[Cite as Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-
1970.]




     EPPLEY, ADMR., APPELLEE, v. TRI-VALLEY LOCAL SCHOOL DISTRICT
                    BOARD OF EDUCATION, APPELLANT, ET AL.
           [Cite as Eppley v. Tri-Valley Local School Dist. Bd. of Edn.,
                        122 Ohio St.3d 56, 2009-Ohio-1970.]
Wrongful-death actions — R.C. 2125.04 — Saving statute — The saving statute
        for wrongful-death actions, R.C. 2125.04, does not violate the right to
        equal protection of the law under the Fourteenth Amendment to the United
        States Constitution and Section 2, Article I of the Ohio Constitution.
    (No. 2008-0366 — Submitted January 21, 2009 — Decided May 5, 2009.)
            APPEAL from the Court of Appeals for Muskingum County,
                          No. CT2007-0022, 2008-Ohio-32.
                                 __________________
                              SYLLABUS OF THE COURT
The saving statute for wrongful death actions, R.C. 2125.04, does not violate the
        right to equal protection of the law under the Fourteenth Amendment to
        the United States Constitution and Section 2, Article I of the Ohio
        Constitution.
                                 __________________
        LANZINGER, J.
        {¶ 1} In this case, we are asked to determine the constitutionality of R.C.
2125.04, the wrongful death saving statute. Because we hold that the statute does
not violate the right to equal protection of the law, we reverse the judgment of the
court of appeals insofar as it holds that the statute is unconstitutional.
                                 I. Case Background
        {¶ 2} Joshua M. Eppley, a student in the Tri-Valley Local School
District, died on November 26, 2003, in an accident while a passenger in a car
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driven by Corey W. Jenkins. Appellee, Randy J. Eppley, the administrator of
Joshua’s estate, initially filed a complaint on August 3, 2005, for wrongful death
against Tri-Valley Local School Board and Tri-Valley Local School District.1
Eppley dismissed the case without prejudice under Civ.R. 41(A)(1)(a) on
September 15, 2005. He refiled the case the following year on September 7.
        {¶ 3} The refiled complaint alleged that unnamed employees of the
school district engaged in willful, wanton, and reckless conduct by allowing
Corey to remove Joshua from school premises without the permission of Joshua’s
parents and that Joshua’s death was the result of that conduct. The school board
and the district filed a motion for judgment on the pleadings, arguing that the
statute of limitations had run on the complaint before refiling and that they were
immune from liability.
        {¶ 4} Eppley responded that the general saving statute, R.C. 2305.19,
rather than the wrongful death saving statute, R.C. 2125.04, applied to the refiled
action. He argued in the alternative that R.C. 2125.04 violated his right to equal
protection under the Fourteenth Amendment to the United States Constitution and
Section 2, Article I of the Ohio Constitution. The trial court dismissed the
complaint with prejudice under Civ.R. 12 but did not state a reason for the
dismissal.
        {¶ 5} Eppley appealed, and the Fifth District Court of Appeals reversed
the judgment. It held, inter alia, that R.C. 2125.04 violates the right to equal
protection because there is no legitimate state interest to which the wrongful death
saving statute is rationally related. Eppley v. Tri-Valley Local School Dist., 5th
Dist. No. CT2007-0022, 2008-Ohio-32, ¶ 38. We accepted the discretionary




1. The complaint also named as defendants John Does 1 through 5. Since John Does 1 through 5
have not been served with a complaint, we need not treat them as parties in this appeal.




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appeal of the school board2 on whether R.C. 2125.04 denies wrongful death
claimants the equal protection of the law.
                                      II. Legal Analysis
                 A. The Saving Statutes, R.C. 2305.19(A) and 2125.04
        {¶ 6} The parties have raised two statutes as potentially applicable. The
first, the general saving statute relied upon by appellee and the court of appeals,
states: “In any action that is commenced or attempted to be commenced, if in due
time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than
upon the merits, the plaintiff or, if the plaintiff dies and the cause of action
survives, the plaintiff’s representative may commence a new action within one
year after the date of the reversal of the judgment or the plaintiff’s failure
otherwise than upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.” (Emphasis added.) R.C. 2305.19(A).
        {¶ 7} The second statute, specifically referring to wrongful death actions,
states: “In every civil action for wrongful death commenced or attempted to be
commenced within the time specified by division (D)(1) or (D)(2)(c), (d), (e), (f),
or (g) of section 2125.02 of the Revised Code, if a judgment for the plaintiff is
reversed or the plaintiff fails otherwise than upon the merits and if the time limited
by any of those divisions for the commencement of the action has expired at the
date of the reversal or failure, the plaintiff or, if the plaintiff dies and the cause of
action survives, the personal representative of the plaintiff may commence a new
civil action for wrongful death within one year after that date.”                     (Emphasis
added.) R.C. 2125.04.



2. The court of appeals held that the school district could not be sued. Eppley v. Tri-Valley Local
School Dist., 5th Dist. No. CT2007-0022, 2008-Ohio-32, ¶ 49. We denied appellee’s cross-
appeal, which also challenged the court of appeals’ judgment. Therefore, the school board is the
only appellant.




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        {¶ 8} As the Fifth District Court of Appeals observed, before 2000, both
statutes granted a plaintiff an additional year in which to refile an action
dismissed without prejudice only if dismissal occurred after the original statute of
limitations had run. Eppley, 2008-Ohio-32, at ¶ 16. Sometimes referred to as the
“malpractice trap,” this meant that a plaintiff whose case had been dismissed
without prejudice before the original statute of limitations had run was required to
refile the action within the original statutory time, regardless of how much time
was left. Id.
        {¶ 9} The General Assembly amended the general saving statute in 2004,
closing the malpractice trap and permitting a plaintiff to refile within one year
after dismissal or within the time remaining under the statute of limitations,
whichever is longer. Eppley, 2008-Ohio-32, at ¶ 17. The General Assembly,
however, did not similarly amend the saving statute pertaining to wrongful death
actions. Id. at ¶ 18. In making its determination that R.C. 2125.04, rather than
R.C. 2305.19, applies, the court of appeals noted that the specific statute takes
precedence over a general statute. Id. at ¶ 22. See State v. Volpe (1988), 38 Ohio
St.3d 191, 194, 527 N.E.2d 818.3
        {¶ 10} Since the wrongful death saving statute is the specific statute, R.C.
2125.04 applies, and the complaint was untimely filed.                   The fatal accident
occurred November 26, 2003, and the case was dismissed without prejudice on
September 15, 2005. Under R.C. 2125.04, Eppley’s refiling deadline was not
extended to September 15, 2006. Because the action was dismissed before the
two-year statute of limitations ran, Eppley still had only two years from the date
of the accident, until November 26, 2005, to bring suit. The question then is
whether R.C. 2125.04 violates the right to equal protection.


3. We declined jurisdiction over Eppley’s cross-appeal, which argued that R.C. 2305.19 is the
appropriate statute, and so we will proceed on the basis that the wrongful death saving statute,
R.C. 2125.04, applies.




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                             January Term, 2009




                       B. Constitutionality of R.C. 2125.04
       {¶ 11} The Fourteenth Amendment to the United States Constitution
provides that “[n]o State shall * * * deny to any person within its jurisdiction the
equal protection of the laws.” Ohio’s Equal Protection Clause in turn provides
that “[a]ll political power is inherent in the people. Government is instituted for
their equal protection and benefit * * *.” Section 2, Article I, Ohio Constitution.
We have held that the equal protection provisions of the Ohio and federal
Constitutions are functionally equivalent and require the same analysis. State v.
Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 11, citing Am.
Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999),
87 Ohio St.3d 55, 59, 717 N.E.2d 286.
       {¶ 12} We first recognize that statutes are presumed to be constitutional
and that courts have a duty to liberally construe statutes in order to save them
from constitutional infirmities. Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535,
538, 706 N.E.2d 323.
       {¶ 13} Because of the presumption of constitutionality, we must consider
the nature of rights that are claimed to be at issue, for these determine the nature
of our review. When challenging a statute on constitutional grounds, a party may
present a facial challenge to the statute as a whole or challenge the statute as
applied to a specific set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-
Ohio-5334, 836 N.E.2d 1165, ¶ 37; Belden v. Union Cent. Life Ins. Co. (1944),
143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629. See United States v. Salerno
(1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. The court of appeals
treated Eppley’s constitutional challenge as an as-applied challenge. Eppley at ¶
38. We agree. Eppley therefore has the burden of presenting a presently existing
state of facts that make the statute unconstitutional under the appropriate level of
scrutiny. See Belden, 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629.




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        {¶ 14} In an equal protection claim, government actions that affect
suspect classifications or fundamental interests are subject to strict scrutiny by the
courts. See Grutter v. Bollinger (2003), 539 U.S. 306, 326, 123 S.Ct. 2325, 156
L.Ed.2d 304; Washington v. Glucksberg (1997), 521 U.S. 702, 720-721, 117 S.Ct.
2258, 138 L.Ed.2d 772; see also Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124,
767 N.E.2d 251, at ¶ 13. A wrongful death action, however, does not implicate
either a suspect classification or a fundamental interest. See Keaton v. Ribbeck
(1979), 58 Ohio St.2d 443, 12 O.O.3d 375, 391 N.E.2d 307 (applying rational
basis review to a wrongful death statute).
        {¶ 15} Under the rational basis review, a statute that implicates neither a
fundamental right nor a suspect classification does not violate the Equal
Protection Clause if the statute is rationally related to a legitimate government
interest. Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d
181. We grant “substantial deference” to the judgment of the General Assembly
in a rational basis review. State v. Williams (2000), 88 Ohio St.3d 513, 531, 728
N.E.2d 342. Therefore, we must determine whether there is a legitimate reason to
treat a plaintiff who sues for wrongful death under R.C. 2125.04 differently from
any other plaintiff.
        {¶ 16} Eppley argued before the court of appeals that strict scrutiny is
appropriate because parents have a fundamental right to enjoy a loving
relationship with their children. However, R.C. 2125.04 does not implicate this
right because, on its face, it addresses only the right to refile a wrongful death
lawsuit. It does not address the parent-child relationship. Furthermore, an action
for wrongful death is governed solely by the terms of the wrongful death statute.
See Keaton, 58 Ohio St.2d at 446, 12 O.O.3d 375, 391 N.E.2d 307. Therefore, it
is not a fundamental right that merits strict scrutiny.
        {¶ 17} Eppley argues that there is no rational basis for the General
Assembly to extend the general saving statute in R.C. 2305.19 but not to do so in




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R.C. 2125.04 and that the different language is a drafting error. This argument is
speculative at best.   The General Assembly explained that it amended R.C.
2125.04, and other portions of the Revised Code, to further the state’s “rational
and legitimate * * * interest in making certain that Ohio has a fair, predictable
system of civil justice that preserves the right of those who have been harmed by
negligent behavior, while curbing the number of frivolous lawsuits.” Section
3(A)(3), Am.Sub.S.B. 80, 150 Ohio Laws, Part V, 7,915, 8,024. If a statute bears
a rational relationship to a government interest, our role is not to cross-check the
General Assembly’s findings to ensure that we would agree with its conclusions.
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
420, ¶ 58.
       {¶ 18} The school board suggests several differences between general tort
claims and wrongful death claims that provide a rational basis for a different
wrongful death saving statute. General tort claims are direct actions, while
wrongful death claims are derivative in nature, brought on behalf of the
decedent’s next of kin; wrongful death claims are statutory, while claims for
personal injury are common-law claims; the proceeds in wrongful death claims
are recovered for distribution to the beneficiaries designated under the statute of
descent and distribution, R.C. 2105.06, whereas personal injury awards are made
directly to the injured party; and although damages in general tort actions have
been limited by R.C. 2315.18, damages recoverable in wrongful death claims
cannot be limited. Section 19a, Article I, Ohio Constitution.
       {¶ 19} We find these last two differences to be persuasive. Resolving
claims expeditiously is a legitimate government interest.       Unlike the general
saving statute, the wrongful death saving statute prevents a plaintiff who has
dismissed his or her claim before the expiration of the initial statutory period from
refiling after expiration and thereby extinguishes the claim. The more restrictive
wrongful death saving statute prevents delaying the timely disbursement of the




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estate of the deceased when damages are recovered for distribution to the
beneficiaries of the estate. It also protects defendants against claims that cannot
be limited statutorily.     R.C. 2125.04 is therefore constitutional because it is
rationally related to the legitimate government interest of resolving cases
expeditiously. It applies equally to all who are similarly situated and does not
violate equal protection.
                            C. Statutory Immunity Claim
          {¶ 20} When the trial court dismissed the complaint, it did not indicate
whether the dismissal was because the action had been untimely filed or because
the school board had statutory immunity. The court of appeals remanded the
case, holding both that R.C. 2125.04 is unconstitutional and that because the issue
of statutory immunity had not been fully developed on the record, the court had
no basis to dismiss the action. Eppley v. Tri-Valley Local School District, 5th
Dist. No. CT 2007-0022, 2008-Ohio-32, ¶ 38, 49. Because we hold R.C. 2125.04
to be constitutional as applied to this action, the trial court properly dismissed the
action.
          {¶ 21} We need not reach the issue of statutory immunity. Having upheld
the constitutionality of R.C. 2125.04, we have found that the action was untimely
filed.    While we have been asked to consider the nonconstitutional issue of
statutory immunity, jurisdiction is a condition precedent to a court’s ability to
hear a case. State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 75, 701
N.E.2d 1002. The timely filing of a complaint is essential to prosecute a wrongful
death cause of action. R.C. 2125.02(D)(1) (“a civil action for wrongful death
shall be commenced within two years after the decedent’s death”); see also
Brookbank v. Gray (1996), 74 Ohio St.3d 279, 291, 658 N.E.2d 724. Because
R.C. 2125.02(D)(1) is a restriction that qualifies the cause of action, we have no
occasion to reach the school board’s second and third propositions of law once the
constitutionality of R.C. 2125.04 has been upheld.




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                                   III. Conclusion
       {¶ 22} We reverse the judgment of the court of appeals and hold that the
saving statute for wrongful death actions, R.C. 2125.04, does not violate the right
to equal protection of the law under the Fourteenth Amendment to the United
States Constitution and Section 2, Article I of the Ohio Constitution.
                                                                Judgment reversed.
       MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and
CUPP, JJ., concur.
       PFEIFER, J., dissents.
                                __________________
       PFEIFER, J., dissenting.
       {¶ 23} I prefer to see the distinction between the saving clauses contained
in R.C. 2125.04 and 2305.19(A) as the result of legislative inadvertence. The
General Assembly fixed the “malpractice trap” associated with the saving statute
in R.C. 2305.19, and given that R.C. 2305.19(A) applies “[i]n any action that is
commenced or attempted to be commenced,” the General Assembly could have
assumed that it would apply to wrongful-death actions. (Emphasis added.)
Everyone makes mistakes, even the Ohio General Assembly.
       {¶ 24} The amendment of R.C. 2305.19(A) was meant to fix inequitable
treatment of certain plaintiffs: “The framers of the amendment expressed concern
that the pre-amendment version treated arguably * * * similarly situated plaintiffs
differently, by giving a plaintiff who exercises a Rule 41(A)(1) dismissal a full
year to refile, while a plaintiff who dismisses before the statute [of limitations]
runs possibly only one or two days to refile. The amendment permits plaintiffs
one year to refile, or the time left (if any) on an unexpired statute of limitations,
whichever is later.” (Footnote omitted.) 3 Anderson’s Ohio Civil Practice (2008)
148-40, Section 148.13.




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       {¶ 25} If the General Assembly’s inaction in failing to make the same
change to R.C. 2125.04 was purposeful, that is more disturbing than a mistake.
There is no rational basis to distinguish between wrongful-death plaintiffs and all
other plaintiffs in fixing the malpractice trap. Is there a rational basis to fix a
disparity that existed between plaintiffs that dismissed civil claims within a few
days of each other but to not have that fix apply to wrongful-death plaintiffs? If
the General Assembly’s aim is to speed along wrongful-death claims, as the
majority posits, it has not adopted a rational method to achieve that end.
Wrongful-death plaintiffs still have the ability to extend the lives of their claims,
as long as they wait to dismiss their claims until the statute of limitations has
passed. To encourage prompt dismissals and refilings, the General Assembly
should have made the same amendment to R.C. 2125.04 as it made to R.C.
2305.19(A). If the General Assembly’s aim was to perpetuate a malpractice trap
only for wrongful-death plaintiffs in order to limit overall damages awarded in
wrongful-death cases, that would constitute an illegitimate attempt to limit the
damages recoverable in wrongful-death claims and would violate Section 19a,
Article I, of the Ohio Constitution.
       {¶ 26} The majority has attempted to attribute rationality to the General
Assembly’s unintentional act. The General Assembly thus emerges worse than if
it had been merely mistaken.
                               __________________
       Elk & Elk Co., Ltd., Martin S. Delahunty, John W. Gold, and Peter D.
Traska, for appellee.
       Britton, Smith, Peters & Kalail Co., L.P.A., David Kane Smith, and
Michael E. Stinn, for appellant.
                            ______________________




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