been supplied by the publisher‘s editorial staff.’ Page‘s Revised Code Annotated (1990), Preface, vi.” Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc. (1994), 70 Ohio St.3d 281, 286, 638 N.E.2d 991, 995, fn. 1 (Resnick, J., concurring).
{¶ 77} Therefore, I decline to join this cumulative point of analysis.
{¶ 78} Finally, the procedural disposition of this case is redundant. The majority reverses the court of appeals’ determination of its jurisdiction, vacates its order as to the merits of the underlying appeal, and remands the cause to the trial court for further proceedings. This court has in the past most often merely vacated courts of appeals’ orders when no final appealable order exists. See, e.g., Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, 676 N.E.2d 890; Hitchings v. Weese (1997), 77 Ohio St.3d 390, 674 N.E.2d 688; State v. Lambert (1994), 69 Ohio St.3d 356, 632 N.E.2d 511; State v. Crago (1990), 53 Ohio St.3d 243, 559 N.E.2d 1353. This is so because by vacating for want of jurisdiction the judgment of the court of appeals, we implicitly overturn that court‘s determination regarding its jurisdiction. Therefore, I believe that the correct disposition of this case is simply to vacate the judgment of the court of appeals and to remand this cause to the trial court for further proceedings.
{¶ 79} Accordingly, with the exception of the three foregoing points, I concur in the majority‘s reasoning and consequent disposition of this cause.
Moyer, C.J., concurs in the foregoing opinion.