Cox v. Ohio Dept. of Transp.

• Decision Date: 12 August 1981
• Docket Number: Nos. 80-1328,80-1458 and 80-1491,s. 80-1328
• Citation: 424 N.E.2d 597,67 Ohio St.2d 501,21 O.O.3d 313
• Parties: , 21 O.O.3d 313 COX, Appellee, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant. STEELE, Executor, Appellee, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant. COLBERT et al., Appellees, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Ohio Supreme Court

Page 501

67 Ohio St.2d 501

424 N.E.2d 597, 21 O.O.3d 313

COX, Appellee, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.

STEELE, Executor, Appellee, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.

COLBERT et al., Appellees, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellant.

Nos. 80-1328, 80-1458 and 80-1491.

Supreme Court of Ohio.

Aug. 12, 1981.

Michael F. Colley Co., L.P.A., and Michael F. Colley, Paul L. Beach and Frank Ray, Columbus, for appellees Cox and Steele.

Wolske & Blue and Richard C. Blower, Columbus, for appellees Colbert et al.

William J. Brown, Atty. Gen., Steven L. Gardner and Thomas E. Turk, Asst. Attys. Gen., for appellant.

PER CURIAM.

The Court of Appeals based its reversal of the Court of Claims in each of the cases sub judice on different grounds. We shall review the various pronouncements of the lower court to determine whether any of the rationales propounded below construing R.C. 2743.16 is correct.

Case No. 80-1328

The preliminary question in No. 80-1328, the Cox case, concerns whether the 180-day filing requirement imposed by former R.C. 2743.16(A) was a true statute of limitations. Appellee argues that the applicable statute of limitations under the former R.C. 2743.16 was actually two years by virtue of R.C. 2743.16(D). R.C. 2743.16(D) permitted the Court of Claims, at its discretion, to waive the 180-day requirement if a claimant demonstrated (1) that the state had notice of the claim within 180 days of its accrual, and (2) that he had good cause for the tardy filing.

The inclusion of this notice and good cause exception to the 180-day rule led the Court of Appeals to conclude that "paragraph (D) of R.C. 2743.16 presents a situation that is different than the normal statute of limitations * * *; in other words because of paragraph (D), the cause of action was not completely barred * * *." According to this view, the 180-day requirement was not a statute of limitations at all but, instead, amounted to little more than a procedural desideratum expressing a legislative preference for filing within 180 days but posing no absolute bar to actions filed subsequent to the running of the 180-day period.

We reject this interpretation of the effect of the 180-day filing deadline established in former R.C. 2743.16. R.C. 2743.16(A) did impose a conventional statute of limitations on certain categories of claims subject only to the notice within 180 days and good cause exceptions under R.C. 2743.16(D). Absent a showing of notice and good cause before the Court of Claims, a plaintiff filing a claim after the 180-day period expired would be barred because the cause of action was extinguished by the running of the applicable statute of limitations.

In the instant case it is uncontroverted that the claim was filed well after the 180-day period had ended. Moreover, there is nothing in the record to indicate that the appellee could have invoked the notice and good cause provisions of R.C. 2743.16(D), which would have raised the possibility of having the case heard notwithstanding the late filing. Under these circumstances, therefore, it was error for the Court of Appeals to have reversed the order of the Court of Claims dismissing the case. The cause of action was barred because appellee had failed to file timely or avail herself of the specific statutory saving provisions then in effect.

Appellee may not invoke the amended version of R.C. 2743.16 to breathe new life into her cause of action because her claim has already been extinguished by operation of the former statute of limitations. Thus, on February 7, 1979, the effective date of amended R.C. 2743.16, the appellee no longer had a viable cause of action. Appellant's first proposition of law, which appellee did not contest, states the applicable rule:

"Where the time for commencing an action has expired due to the running of the statute of limitations, an amendment lengthening the statute of limitations, which is effective after the period of limitations has run, does not revive the cause of action * * *."

See Peters v. McWilliams (1880), 36 Ohio St. 155; Baker v. Farish (1964), 1 Ohio Misc. 1, 202 N.E.2d 331. See, also, 34 Ohio Jurisprudence 2d 492, Section B.

The Court of Appeals acknowledged that a "barred * * * cause of action is not revived by a subsequent statute extending the time for bringing such actions." The court erred, however, in categorizing R.C. 2743.16(A) as something other than a statute of limitations so as to avoid the aforestated rule regarding previously barred claims.

What the Court of Appeals managed to do, in essence, was to give retroactive effect to the amended version of R.C. 2743.16. Such retrospective application of the amended statute contravenes the general provisions set forth in R.C. 1.48 and 1.58, as well as the specific legislative mandate expressed in Am.Sub.H.B.No.149.

R.C. 1.48 provides as follows:

"A statute is presumed to be prospective in its operation unless expressly made retrospective."

R.C. 1.58 provides in pertinent part:

"(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:

"(1) Affect the prior operation of the statute or any prior action taken thereunder;"

"(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded or incurred thereunder; * * * "

Am.Sub.H.B.No.149, which became effective on February 7, 1978, provided, in Section 3, that:

"The effective date of Section 2743.16 of the Revised Code, as amended by this act, including its effect upon division (D) of subsection 2743.09 of the Revised Code is one year after the effective date of this act."

In light of these clear legislative pronouncements, the Court of Appeals exceeded its authority when it indirectly applied the amended statute retroactively thereby reinstating appellee's extinguished cause of action.

Appellant's second proposition of law raises a constitutional question. However, "pursuant to the established practice of this court, we do not reach, nor do we decide, the constitutional issues arguably presented herein, as resolution of those issues upon the record before us, and in the specific factual context of this cause, is not essential to the disposition we reach." McClung v. Bd. of Edn. (1976), 46 Ohio St.2d 149, 154, 346 N.E.2d 691. See, also, Kent v. Kelley (1975), 44 Ohio St.2d 43, 337 N.E.2d 788; Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 267 N.E.2d 802; State v. Western Union Telegraph Co. (1951), 154 Ohio St. 511, 97 N.E.2d 2; State, ex rel. Lieux v. Westlake (1951), 154 Ohio St. 412, 96 N.E.2d 414. Case No. 80-1458

In No. 80-1458, the Steele case, the Court of Appeals utilized a different analytical approach to reach the same result as it had in Cox. The court in Steele adopted the "hiatus theory" first posited by Judge Whiteside in his Cox concurrence. According to the Court of Appeals, "the new act (Am.Sub.H.B.No.149) by its express terms repealed Section 2 of the old R.C. 2743.16, effective February 7, 1978. The new act did not take effect until one year later. Therefore in the interim the general two year statute of limitations (R.C. 2305.10) applies to this case, inasmuch as the accident involved in this case took place during that interim period."

The appellant in this case and the amicus curiae, Ohio Legislative Service Commission, in a brief submitted in case No. 80-1328, strenuously argue that the Court of Appeals ignored settled principles of statutory construction when it determined that a hiatus of one year existed between the repeal of former R.C. 2743.16 and the effective date of the amended version of R.C. 2743.16. Appellant's position is that the repeal of the former R.C. 2743.16 did not become operative until the amended R.C. 2743.16 became effective on February 7, 1979. Consequently according to appellant, there never existed any interim, hiatus, gap or discontinuity in the operation of R.C. 2743.16 and therefore, it was error for the Court of Appeals to have applied R.C. 2305.10, the general two-year limitations provision, to this cause.

Venerable Ohio authority supports appellant's view of R.C. 2743.16. In McArthur v. Franklin (1865), 16 Ohio St. 193 at page 204, this court stated the following rule:

" 'Where the provisions of a revising statute are to take effect at a future period, and the statute contains a clause repealing the former statute upon the same subject, the repealing clause does not take effect until the other provisions of the repealing act come into operation.' "

See, also, Trustees of Canaan Twp. v. Bd. of Infirmary Directors (1889), 46 Ohio St. 694, 23 N.E. 492.

Modern commentators have endorsed the proposition that a repealer and the amendatory enactment take effect simultaneously unless the legislature expresses a contrary intention. "The power to enact laws includes the power to fix a future day on which the act will take effect. A statute with a definite future day fixed for its commencement has effect only from that time. A repealing clause of a statute which is to take effect in the future will not be effective until the statute itself is in operation." (Footnotes omitted.) 2 Sutherland, Statutory Construction (4 Ed.), 11, Section 33.07.

We find the applicable rule well-stated by the amicus, Legislative Service Commission:

"Where an act of the General Assembly amends an existing section of the Revised Code (R.C. 2743.16), postpones the effective date of the amended section for one year after the effective date of the act, and repeals the 'existing' section in a standard form of repealing clause used for many years by the General Assembly for the purpose of complying with Section 15(D) of Article II of the Constitution of Ohio, ³ the constitutionally mandated repealing clause must be construed to take effect upon the effective date of the amended section in order to prevent a hiatus in statutory law, during...