¶1 concurring.
¶2 I concur in the judgment reversing the trial court’s entry, but for the following reasons. Initially, I note that there is some issue as to the appealability of the court’s December 31, 1990 entry where the issue of child support was not resolved. See Tismo v. Tismo (Aug. 28, 1990), Lawrence App. No. 1917, unreported, 1990 WL 127064; but, see, Shull v. Shull (July 31, 1991), Greene App. No. 89CA89, unreported, 1990 WL 115983. Assuming a final, appealable order, I agree that the trial court erred in refusing to hold a jury trial.
¶3 In Smyth v. Shyne (Oct. 18, 1991), Montgomery App. No. 12778, unreported, 1991 WL 216404, the Second Appellate District held as follows in resolving the same issue regarding the conflict between R.C. 3111.12(D) and Civ.R. 38(B):
¶4 “In 1982 the General Assembly adopted a modified version of the Uniform Parentage Act which completely replaced the former provisions relating to paternity proceedings. … Included within its provisions was R.C. 3111.12 which provided that any party could demand a jury trial by the filing of the demand within three days after the action was set for trial.
¶5 “The 1968 Modern Courts Amendment Art. IV, Sec. 5(B) provides in pertinent part:
¶6 “ ‘The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any *340 substantive right …. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’
¶7 (t …
¶8 “We agree with the appellant that the right of a jury trial is a substantive right, but the manner of exercising that right is essentially procedural and is, pursuant to the Ohio Constitution, controlled by the civil rules, namely Civ.R. 38(B).
¶9 (( …
¶10 “[W]e find R.C. 3111.12 as it relates to the procedure of demanding a jury trial is ineffectual in the fact [sic] of the Modern Courts Amendment ….”
¶11 I am persuaded that the reasoning in Smyth is correct. Therefore, I disagree with the majority’s conclusion that R.C. 3111.12 controls. Nevertheless, since appellant filed a timely jury demand pursuant to Civ.R. 38(B), a reversal is warranted. I additionally note that merely because appellant failed to renew his jury demand in his amended answer does not waive this issue. Cincinnati Ins. Co. v. Gray (1983), 7 Ohio App.3d 374, 7 OBR 474, 455 N.E.2d 1080. Hence, I concur in the reversal.