Reese v. Ohio State University Hospitals

451 N.E.2d 1196, 6 Ohio St. 3d 162, 6 Ohio B. 221, 1983 Ohio LEXIS 797

• Court: Ohio Supreme Court
• Decided: August 10, 1983
• Docket: No. 82-1618
• Status: Published

Opinions

William B. Brown, J.

The issue presented to this court is whether R.C. 2305.19, the so-called savings statute, is applicable to actions maintained in the Court of Claims. This court now answers that question in the affirmative.

R.C. 2743.16 provides:

“Civil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties. The period of limitations shall be tolled pursuant to section 2305.16 of the Revised Code, except there shall be no tolling during imprisonment unless the imprisoned person is of unsound mind.”

There is nothing in this section prohibiting the refiling of an action which was originally commenced within the time prescribed. R.C. 2743.16 is a true statute of limitations restricting the time within which a remedy may be pursued. R.C. 2743.16 does not expressly purport to provide for the situation where a timely filed action has been dismissed without prejudice after the expiration of the time set forth in that section.

On the other hand, R.C. 2305.19 fills this void. This section provides, in pertinent part, as follows:

“In an action commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * *”

This statute, the savings statute, is not a statute of limitations. Neither is R.C. 2305.19 a tolling statute extending the period of a statute of limitations. R.C. 2305.19 can have no application unless an action was timely commenced, was dismissed without prejudice, and the applicable statute of limitations had expired by the time of such dismissal. Thus, the court of appeals was correct in its conclusion that no conflict exists between R.C. 2743.16 and 2305.19. The two cannot be applied at the same time since each is dependent upon different circumstances.

Appellant argues that the Court of Claims Act did not create a new cause of action but did create a new right of action against the state. Prior to the Act, citizens may have had circumstances which would have given rise to a cause of action but had no right of action because of the doctrine of sovereign immunity. Appellant asserts that immunity did not merely bar the remedy, it barred the action altogether. Additionally, appellant argues that R.C. 2743.16 is a specific limitation on the right of action and not merely a defense to a cause of action, and that this specific time limitation is not subject to extension for any reason and not subject to any general savings statute such as R.C. 2305.19. The effect of appellant’s arguments would be that a dismissal of an action without prejudice after expiration of the limitation period of R.C. 2743.16 has the same effect as a determination upon the merits and bars the bringing of any further action with respect to the same claim. This was not the result intended by the General Assembly when it enacted these statutory provisions.

The Court of Claims Act, R.C. 2743.01 et seq., allows the state to be sued; it is not the source of substantive rights. Therefore, the Act does not create new rights or causes of action but, rather, creates only a remedy. See Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31 [21 O.O.3d 19], paragraph one of the syllabus. As this court indicated in McCord v. Division of Parks and Recreation (1978), 54 Ohio St. 2d 72, 74 [8 O.O.3d 77], “R.C. 2743.02 (A) does not create a new right of action against the state, but places the state upon the same level as any private party.” The language of R.C. 2743.02 (A)(1) itself negates the creation of a new right. Instead, it states, in pertinent part:

“The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties * * *.”

Thus, the Court of Claims Act merely places the state upon the same footing as private parties, subject to the limitations within the Act. R.C. 2743.16, as a statute of limitations, is a time limitation upon a remedy, not a limitation upon a substantive right created by statute. Under R.C. 2743.02 (A) the Court of Claims is duty bound to apply the same rules of law and procedure in cases where the state is a defendant as other courts apply those rules where private parties are the defendants. R.C. 2305.19 is one of those rules applicable to suits between private parties. Consequently, unless some provision of R.C. Chapter 2743 provides otherwise, the savings statute is applicable to suits against the state in the Court of Claims. There is no such exclusion in R.C. Chapter 2743. As previously noted, R.C. 2743.16 is aimed at a situation different from that to which R.C. 2305.19 applies.

Where an action was commenced within the time prescribed by R.C. 2743.16 and dismissed without prejudice after the expiration of that time, R.C. 2305.19 is applicable to suits against the state in the Court of Claims. That is precisely what occurred in the present case. Therefore, the Court of Claims erred in failing to apply R.C. 2305.19 to this action. For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. Locher and Holmes, JJ., dissent.