COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69578 : ACCELERATED DOCKET CINCINNATI INSURANCE CO. : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JIMMIE POPE, JR., et al : : Defendants-Appellants : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MAY 16, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Lyndhurst Municipal Court : Case No. 94 CVE 1632 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: PATRICK S. CORRIGAN Attorney at Law 333 Leader Building Cleveland, Ohio 44114 For defendant-appellants: JOHN W. BOSCO Attorney at Law 28001 Chagrin Boulevard Suite 300 Cleveland, Ohio 44122 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Defendants Rita Zirpel Pope and Jimmie Pope, Jr. appeal from the judgment of the Lyndhurst Municipal Court in favor of plain- tiff Cincinnati Insurance Co. in plaintiff's action for subroga- tion. For the reasons set forth below, we reverse and remand for further proceedings. On October 26, 1994, plaintiff filed this subrogation action against defendant Rita Zirpel Pope, seeking recovery of $4,855 which it paid to its insured, Rosemary Bumbak, following a colli- sion involving Bumbak's vehicle and a vehicle operated by Pope. Pope and her husband, in turn, filed a cross claim and third- party complaint against Bumbak for negligent entrustment and against Anne Bumbak, driver of the vehicle, for negligence. Cincinnati Insurance and the Bumbaks submitted an answer in which they demanded a jury trial in the matter and endorsed the jury demand in the caption of that pleading. The matter proceeded to hearing before a referee on June 30, 1995. At this time, the attorney for the Popes stated that - 3 - plaintiff had demanded a jury trial, that he had relied upon that demand and that none of the parties had waived a jury trial in this matter. The referee determined that there was no standing order for a jury, however, and he proceeded to hear the matter on its merits. For its case, Cincinnati Insurance Co. presented the testi- mony of Anne and Rosemary Bumbak and its insurance adjuster, John Spellacy. Anne Bumbak testified that on January 29, 1994, she was operating her mother's car in the right lane of Richmond Road toward Mayfield Road and her mother was a passenger in the car. She applied her brakes as the light at the intersection turned red. The vehicle slid to the right, into the curb, then came to a stop approximately one and one-half car lengths from the inter- section. Less than five seconds later, the vehicle was struck by Popes' vehicle. Rosemary Bumbak testified that she received medical treatment following the collision. Thereafter, she received $1,000 from Cincinnati Ins. for her medical expenses and personal injuries. John Spellacy stated that Cincinnati Ins. paid Bumbak $3,675 for damage to her vehicle, plus $180 for Bumbak's use of a rental car, but later received $227 in salvage value for the vehicle. For their case, the Popes presented the testimony of Rita Zirpel Pope. Pope stated that Bumbak's vehicle had been traveling in front of her vehicle in the curb lane and had been - 4 - driving slowly because of icy conditions. She also saw Bumbak's brake lights when she commenced her stop. Pope concurred with Bumbak's description of the manner in which the accident occurred and with Bumbak's description of her location in relation to the traffic signal. Pope maintained, however, that she had no opportunity to avoid the collision. Finally, Jimmie Pope, Jr. testified that he is the owner of the vehicle and that he obtained a repair estimate in the amount of $1,221.84. In his opinion, however, the damages directly attributable to the collision totalled only $1,000.00. The referee subsequently made the following findings of fact and conclusions of law: FACT * * * 2. On January 29, 1994, defendant Rita Pope was operating an auto owned by her hus- band south bound in the curb lane on Richmond Road behind an auto also oper- ated south bound in the curb lane by Anne Bumbak near the intersection of Mayfield Road. 3. Rosemary Pope [sic] was a passenger in the auto being operated at the time by Anne Bumbak. 4. Anne Bumbak brought the auto she was operating to a stop in obedience to a traffic signal when the auto she was operating was struck from the rear by defendant Rita Pope. * * * 9. The court finds that the defendant, Rita Pope, was 100% negligent in the opera- tion of the auto owned by Jimmie Pope - 5 - and that such negligence was the sole and proximate cause of the damages claimed by plaintiff. LAW 1. A violation of the assured clear dis- tance statute R.C. 4511.21 constitutes negligence as matter of law. 2. A party cannot be considered to be ex- cused from the operation of the statute by the doctrine of sudden emergence or contributory negligence when the lead auto remains in the same lane of travel ahead of the violating driver. The referee then recommended that the trial court enter judgment in favor of Cincinnati Ins. and against the Popes in the amount of $4,628.00. The Popes filed objections to the report of the referee on August 14, 1995, and complained, inter alia, that they were en- titled to a jury trial, pursuant to Civ.R. 39(A)(1). On August 31, 1995, the trial court overruled the objections and concluded: The parties effectively waived the jury demand for same which was endorsed on the plaintiff's answer to the cross claims of the new party plaintiffs. Plaintiff failed to pay the required filing fee for a jury and plaintiff and defendant attended the pretrial and trial before the magistrate in this court and submitted to the determination of facts by the said court official without complying with the rules of this court, regarding jury demands in civil cases i.e. $15.00 filing fee - $200.00 jury deposit. The court then entered judgment in favor of Cincinnati Ins. and against the Popes in the amount of $4,628.00. The Popes now appeal and assign three errors for our review. - 6 - I. Appellants' first assignment of error states: THE TRIAL COURT ERRED IN ADOPTING THE MAGIS- TRATE'S REPORT BECAUSE ONCE A PARTY CHOOSES TO ENDORSE A DEMAND FOR TRIAL BY JURY, ALL PARTIES ARE THEN ENTITLED TO A TRIAL BY JURY UNLESS THEY COLLECTIVELY CHOOSE TO WAIVE THAT RIGHT. Civ.R. 38(B) provides in relevant part as follows: Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand shall be in writing and may be indorsed [sic] upon a pleading of the party. If the demand is endorsed upon a pleading the caption of the pleading shall state "jury demand endorsed hereon." *** Civ.R. 39(A), in turn, states in relevant part as follows: When trial by jury has been demanded as pro- vided in Rule 38, the action shall be desig- nated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attor- neys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, con- sent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. *** Together, these rules provide that where there has been a viable jury demand, and no effective waiver of the right to a jury, trial shall be by jury in all cases triable of right by a - 7 - jury unless the parties, by written stipulation or by oral stipu- lation made in open court and recorded, consent to trial by the court sitting without a jury. Cincinnati Ins. Co. v. Gray (1982), 7 Ohio App.3d 374, 377. A silent record, moreover, means that a previously-demanded right to a jury trial is still in effect and is not waived. Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App. 3d 101, 104. In this instance, Cincinnati Ins. and the third-party defen- dants filed a joint answer to the third-party complaint, which contained a jury demand. The jury demand was in full compliance with Civ.R. 38. Moreover, the parties did not, by recorded stipulation or in any other manner, waive the right to a jury trial, and there was no determination that the matter was not triable to a jury. The trial court determined, however, that the jury demand was waived since plaintiff did not pay the $15 filing fee and $200 jury deposit. In Walters & Associates v. Griffith (1974), 38 Ohio St.2d 132, the supreme court evaluated a local rule of the Franklin County Municipal Court which required an advance jury deposit of $10 and a supplemental rule which stated that "the failure of a party to advance the security costs within ten (10) days after filing the jury demand *** shall constitute a waiver of trial by jury." The court stated: Although there may not constitutionally be any impairment or denial of the right of trial by jury, that right may be subject to moderate and reasonable regulation. *** - 8 - In the instant case, *** [t]he Municipal Court is a local court, with local rules of general and uniform operation within its spe- cial jurisdiction. The rule involved here is likewise a moderate and reasonable regulation of the right of trial by jury, and is not an impairment of that right. The rule is not a violation of the constitutional guarantee of either the Ohio or the United States Consti- tution. Defendant asserts further that Rule 3 is a violation of Civ.R. 38(B), which provides for a jury demand and the manner in which it may be exercised. However, the added requirement for an advance deposit to secure costs of a jury trial is not in opposition, but is sup- plementary, to Civ.R. 38(B), and hence con- stitutes a valid rule of court under Civ.R. 38. It is not inconsistent with the basic civil rule. Id. at 133-134. Cf. Teague v. Wiand (1986), 28 Ohio App.3d 48, 49 (construing Loc.R. 6.05 of the Franklin County Municipal Court, which provided that failure to advance security for jury costs "within ten days after filing the jury demand required by Civ.R. 38[B] shall constitute a waiver of trial by jury"). This matter, however, is distinguishable from Walters & Associates v. Griffith, supra. In this instance, the Rules of Court for the Lyndhurst Municipal Court do not require that an advance cost accompany a jury demand and do not provide that failure to advance jury costs in connection with the jury demand shall constitute a waiver of the right to a jury trial. The rules contain a detailed Jury Management Plan, which outlines matters such as eligibility for jury service, peremptory challenges and jury deliberations and sequestration, but there is no local rule of court which supplements the requirements of - 9 - Civ.R. 38 or Civ.R. 39 or puts the litigants on notice that their right to trial by jury is being regulated by the court. Specifically, litigants are not given notice that the costs are to be secured in advance by the party demanding the jury and that the jury trial will be deemed to be waived where such advance payment is not made. There is simply no mention of any additional requirements for obtaining a jury trial within the local rules. Costs are listed in a separate schedule contained within a standing order of the court, and the time for payment is not indicated. The standing order is posted and is neither appended to nor incorporated within the local rules and cannot be deemed to supplement the local rules. We therefore hold that the local rules do not put the litigants on notice that there are any additional steps which must be taken in order to preserve their right to a jury trial and do not provide for moderate or reasonable regulation of the right to jury trial. Thus, since waiver of the constitutional right of trial by jury may not be implied, it will not be upheld under these circumstances, and the finding of waiver is therefore an unconstitutional impairment of the right to trial by jury. In accordance with the foregoing, a viable jury demand was made, there was no effective waiver of the demand and the demand remained in effect when the evidentiary hearing commenced. The first assignment of error is therefore well taken. The judgment of the trial court is vacated, and the matter is remanded for further proceedings consistent with this opinion. - 10 - II. Defendants' second and third assignments of error state: THE TRIAL COURT ERRED IN ADOPTING THE MAGIS- TRATE'S REPORT BECAUSE APPELLEE'S FAILURE TO SURRENDER THE ASSIGNMENT SUBROGATION AGREE- MENT AS REQUESTED BY THE APPELLANT, CAUSED THE APPELLANT PREJUDICIAL ERROR. THE TRIAL COURT ERRED IN ADOPTING THE MAGIS- TRATE'S REPORT BECAUSE THE MANIFEST WEIGHT OF THE EVIDENCE DOES NOT SUPPORT THE MAGIS- TRATE'S CONCLUSIONS. A. THAT THE AUTOMOBILE COLLISION IN QUESTION WAS A REAR END COLLISION; AND B. THAT RITA POPE WAS NEGLIGENT WITH RESPECT TO THE ASSURED CLEAR DISTANCE STATUTE, O.R.C. 4511.21. In that we have determined that the first assignment of error is well taken and that the matter must be retried, these assignments of error are moot, and we will not address them here- in. App.R. 12(A)(1)(c); Newark Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 125. Reversed and remanded for further proceedings consistent with this opinion. - 11 - This cause is reversed and remanded to the lower court for further proceedings consistent with this Opinion. It is ordered that appellants recover of appellee their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lyndhurst Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE ANN DYKE, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .