Jacobs v. Shelly & Sands, Inc.
| Decision Date | 16 November 1976 |
| Citation | 51 Ohio App.2d 44,365 N.E.2d 1259,5 O.O.3d 165 |
| Parties | , 5 O.O.3d 165 JACOBS et al., Appellees, v. SHELLY & SANDS, INC., Appellant, The State of Ohio, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
The provisions of C.C.R. 4(B) pertaining to the time for filing a petition for the removal of an action from another court to the Court of Claims takes precedence over the time limitation in R.C. 2743.03(E)(1).
Fultz & Knight and Crow, Crow & Porter, Pomeroy, for appellees Pearl Jacobs et al.
Graham & Graham, Thomas R. Bopeley and A. Alan Mitchell, Zanesville, for appellant.
William J. Brown, Atty. Gen., and Paul C. Koscik, Cuyahoga Falls, for appellee the State of Ohio.
On December 4, 1975, plaintiffs Pearl Jacobs et al. filed a complaint in the Meigs County Court of Common Pleas naming Shelly & Sands, Inc., as defendant. On February 28, 1976, Shelly & Sands, Inc., filed an answer in that court.
On March 13, 1976, Shelly & Sands filed a third-party complaint naming the Department of Transportation of Ohio as third-party defendant. On March 30, 1976, Shelly & Sands, Inc., filed a petition for removal in the Court of Claims. Copies of the petition for removal were served upon the attorney for plaintiffs, the Attorney General of Ohio, the Court of Claims defense section, and the Clerk of the Court of Common Pleas of Meigs County. The Attorney General filed a motion to dismiss the petition for removal, and such was sustained by the Court of Claims.
From the judgment of the trial court, a timely notice of appeal has been filed, setting forth the following assignment of error:
"The Court of Claims erred in dismissing the petition for removal."
R.C. 2743.03(E)(1) provides, in pertinent part, as follows:
If R.C. 2743.03(E)(1) provides the exclusive and mandatory time period for filing a petition for removal in the Court of Claims, the judgment of the trial court is correct as the petition for removal was not filed until seventeen days after service of the original answer.
However, the Ohio Supreme Court has promulgated rules for the Court of Claims, which became effective July 1, 1975, C.C.R. 4(B) states as follows:
That appellant's petition for removal was timely if C.C.R. 4(B) is valid.
The Supreme Court promulgated the Court of Claims rules pursuant to the authority of Section 5(B), Article IV, of the Ohio Constitution, which provides as follows:
* * * "
Appellant argues that the time specified for filing a petition for removal is procedural rather than substantive and is thus controlled by the Court of Claims rule promulgated pursuant to Section 5(B), Article IV, of the Ohio Constitution. Appellee contends that the time period specified in R.C. 2743.03(E)(1) is substantive and, hence, may not be modified by a Supreme Court rule of practice.
The Ohio Supreme Court defined substantive and procedural, as those words relate to Section 5(B), Article IV, as follows:
Krause, Admr. v. State (1972), 31 Ohio St.2d 132, 145, 285 N.E.2d 736, 744.
Clearly, the provision in R.C. 2743.03(E)(1) providing for the time for filing a petition for removal is procedural as it pertains to the method of enforcing rights or obtaining redress rather than creating, defining or regulating the rights of the parties.
R.C. 2743.02 is the basic substantive provision in the Court of claims Act, since it provides for a waiver of immunity by the state. R.C. 2743.06 provides for the time of accrual of causes of action in the nature of a statute of limitations which is substantive in nature.
Indicative of the fact that the time for filing a petition for removal is not a statute of limitation is the fact that the time may be extended pursuant to the Rules of Civil Procedure. R.C. 2743.03(D) provides as follows:
There is no provision for an extension of time for filing a petition for removal set forth in R.C. Chapter 2743. Thus, Civ.R. 6(B) applies and permits an extension of time therefor under circumstances and procedures set forth therein.
A further argument is made that Section 16, Article I, of the Ohio Constitution prohibits the Ohio Supreme Court from providing procedures for suits against the state. Section 16 provides, in part as follows:
"Suits may be brought against the state, in such courts and in such manner, as may be provided by law."
In Krause, the Supreme Court properly held that the...
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