[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 182.]
Stevens, Appellant, v. Ackman et al.; City of Middletown, Appellee.
[Cite as Stevens v. Ackman, 2001-Ohio-249.]
Torts—Wrongful death—Appellate procedure—Final order—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—Political subdivision tort liability—R.C. 2744.02(C), as
purportedly enacted in 1996 Am.Sub.H.B. No. 350, is invalid.
(Nos. 00-225 and 00-513—Submitted November 29, 2000—Decided March 28,
2001.)
APPEAL from and CERTIFIED by the Court of Appeals for Butler County, No.
CA99-03-0053.
__________________
SYLLABUS OF THE COURT
1. 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.
2. 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.)
__________________
SUPREME COURT OF OHIO
ALICE ROBIE RESNICK, J.
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 R.C. Chapter
2744, the Political Subdivision Tort Liability Act, claiming that it was entitled to
statutory immunity and that Stevens was unable to prevail against it as a matter of
law. Middletown argued that the exception to political subdivision immunity found
in R.C. 2744.02(B)(3) (“political subdivisions are liable for injury, death, or loss to
persons or property caused by their failure to keep public roads … open, in repair,
and free from nuisance”) was not applicable in the circumstances of this case to
defeat its immunity.
2
January Term, 2001
{¶ 4} The trial court denied the motion for summary judgment, relying on
this court’s decisions in Dickerhoof v. Canton (1983), 6 Ohio St.3d 128, 6 OBR
186,
451 N.E.2d 1193; Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd.
Comm. (1992),
63 Ohio St.3d 318, 322,
587 N.E.2d 819, 823; and Franks v. Lopez
(1994),
69 Ohio St.3d 345,
632 N.E.2d 502, to conclude that the alleged failure of
the city to eliminate the edge drop on Roosevelt Road was potentially a failure to
keep the roadway free from nuisance pursuant to the exception to immunity under
R.C. 2744.02(B)(3). The trial court specifically rejected Middletown’s argument
that the city could be liable only for the failure to maintain the actual roadway itself,
so that there could be no liability because the shoulder or berm of Roosevelt Road
was not the roadway.
{¶ 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
R.C. 2744.03(A)(5) was applicable. The trial court determined that the city had
failed to meet its burden in support of the motion and that genuine issues of material
fact remained to be determined.
{¶ 6} Middletown appealed the denial of its summary judgment motion to
the Court of Appeals for Butler County, initially relying on R.C. 2744.02(C): “An
order that denies a political subdivision or an employee of a political subdivision
the benefit of an alleged immunity from liability as provided in Chapter 2744. or
any other provision of the law is a final order.”
{¶ 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 R.C.
2744.02(C) was not retroactive to apply to a case arising from a death that occurred
in 1994. Stevens also argued that the order appealed from was not a final order
because it was taken from a trial court ruling on issues of fact, not of law, and
further argued that the failure of the trial court to determine in its order that there
3
SUPREME COURT OF OHIO
was “no just reason for delay” deprived the court of appeals of jurisdiction. See
Civ.R. 54(B).
{¶ 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 R.C. 2744.02(C) was enacted
in Am.Sub.H.B. No. 350 (“H.B. 350”), and because this court’s opinion in
Sheward, at paragraph three of the syllabus, had declared H.B. 350 to be
“unconstitutional in toto,” there was no basis for the court of appeals to maintain
jurisdiction over the appeal.
{¶ 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 R.C. 2505.02(B)(2) as an order that affected
a substantial right made in a special proceeding, or pursuant to R.C. 2505.02(B)(4)
as an order that denied a provisional remedy. Middletown also argued that the lack
of Civ.R. 54(B) certification by the trial court did not deprive the court of appeals
of jurisdiction.
{¶ 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 R.C. 2505.02(B)(2), finding that the trial court order denying statutory
immunity affected a “substantial right” and was entered in a “special proceeding,”
and so denied Stevens’s second motion to dismiss for that reason. The court of
appeals found that the underlying action was a “civil claim for wrongful death and
survivorship,” both of which were unknown at common law and “did not exist in
law or equity prior to 1853,” so that a special proceeding was involved within the
meaning of R.C. 2505.02(A)(2).
4
January Term, 2001
{¶ 11} The court of appeals therefore did not specifically rule on Stevens’s
argument, raised within her second motion to dismiss, that it had no jurisdiction
pursuant to R.C. 2744.02(C) in the wake of the Sheward decision. Furthermore,
because it based its jurisdiction on R.C. 2505.02(B)(2), the court of appeals denied
Stevens’s first motion to dismiss, relating to retroactivity of R.C. 2744.02(C), as
moot.
{¶ 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
R.C. 2744.02(B)(3), so that Middletown could not be liable for an alleged failure
to keep the roadway free from nuisance.
{¶ 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 R.C.
2744.02(B)(3).” In Thompson, the Fifth District Court of Appeals found that
whether the edge drop between the pavement and the berm is a nuisance for
purposes of R.C. 2744.02(B)(3) is a factual question, relying on Dickerhoof,
6 Ohio
St.3d 128, 6 OBR 186,
451 N.E.2d 1193. Thus, the court of appeals in Thompson
refused to adopt the position adopted by the court of appeals in the case sub judice,
which is that an edge drop cannot be a “nuisance” as that term is used in R.C.
2744.02(B)(3).
{¶ 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
5
SUPREME COURT OF OHIO
jurisdiction pursuant to R.C. 2744.02(C) to hear an interlocutory appeal from the
denial of a political subdivision’s summary judgment motion based upon statutory
immunity. The court of appeals declined to certify a conflict on that issue.
{¶ 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} Section 3(B)(2), Article IV of the Ohio Constitution limits the
appellate jurisdiction of the courts of appeals to the review of judgments and final
orders of lower courts. Section 3(B)(2), Article IV provides:
“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 R.C. Chapter 2744 was
a final appealable order. If this order was not a final appealable order, the court of
appeals was without jurisdiction to entertain the appeal, and should have dismissed
it without reaching the merits.
{¶ 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
6
January Term, 2001
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 R.C.
2505.02(B)(2) provided the basis for appellate jurisdiction. Therefore, we first
consider the propriety of that determination.
{¶ 20} R.C. 2505.02(B) provides that “[a]n order is a final order that may
be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one
of the following:
“…
“(2) An order that affects a substantial right made in a special proceeding *
….”
{¶ 21} R.C. 2505.02(A)(1) defines “substantial right” as “a right that the
United States Constitution, the Ohio Constitution, a statute, the common law, or a
rule of procedure entitles a person to enforce or protect.”
{¶ 22} R.C. 2505.02(A)(2) defines “special proceeding” as “an action or
proceeding that is specially created by statute and that prior to 1853 was not denoted
as an action at law or a suit in equity.”
{¶ 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
7
SUPREME COURT OF OHIO
specially created by statute are not orders entered in special proceedings pursuant
to R.C. 2505.02.”
{¶ 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
8
January Term, 2001
recognized. In making the determination courts need look only at the underlying
action.”
{¶ 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 R.C. 2505.02. The fact that a case
involves an alleged wrongful death does not transform it into a special proceeding.
{¶ 31} R.C. Chapter 2125 is commonly denominated under the heading
“Action for Wrongful Death.” See heading to R.C. Chapter 2125 in both Baldwin’s
Ohio Revised Code Annotated and Page’s Ohio Revised Code Annotated. The
“action” referred to in this sense is a civil action for damages. It is apparent that
R.C. Chapter 2125 does not give rise to a special proceeding in the sense that that
term is used in Ely, Schuster, Wyckoff, and Polikoff. R.C. Chapter 2125 does not
provide for a remedy to be sought through “an original application to a court for a
judgment or an order” (Ely, 56 Ohio St. at 407, 47 N.E. at 538), it does not authorize
“a special application to a court to enforce” a right (Schuster, 84 Minn. at 407,
87
N.W. at 1015), and it does not provide for what is “essentially an independent
judicial inquiry” (Wyckoff, 166 Ohio St. at 358, 2 O.O.2d at 260, 142 N.E.2d at
664).
{¶ 32} R.C. Chapter 2125 details measures for pursuing a wrongful-death
recovery within an ordinary action for money damages. R.C. 2125.01 provides that
someone who causes the wrongful death of another “shall be liable to an action for
9
SUPREME COURT OF OHIO
damages, notwithstanding the death of the person injured.”1 This provision does
not “specially create” an action or proceeding that was not recognized at common
law or in equity within the meaning of Polikoff or of R.C. 2505.02(A)(2). Thus, it
does not establish the requirements that would be necessary for a case involving a
wrongful death to be a special proceeding. In the same way, no other provision
within R.C. Chapter 2125 establishes the necessary requirements.
{¶ 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
R.C. 2505.02, the court must pointedly examine the basic core of the statute at issue.
The court must specifically ask whether the particular statute actually does create a
special proceeding, or whether the statute merely supplies details within the
structure of an ordinary action.
{¶ 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.
1. Am.Sub.H.B. No. 350 attempted to amend R.C. 2125.01. However, we do not identify the statute
as “former,” because H.B. 350 was declared unconstitutional in its entirety in Sheward, which had
the effect of invalidating the amendment to R.C. 2125.01. See Harp v. Cleveland Hts. (2000), 87
Ohio St.3d 506, 509,
721 N.E.2d, 1020, 1023, fn. 1.
10
January Term, 2001
{¶ 36} Although we have focused on the consideration that the true
underlying action in this case was recognized at common law, there is another
aspect of R.C. 2505.02 and Polikoff that indicates that the trial court order in this
case was not entered in a special proceeding. Both R.C. 2505.02(A)(2) and
Polikoff’s syllabus paragraph require that a special proceeding be one “specially
created by statute.” (Emphasis added.)
{¶ 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 R.C. Chapter
2125 does not “ ‘give any new cause of action, but only substitute[s] the right of
the representative to sue in the place of the right which the deceased himself would
have had if he had survived.’ ” See Thompson,
70 Ohio St.3d at 186,
637 N.E.2d
at 925 (Douglas, J., concurring in judgment).
{¶ 38} Therefore, the explicit requirement that a special proceeding be
“specially created by statute” does not appear to be fulfilled in this case, as R.C.
Chapter 2125 does not create a right of action for wrongful death.
{¶ 39} Also, there is a further obstacle to a wrongful-death action being a
special proceeding, separate from those discussed above. R.C. 2505.02(A)(2)
requires that for a proceeding to be special, it must be one “that prior to 1853 was
not denoted as an action at law or a suit in equity.” Ohio’s first wrongful-death
statute, as this state’s version of what is commonly called Lord Campbell’s Act,
was enacted in 1851. See 49 Ohio Laws 117. Today’s wrongful-death statute
contains the essential provisions of the 1851 statute.
{¶ 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 R.C. 2505.02(A)(2). Hence the precise statutory definition of
special proceeding is not met for that reason.
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SUPREME COURT OF OHIO
{¶ 41} Because we have found that there is no special proceeding at issue
in this case, we need not specifically consider whether the order appealed from
affected a substantial right. See Polikoff, 67 Ohio St.3d at 108,
616 N.E.2d at 218,
fn. 8.
{¶ 42} Having found that R.C. 2505.02(B)(2) does not confer jurisdiction
on the court of appeals in this case, we further find that no other provision in R.C.
2505.02(B) supports the appeal.
{¶ 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 R.C. 2505.02. We reverse the
judgment of the court of appeals on this issue.
{¶ 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 R.C. 2505.02(B)(2) offers some
consistency in an area of law that is frequently fraught with inexplicable
discrepancies. It would be anomalous to hold that such an order would not be a
final order in a case involving a personal injury, but would be one in a case
involving a wrongful death, when the actions are so similar and are conducted
procedurally in much the same manner. If a particular order is not appealable in a
personal injury case, the same order should not be appealable in a wrongful-death
case. We emphasize that, to qualify as a special proceeding, a particular proceeding
must have the characteristics that indicate that an independent judicial inquiry is
taking place. These characteristics are not present in the case sub judice.
12
January Term, 2001
C
Appealability Pursuant to R.C. 2744.02(C)
{¶ 45} Because we have found that R.C. 2505.02(B) does not support
appellate jurisdiction in this case, we proceed to consider whether R.C. 2744.02(C)
provides an alternative ground for the court of appeals to exercise appellate
jurisdiction.
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 R.C. 2744.02(C), which provided
that “[a]n order that denies a political subdivision or an employee of a political
subdivision the benefit of an alleged immunity from liability as provided in Chapter
2744. or any other provision of the law is a final order.” 146 Ohio Laws, Part II,
3989.
{¶ 47} Am.Sub.H.B. No. 350 also purported to amend R.C. 2501.02 to
grant jurisdiction to courts of appeals “upon an appeal upon questions of law to
review, affirm, modify, set aside, or reverse judgments or final orders of courts of
record inferior to the court of appeals within the district, … INCLUDING AN
ORDER DENYING A POLITICAL SUBDIVISION OR AN EMPLOYEE OF A
POLITICAL SUBDIVISION THE BENEFIT OF AN ALLEGED IMMUNITY
FROM LIABILITY AS PROVIDED IN CHAPTER 2744. OR ANOTHER
PROVISION OF THE REVISED CODE, for prejudicial error.” Id. at 3982.
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SUPREME COURT OF OHIO
(Am.Sub.H.B. No. 350 purported to add the phrase capitalized above to the
previous version of R.C. 2501.02 in effect at that time.)
{¶ 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
Section 15(D), Article II of the Ohio Constitution, and is unconstitutional in toto.”
The one-subject rule holding reflected in paragraph three of the syllabus of Sheward
was based on an “ancillary” claim raised in that case as part of relators’ attempt to
have Am.Sub.H.B. No. 350 declared unconstitutional in its entirety and to have its
implementation enjoined. See
86 Ohio St.3d at 452,
715 N.E.2d at 1069.
{¶ 49} In Sheward, this court thus struck down all legislative action
contained within Am.Sub.H.B. No. 350, including the attempted enactment of R.C.
2744.02(C) and the attempted amendment of R.C. 2501.02.
{¶ 50} After the decision in Sheward was announced, this court issued a
series of entries in cases implicating R.C. 2744.02(C), resolving them on authority
of Sheward, and indicating that the law regarding appealability of orders denying
statutory immunity to political subdivisions and employees of political subdivisions
had returned to the law that existed prior to Am.Sub.H.B. No. 350’s attempt to
change it. See, e.g., Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188,
718
N.E.2d 912; Estate of Weitzel v. Cuyahoga Falls (1999),
87 Ohio St.3d 200,
718
N.E.2d 921; Braden v. Cleveland Bd. of Edn. (1999),
87 Ohio St.3d 206,
718
N.E.2d 924; Hubbard v. Canton City School Bd. of Edn. (2000),
88 Ohio St.3d 14,
722 N.E.2d 1025.
2
Am.Sub.H.B. No. 215 and “Reenactment”
14
January Term, 2001
{¶ 51} In one of the cases mentioned above, Hubbard, two justices
dissented from the entry vacating the opinion of the court of appeals for lack of a
final appealable order. In the Hubbard dissent, the following statement was made:
“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 that R.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 R.C. 2744.02(B)(2), which deals with the liability of political
subdivisions for negligent acts by their employees with respect to proprietary
functions. The sole purpose of the amendment was to insert a reference to a statute
(R.C. 3314.07) that was not previously mentioned within R.C. 2744.02(B)(2).
Am.Sub.H.B. No. 215 made no other changes to R.C. 2744.02.2 147 Ohio Laws,
Part I, 1149-1150.
{¶ 53} Section 15(D), Article II of the Ohio Constitution requires that “[n]o
law shall be revived or amended unless the new act contains the entire act revived,
or the section or sections amended, and the section or sections amended shall be
repealed.”
{¶ 54} Consistent with this provision, Am.Sub.H.B. No. 215, in amending
R.C. 2744.02(B)(2), reprinted the entire version of R.C. 2744.02 thought to be in
existence at the time, including R.C. 2744.02(C) as purportedly enacted in
Am.Sub.H.B. No. 350.
2. Am.Sub.H.B. No. 215 made no changes to the version of R.C. 2501.02 purportedly in effect at
the time after that statute’s attempted amendment by Am.Sub.H.B. No. 350.
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{¶ 55} Middletown argues that, because Am.Sub.H.B. No. 215 amended
R.C. 2744.02(B)(2) in compliance with the requirement of Section 15, Article II,
the General Assembly thereby “enacted” an entirely new R.C. 2744.02 (including
a new R.C. 2744.02[C]) in Am.Sub.H.B. No. 215. Middletown argues that, because
Sheward found Am.Sub.H.B. No. 350 unconstitutional, and therefore the version
of R.C. 2744.02(C) that the bill attempted to enact unconstitutional as well, then
R.C. 2744.02(C) was never truly “enacted” until Am.Sub.H.B. No. 215 enacted the
statute, because everything in Am.Sub.H.B. No. 350 was a nullity.
{¶ 56} In a related vein, Middletown argues that, pursuant to Section 15,
Article II, the General Assembly’s actions within Am.Sub.H.B. No. 215 should be
viewed as a “repeal” in its entirety of the version of R.C. 2744.02 believed to be in
effect at the time. According to this “reenactment” argument, the act therefore
repealed the version of R.C. 2744.02(C) that this court found unconstitutional in
Sheward, and replaced it with a later version of R.C. 2744.02(C) that was free of
the constitutional infirmity that had caused Am.Sub.H.B. No. 350 to be struck down
in Sheward. But, see, Simmons-Harris v. Goff (1999), 86 Ohio St.3d 1, 14-17,
711
N.E.2d 203, 214-216.
{¶ 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
16
January Term, 2001
be revealed in the procedural passage of the legislative act under consideration,
when that body passes legislation that enacts, amends, or repeals a statute. See
State v. Wilson (1997), 77 Ohio St.3d 334, 336-337,
673 N.E.2d 1347, 1350; see,
also, State ex rel. Durr v. Spiegel (1914),
91 Ohio St. 13, 22,
109 N.E. 523, 525; In
re Hesse (1915),
93 Ohio St. 230, 235,
112 N.E. 511, 512 (both determining intent
of General Assembly by considering the way the statute at issue was amended).
{¶ 59} Thus, for Am.Sub.H.B. No. 215 to successfully enact or reenact R.C.
2744.02(C), the General Assembly must have intended the act to have that effect.
It is readily apparent that no such intent was present. At the time Am.Sub.H.B. No.
215 was passed, the General Assembly had no reason to believe that the purported
enactment of R.C. 2744.02(C), attempted a short time earlier in Am.Sub.H.B. No.
350, would later be found to be unsuccessful. It is clear that while the General
Assembly intended to make a minor amendment in Am.Sub.H.B. No. 215 to R.C.
2744.02(B), the General Assembly did not intend to take any action whatsoever
with regard to R.C. 2744.02(C).
{¶ 60} R.C. 101.53 (formerly 101.52, see 1998 H.B. No. 649, 147 Ohio
Laws, Part III, 5043), provides:
“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 Section 15, Article II of the Ohio Constitution makes some relevant comments
regarding R.C. 101.53, and indicates a relationship between that statute and Section
15(D), Article II:
“When amending a law or reviving a law previously repealed many
legislative bodies include in the act only the desired amending language or words
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SUPREME COURT OF OHIO
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 R.C. 2744.02(C). R.C. 2744.02(C) appears in the printed act in
regular type, without the capitalization that would indicate new material pursuant
to R.C. 101.53.
{¶ 63} R.C. 1.54 provides: “A statute which is reenacted or amended is
intended to be a continuation of the prior statute and not a new enactment, so far as
it is the same as the prior statute.” In In re Hesse, 93 Ohio St. at 234, 112 N.E. at
512, this court stated:
“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
18
January Term, 2001
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, Section 15(D), Article II sets
out the form for the General Assembly to follow when amending a statute, but cases
such as Hesse, Allen, and Weil explain the substantive significance of what is
occurring, and give guidance for ascertaining the intent of the General Assembly
when an amendment to a specific statute is contained within a particular act.
{¶ 66} In accordance with these precedents, it is apparent that R.C.
2744.02(C) continued forward as purportedly enacted in Am.Sub.H.B. No. 350,
despite Middletown’s arguments based on Section 15(D), Article II. Clearly, the
General Assembly did not intend to reenact R.C. 2744.02(C) in Am.Sub.H.B. No.
215. Therefore, that act neither reenacted nor enacted R.C. 2744.02(C). When this
court in Sheward struck down Am.Sub.H.B. No. 350, it struck down the version of
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R.C. 2744.02(C) that Am.Sub.H.B. No. 350 attempted to enact, and R.C.
2744.02(C) remains invalid as a result of Sheward.
{¶ 67} For all the foregoing reasons, we hold that R.C. 2744.02(C), as
purportedly enacted in Am.Sub.H.B. No. 350, is invalid. Furthermore, R.C.
2744.02(C) was neither enacted nor reenacted by Am.Sub.H.B. No. 215. Sheward,
86 Ohio St.3d 451,
715 N.E.2d 1062, paragraph three of the syllabus, and Hubbard,
88 Ohio St.3d 14,
722 N.E.2d 1025, followed.
III
Conclusion
{¶ 68} Neither R.C. 2505.02(B) nor R.C. 2744.02(C) provided a valid basis
for the court of appeals to exercise jurisdiction to entertain Middletown’s appeal.
Therefore, the court of appeals should have dismissed the appeal without reaching
the merits of this case. Consequently, we vacate the decision of the court of appeals
on the merits. See Walters, 78 Ohio St.3d at 123, 676 N.E.2d at 894. Since the
court of appeals was without jurisdiction to reach the merits of the appeal, we
likewise may not reach the merits.3
{¶ 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.
3. Haynes v. Franklin (Sept. 25, 2000), Warren App. No. CA2000-03-025, unreported, 2000 WL
1371000, discretionary appeal and certified conflict allowed today, case Nos. 00-2004 and 00-2141,
presents this court with an opportunity to address the edge-drop issue on the merits.
20
January Term, 2001
__________________
LUNDBERG STRATTON, J., concurring.
{¶ 70} I reluctantly concur with the determination in Part II C of the
majority opinion that R.C. 2744.02(C) was neither enacted nor reenacted by 1997
Am.Sub.H.B. No. 215, because, based upon the format of the language of R.C.
2744.02 in H.B. 215, it was apparent that the General Assembly merely amended a
section of the statute and did not enact or reenact a new law and repeal the old one.
No one has disputed the General Assembly’s authority to determine when issues
involving immunity may be appealed. Had the majority in State ex rel. Ohio
Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,
715 N.E.2d 1062,
merely severed those sections in 1996 Am.Sub.H.B. No. 350 that violated the one-subject rule, I believe that R.C. 2744.02(C) would have remained a valid enactment.
{¶ 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 R.C. 2744.02(C) as part of H.B. 350. The city cites strong public policy
in support of this law. Nevertheless, with no analysis of the constitutional viability
of R.C. 2744.02(C) itself, the statute was struck down in Sheward merely because
it was part of the overall tort reform bill.
{¶ 73} Nevertheless, I am constrained to agree that, based upon the
technical requirements in the bill-making process, R.C. 2744.02(C) was neither
enacted nor reenacted by H.B. 215. Therefore, I concur.
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SUPREME COURT OF OHIO
MOYER, C.J., concurs in the foregoing concurring opinion.
__________________
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 R.C. 2505.02(B)(2), the order at issue must be “[a]n
order that affects a substantial right” and must have been “made in a special
proceeding.” Given that there is no statutory basis for the sequential inquiry set
forth in dicta in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 108,
616 N.E.2d 213,
218, fn. 8, and again by the majority today, and given that the failure of either prong
of the two-part inquiry would yield a resolution regarding appealability, I conclude
that a reviewing court may address either the substantial right inquiry or the special
proceeding inquiry first.
{¶ 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 R.C.
Chapter 2125 contained in both Baldwin’s Ohio Revised Code Annotated and
Page’s Ohio Revised Code Annotated. But R.C. 1.01 provides that “Title, Chapter,
and section headings and marginal General Code section numbers do not constitute
any part of the law as contained in the ‘Revised Code.’ ” One member of this court
has explained the character of such headings as follows:
“[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
22
January Term, 2001
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.
__________________
Ted L. Wills, Howard M. Schwartz and Marc D. Mezibov, for appellant.
Robert J. Gehring and Leslie S. Landen, Middletown Law Director, for
appellee.
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SUPREME COURT OF OHIO
Arthur, O’Neil, Mertz & Bates Co., L.P.A., and Joseph W. O’Neil, urging
reversal for amicus curiae Ohio Academy of Trial Lawyers.
John E. Gotherman, Barry M. Byron and Stephen L. Byron, urging
affirmance for amicus curiae Ohio Municipal League.
Isaac, Brant, Ledman & Teetor, Mark Landes and Paul A. Mackenzie,
urging affirmance for amici curiae County Commissioners’ Association of Ohio
and County Engineers’ Association of Ohio.
__________________
24
