George Shima Buick, Inc. v. Ferencak

[This decision has been published in Ohio Official Reports at 

91 Ohio St.3d 1211

.]




      GEORGE SHIMA BUICK, INC., APPELLEE, v. FERENCAK, APPELLANT.
          [Cite as George Shima Buick, Inc. v. Ferencak, 

2001-Ohio-238

.]
Appeal and certification of conflict dismissed and judgment of court of appeals
          vacated for want of jurisdiction.
  (Nos. 00-203 and 00-550–Submitted November 14, 2000–Decided February 7,
                                           2001.)
    APPEAL from and CERTIFIED by the Court of Appeals for Lake County, No.
                                         98-L-202.
                                   __________________
          {¶ 1} The appeal and certification of conflict are dismissed, sua sponte, and
the judgment of the court of appeals is vacated for want of jurisdiction. Cicco v.
Stockmaster (2000), 

89 Ohio St.3d 95

, 

728 N.E.2d 1066

. A pleading was not served
upon the Attorney General per Cicco.
          MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ.,
concur.
          LUNDBERG STRATTON, J., concurs separately.
          DOUGLAS, J., dissents.
          PFEIFER and COOK, JJ., dissent.
                                   __________________
          LUNDBERG STRATTON, J., concurring.
          {¶ 2} This case illustrates the significance and importance of our decision
in Cicco v. Stockmaster (2000), 

89 Ohio St.3d 95

, 

728 N.E.2d 1066

.
          {¶ 3} Each time a party legally challenges the constitutionality of a state
statute, the party is, in essence, requesting the court to enter a declaratory judgment
that the statute is unconstitutional. Even if the challenge is not initially raised in a
“complaint for declaratory judgment” pursuant to R.C. 2721.12, the court must
                              SUPREME COURT OF OHIO




enter a formal judgment deciding the issue of constitutionality regardless of when
the issue is raised. Such a decision is, in fact, a declaratory judgment.
       {¶ 4} Pursuant to Cicco’s interpretation of R.C. 2721.12, when a party
challenges the constitutionality of a state statute, the issue must be framed in a
complaint or other initial pleading, such as a counterclaim or cross-claim, and the
party asserting the claim must serve the Attorney General in accordance with the
methods set forth in Civ.R. 4.1. This assures notice to the Attorney General and
allows the Attorney General the opportunity to appear and defend the interests of
the state. Without these protections, there is no method to apprise the Attorney
General that the constitutionality of a state statute is being attacked.
       {¶ 5} This case was filed in small claims court by plaintiff George Shima
Buick, Inc., alleging damages of $400.09.            The defendant challenged the
constitutionality of R.C. 1925.17 in a motion to dismiss. The defendant alleged, in
essence, that R.C. 1925.17, which permits a corporation to file and present a claim
in small claims court through a bona fide officer or salaried employee, violates the
separation of powers doctrine by allowing the General Assembly to make rules that
permit the unauthorized practice of law by a layperson. The Attorney General was
never served or otherwise notified of the action and did not enter an appearance.
The defendant who raised the constitutional issue did not appear even at trial. At
the Supreme Court level, the plaintiff-appellee did not file a brief. Nevertheless,
based upon this meager record, we were asked to decide the constitutionality of
R.C. 1925.17, notwithstanding the fact that R.C. 1925.17 impacts the many
corporations that utilize small claims courts.
       {¶ 6} However, in accordance with R.C. 2721.12 and Cicco, we determined
that jurisdiction did not vest in the court of appeals because the Attorney General
was not served. Our dismissal of the case is not because this is not an important
issue, but because the state did not have the opportunity, afforded by statute, to




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                                 January Term, 2001




appear and be heard. This court’s interpretation of R.C. 2721.12 in Cicco ensures
such a result. Therefore, I concur with dismissal of this case for lack of jurisdiction.
                                __________________
        COOK, J., dissenting.
        {¶ 7} Because the majority’s decision both rewrites statutory law and
ignores decisional law, I respectfully dissent.
        {¶ 8} The majority states that “the judgment of the court of appeals is
vacated for want of jurisdiction” because “[a] pleading was not served upon the
Attorney General per Cicco.” Cicco, however, is wholly inapplicable to this case.
The Cicco majority stated that “[t]he issue before us is what constitutes proper
service upon the Attorney General for purposes of former R.C. 2721.12 in a
declaratory judgment action.” (Emphasis added.) Cicco v. Stockmaster (2000), 

89 Ohio St.3d 95, 97

, 

728 N.E.2d 1066, 1069

. The syllabus of that opinion addresses
the obligations that former R.C. 2721.12 imposed upon a party challenging the
constitutionality of a statute. Former R.C. 2721.12 provided that it applied only
“[w]hen declaratory relief is sought.” 144 Ohio Laws, Part II, 2902, 2930. This
language in former R.C. 2721.12 is essentially the same as that found in the current
version of the statute.
        {¶ 9} This case is not a declaratory judgment action. Rather, this cause
began as a small claims case initiated by George Shima Buick, Inc. to recover
damages and interest after Ferencak stopped payment on a check she had written
for automobile repairs.        In a motion to dismiss, defendant raised the
constitutionality of R.C. 1925.17. Perplexingly, the majority imports the special
service requirement of the declaratory judgment statute to this non-declaratory
judgment action. It does so without supporting statutory or decisional law.
        {¶ 10} This court’s long-standing, consistent precedent interprets former
R.C. 2721.12 as applicable only in declaratory judgment actions. See, e.g., State ex
rel. Madison v. Cotner (1981), 

66 Ohio St.2d 448, 449

, 

20 O.O.3d 381, 381-382

,




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                             SUPREME COURT OF OHIO

423 N.E.2d 72, 73

 (“Examination of [former R.C. 2721.12] reveals [that] it applies
to actions in which declaratory relief is sought. This is an original action in
mandamus; therefore, that statute is inapplicable.”). See, also, Warren Cty. Bd. of
Commrs. v. Lebanon (1989), 

43 Ohio St.3d 188, 189

, 

540 N.E.2d 242, 244

, citing
Malloy v. Westlake (1977), 

52 Ohio St.2d 103

, 

6 O.O.3d 329

, 

370 N.E.2d 457

 (“It
is apparent from the language of R.C. 2721.12 that it applies only to cases seeking
declaratory judgment which are filed, at least in part, for the purpose of challenging
the constitutionality of a statute, ordinance or franchise.”); Canton v. Imperial
Bowling Lanes, Inc. (1968), 

16 Ohio St.2d 47

, 

45 O.O.2d 327

, 

242 N.E.2d 566

. We
did not deviate from this pattern in Cicco. Cicco, 

89 Ohio St.3d at 97

, 

728 N.E.2d at 1069

.
       {¶ 11} The majority’s decision nonetheless takes the special-service
requirement from the declaratory judgment statute and demands that it be met in
non-declaratory judgment actions. No sound legal reasoning is offered for doing
so. Apparently, the majority thinks that it would be good public policy to have the
Attorney General served any time a party challenges the constitutionality of a
statute. But such public-policy choices are the function of the General Assembly.
See Rambaldo v. Accurate Die Casting (1992), 

65 Ohio St.3d 281, 288

, 

603 N.E.2d 975, 980

 (“This is a public-policy issue which should be addressed by the General
Assembly * * *. It is not a problem which should be addressed by this court in a
sweeping public-policy statement.”); Lyons v. Lyons (1965), 

2 Ohio St.2d 243, 247

,

31 O.O.2d 504, 506

, 

208 N.E.2d 533, 537

 (“If there is to be a change in the public
policy of the state * * * it should come from the General Assembly.”); Korr v.
Thomas Emery’s Sons, Inc. (1950), 

154 Ohio St. 11, 18-19

, 

42 O.O. 102, 105

, 

93 N.E.2d 14, 17

 (“Courts have nothing to do with forming public policy and declare
such public policy only after the policy has been formulated by the General
Assembly.”); State ex rel. Williams v. Glander (1947), 

148 Ohio St. 188, 205

, 

35 O.O. 192, 199

, 

74 N.E.2d 82, 90

 (“So long as an act of the General Assembly is




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                                 January Term, 2001




constitutional, the question of policy is solely for the legislative branch of our state
government to determine.”). We can only imagine the reaction of the Attorney
General to such a proposal if it were subjected to legislative hearings, as any such
legislation ought to be. This court, on the other hand, did not even have the benefit
of briefs on the issue of the statute’s scope.
        {¶ 12} Accordingly, I disagree with the majority’s incorrect procedural
disposition and would reach the merits of this case.
        PFEIFER, J., concurs in the foregoing dissenting opinion.
                                __________________
        Paul Mancino, Jr., for appellant.
                                __________________




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