savings statute “is not a statute of limitations. Neither is R.C. 2305.19 is a tolling statute extending the period of a statute of limitations.”
How later courts described this case
- savings statute “is not a statute of limitations. Neither is R.C. 2305.19 is 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.”
Written by the judges who cited it.
The opinion
Locher, J.,
dissenting. Although I share the sentiments expressed in Justice Holmes’ carefully crafted and well-reasoned dissenting opinion, I wish to make several additional observations.
Contrary to the majority’s contention, the Court of Claims Act does create a new right, not merely a novel remedy for a pre-existing right of action. Where, before the enactment of R.C. 2743.01 et seq., a party aggrieved by the state could not recover for his injuries, upon its passage an avenue for redress was immediately opened to him. Clearly, no meaningful right of action can be said to exist where that right is not accompanied by a privilege to secure relief for the unlawful act. Such was, however, the unfortunate lot of a *165 party suffering damage as a result of state action before R.C. 2743.01 et seq. became operative.
The majority’s assertion that a right of action against the state had been in existence prior to enactment of the Court of Claims Act must be rejected. Section 16, Article I of the Ohio Constitution was amended in 1912 to provide that: “Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” However, as the constitutional provision is not self-executing, 1 no mode or redress had been “provided by law,” until the passage of R.C. 2743.01 et seq., and, thus, no remedy against the state was then extant.
In another attempt to buttress its argument that the Court of Claims Act only creates a new remedy, the majority quotes part of R.C. 2743.02 (A)(1) which delineates the scope of the state’s consent to have its liability determined by the same rules of law that govern actions between private parties. The cited provision lends no support to the position adopted by the court today. Moreover, the majority, not surprisingly, quotes only part of the subject statute, omitting the critically important qualifying phrase, “* * * except that the determination of liability is subject to the limitations set forth in this chapter * * R.C. 2743.16 explicitly circumscribes the applicability of the rules of law that ordinarily adhere in actions involving private parties by providing that the limitations period for Court of Claims actions may only be tolled pursuant to R.C. 2305.16. No provision is made for the operation of the savings clause embodied in R.C. 2305.19 relative to such actions. Thus, it cannot reasonably be said that the General Assembly in enacting R.C. 2743.01 et seq. either created a new right or intended R.C. 2305.19 to be applicable to causes arising under the Court of Claims Act.
On the basis of the foregoing, I respectfully dissent.
This court long ago held that the provision added by the amendment to Section 16, Article I of the Ohio Constitution in 1912 was not self-executing. See Raudabaugh v. State (1917), 96 Ohio St. 513 , overruled in part on other grounds in Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31 [ 21 O.O.3d 19 ].