Opinion
No. 89-14456.
Decided February 21, 1990.
James N. Curzan, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Susan M. Sullivan, for defendant.
This case presents the question of whether certain cases shall be administratively determined by the Clerk of the Ohio Court of Claims pursuant to his powers under R.C. 2743.10.
Plaintiff Nationwide Insurance Company filed an action in this court on December 4, 1989, by which it asserted a claim for recovery of $1,600. The complaint alleges that, on or about December 15, 1987, a tree limb "under the control and maintenance" of defendant Ohio Department of Transportation ("ODOT") fell upon an automobile belonging to plaintiff's insured. Plaintiff has alleged that defendant caused the damage to its insured's automobile by failing to properly maintain its (ODOT's) tree and by failing to prevent such tree from becoming a nuisance. Having paid the above amount pursuant to the terms of its contract of insurance, plaintiff stands as the subrogee of its insured. Bogan v. Progressive Ins. Co. (1988) 36 Ohio St.3d 22, 521 N.E.2d 447.
On January 3, 1990, defendant filed a "Motion to Transfer Case To Administrative Docket." Defendant has grounded its motion upon the recent amendment to R.C. 2743.10, effective July 1, 1989. This statute now provides, in pertinent part, as follows: "(A) Civil actions against the state of two thousand five hundred dollars or less shall be determined administratively by the clerk of the court of claims * * *." In defendant's view, the plain language of the statute requires that this case be placed upon the Clerk's docket for an administrative determination.
In order to better understand the implications of defendant's motion, the precise impact of the amendment must be considered. Prior to amendment, R.C. 2743.10 applied only to those civil actions against the state for $1,000 or less. Sub. H.B. No. 267 (142 Ohio Laws, Part II, 3134, 3138). Those cases within the purview of R.C. 2743.10(A) are subject to the administrative determination created thereby. The statute establishes methods for the resolution of disputes involving less than the ceiling amount which are quite different from those claims for more than that amount. R.C. 2743.10(C) provides that "[t]he clerk shall determine the civil action covered by division (A) of this section and make a report of his decision, together with findings of fact and conclusions of law * * *." Usually, such determinations are made on the basis of written submissions of the parties. Also, the rules of evidence are excluded from application in such determinations. R.C. 2743.10(C). In addition, subsection (D) states that a party may appeal only to the Court of Claims and no farther. On the other hand, all cases seeking greater damages are placed on the regular trial docket of the Court of Claims and are to be heard before a judge of that court. R.C. 2743.03(C). Upon the rendering of an adverse decision, either party could perfect an appeal to the court of appeals and above. R.C. 2743.20.
The consequence of amending R.C. 2743.10(A) to increase the threshold amount is that those whose claims asserting damages of more than $1,000 and not more than $2,500 are made subject to the administrative hearing provisions of the statute. Obviously, those whose claims arise after the effective date of the amendment are subject to it. Here, however, plaintiff's cause of action arose in December 1987, which was well before the amendment. Nevertheless, the cause of action was not filed until December 1989, more than five months after the amendment's effective date. The question thus presented is whether the application of the amended statute to those claims which were accrued but not filed by the amendment's effective date would contravene the ban against retroactive law contained in Section 28, Article II, Ohio Constitution, which states: "The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * * *."
The standard of analysis for questions involving retroactive laws was provided by the Ohio Supreme Court in Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. Ordinarily, before engaging in an analysis of whether a particular law might pass constitutional muster, it must first be inquired whether the General Assembly intended that law to have retroactive effect. "Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution." Van Fossen, supra, at paragraph one of the syllabus. R.C. 1.48 states that: "A statute is presumed to be prospective in its operation unless expressly made retrospective." In the instant case, the amendments at issue contain no express or implied indication that they are to be applied retroactively. Thus, the legislative intent can only have been to apply the statute prospectively.
Although clarifying the issue of legislative intent is helpful to an overall understanding of the present motion, it does not resolve the central issue. For in spite of the legislative intent, the question remains whether prospective application of the amendments to cases which arose prior to the effective date of the law, but did not come before the court until afterwards, effects a retroactive law in the same way as one expressly made to so apply. Of course, once confronted with the mandate that retroactive laws are forbidden, the immediate observation is that all laws of whatever kind operate to some extent upon those preexisting circumstances which necessitated the enactment. For the nature of legislation is that it creates change in that which was, and this is the very province of the legislature. It is only when a law operates, either by its terms or as applied, to destroy particular rights that it comes within the range of those retroactive enactments which are forbidden by the Ohio Constitution. As stated in Van Fossen, supra, 36 Ohio St.3d at 105, 522 N.E.2d at 495:
"The second rule, that of constitutional limitation, was developed first in this country * * *. * * * [It was expanded] to `include a prohibition against laws which commenced on the date of enactment and which operated in futuro, but which, in doing so, divested rights, particularly property rights, which had been vested anterior to the time of enactment of the laws.' Smead, [The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence (1936), 20 Minn.L.Rev. 775], supra, at 781-782 * * *. * * *"
Turning now to the question of which laws are retroactive, it is noted that the legislature has complete and ample power to alter or repeal existing laws or to enact new ones, and there is no right in an existing statute which precludes its change or repeal. Sandusky City Bank v. Wilbor (1857), 7 Ohio St. 481; Peters v. McWilliams (1880), 36 Ohio St. 155; Beazell v. State (1924), 111 Ohio St. 838, 146 N.E. 316; State, ex rel. Bouse, v. Cickelli (1956), 165 Ohio St. 191, 59 O.O. 261, 134 N.E.2d 834. Also, it is an established rule that the repeal or amendment of a statute will not destroy, affect, or impair rights vested or acquired under it. Riddle v. Bryan (1831), 5 Ohio 48; Halderman v. Larrick (1886), 44 Ohio St. 438, 8 N.E. 177; Bartol v. Eckert (1893), 50 Ohio St. 31, 33 N.E. 294. Nevertheless, as set forth in Van Fossen, supra, 36 Ohio St.3d at 106, 522 N.E.2d at 496:
"* * * `* * * Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective or retroactive.' Cincinnati v. Seasongood (1889), 46 Ohio St. 296, 303, 21 N.E. 630, 633, citing Society for the Propagation of the Gospel v. Wheeler [(1814), 22 F.Cas. 756 (No. 13,156)], supra, at 767."
Turning now to those considerations presented by defendant's motion, the law is clear that a cause of action which has accrued is a vested and substantial property right. Smith v. New York Central RR. Co. (1930), 122 Ohio St. 45, 170 N.E. 637; Pickering v. Peskind (1930), 43 Ohio App. 401, 12 Ohio Law Abs. 312, 183 N.E. 301. After the cause of action has accrued, it can neither be taken away nor diminished. State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537, 8 O.O. 531, 9 N.E.2d 505.
A cause of action accrues when the claim or right on which it is founded has matured so that an action can be brought upon it. This is usually completed at the moment when the wrong done by the defendant produces the injury to the plaintiff. Minster Loan Sav. Co. v. Laufersweiler (1940), 67 Ohio App. 375, 21 O.O. 326, 36 N.E.2d 895; Kerns v. Schoonmaker (1831), 4 Ohio 331; Squire v. Guardian Trust Co. (1947), 79 Ohio App. 371, 47 Ohio Law Abs. 203, 35 O.O. 144, 72 N.E.2d 137. Accordingly, plaintiff's cause of action fully accrued to it on December 4, 1987, which is the date upon which defendant's tree allegedly fell upon the automobile of plaintiff's insured. As previously mentioned, this date was well before the effective date of the amendment to R.C. 2743.10(A).
Having concluded that the cause of action accrued to plaintiff before the effective date of the amendment, it must now be considered whether the statutory amendment substantively diminishes plaintiff's cause of action. More specifically, it must be considered whether the substitution of an administrative determination and limited appeal for a full trial and appeal to all higher courts constitutes such a substantive change as to come within the ban against retroactive laws set forth in the Constitution.
Upon this point, it has long been established that a statute or an amendment thereto may have an operation on preexisting rights and liabilities yet not constitute a forbidden retroactive law. Trustees of Green Twp. v. Campbell (1864), 16 Ohio St. 11, 17. It is particularly true in Ohio that the "legislative power of the state has complete control over the remedies which shall be afforded to parties in the courts of the state * * *." Templeton v. Kraner (1874), 24 Ohio St. 554, 563, and cases cited at 563-564.
In State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 605-606, 60 O.O. 531, 537-538, 138 N.E.2d 660, 666-667, it was stated that:
"`* * * it is a fundamental principle of law that an individual may not acquire a vested right in a remedy or any part of it, that is, there is no right in a particular remedy * * *. A party has no vested right in the forms of administering justice that precludes the Legislature from altering or modifying them and better adapting them to effect their end and objects. * * *'" (Emphasis added.)
By reference to the "forms of administering justice," the court was referring to those provisions which relate to the "how, when and in what company such rights shall be determined." Id. at 606, 60 O.O. at 538, 138 N.E.2d at 667, fn. 5. Thus, the General Assembly may amend a statute so as to effect changes in such forms, even if additional burdens are thereby imposed, yet not affect any vested rights. Id.
That the General Assembly may change the mode of hearing without affecting one's vested right in his cause of action is further clarified by pronouncements in Rouse v. Chappell (1875), 26 Ohio St. 306, wherein it is stated at 309 that "statutes which merely affect the manner of trying or conducting an action are remedial in their character, and apply as well to cases pending and causes of action existing at the time they take effect as to future cases and causes of action * * *."
As to the appellate rights, it is observed that no right to appeal arises, accrues or vests until one first receives an adverse judgment from a court. Furthermore, a statute affecting the right to appeal is likewise a remedial change in the law and also takes effect on the effective date of the statute. State, ex rel. Slaughter, v. Indus. Comm., supra.
In conclusion, the prospective application of R.C. 2743.10 to those claims accrued before but filed after its effective date does not work a retroactive effect upon any accrued substantive right that would violate Section 28, Article II of the Ohio Constitution. The amendment of R.C. 2743.10 in no way affects the cause of action, but only the remedy for it. Furthermore, the amended version would naturally apply to all cases filed after its effective date. Accordingly, defendant's motion is found to be well taken and is hereby GRANTED.
Motion granted.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.