Opinion
No. 80-468
Decided June 25, 1980.
Mandamus — Writ not allowed, when — For payments from appropriation bill — A liability created by statute — Six-year limitation applicable — R.C. 2305.07.
APPEAL from the Court of Appeals for Franklin County.
Appellants, during the applicable time period, were the owners and operators of licensed nursing homes in Ohio. On December 10, 1971, the General Assembly passed Am. Sub. H.B. No. 475 (1971 bill), appropriating funds to the Ohio Department of Public Welfare (ODPW) for payment to nursing homes for vendor nursing home care. The 1971 bill became effective on December 20, 1971. While the ODPW prepared for the implementation of the 1971 bill, payment to the nursing homes was continued at the pre-1971 bill rates. The new rates were not implemented until after June 29, 1972. Appellants have not been paid under the new rates for the period prior to June 29, 1972.
Six nursing homes were reimbursed for the entire calendar year 1972 pursuant to a judgment entered by the Court of Common Pleas of Hamilton County in Three Rivers Convalescent Center, Inc., v. Bates, case No. A-733864, October 5, 1976, which judgment was affirmed by the Court of Appeals for Hamilton County in case No. C-76787, March 29, 1978, unreported.
On July 31, 1979, appellants filed a mandamus action in the Court of Appeals for Franklin County against the Director of Public Welfare, Kenneth B. Creasy, the Auditor of State, Thomas E. Ferguson, and the Director of Administrative Services, William W. Wilkins. Appellants' action, brought as a class action, requested a writ of mandamus to order appellees to reimburse appellants and other class members according to the new rates in the 1971 bill for all of 1972. The Court of Appeals denied the writ on the basis that the action was barred by the R.C. 2305.07 statute of limitations. Further, the court rejected appellants' argument that they were denied equal protection of the law because of the payment to the six nursing homes as a result of the Three Rivers, supra, litigation.
The parties to this action stipulated that this action is brought by relators as a class action. But, we note that Civ. R. 23 provides the appropriate methodology for determining and maintaining a class action. There is no provision in Civ. R. 23 for the stipulation of a class action by the parties to that action.
The cause is now before this court on an appeal as of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Mr. Rankin M. Gibson and Mr. W. Joseph Strapp, for appellants.
Mr. William J. Brown, attorney general, Mr. Thomas W. Hess, Mr. William J. McDonald and Mr. George E. Lord, for appellees.
R.C. 2305.07 provides: "Except as provided in section 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." (Emphasis added.) The 1971 bill is a liability created by statute and, as such, is subject to the above six year statute of limitations.
Appellants' right to the new rates under the 1971 bill derives solely from the appropriation bill. Thus, appellants' equal protection argument, premised on the diligence of the six nursing homes who brought a timely action, is without merit.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.