Johnson v. Rhodes, No. 99-1652

• Citation: 733 NE 2d 1132,89 Ohio St.3d 540
• Decision Date: 06 September 2000
• Docket Number: No. 99-1962., No. 99-1652
• Parties: JOHNSON ET AL., APPELLANTS, v. RHODES ET AL., APPELLEES.
• Court: United States State Supreme Court of Ohio

89 Ohio St.3d 540

733 NE 2d 1132

JOHNSON ET AL., APPELLANTS, v. RHODES ET AL., APPELLEES.

Nos. 99--1962.

Supreme Court of Ohio.

Submitted May 10, 2000.

Decided September 6, 2000.

Eslocker, Hodson & Oremus Co., L.P.A., and Frederick L. Oremus, for appellants.

Theisen, Brock, Frye, Erb & Leeper Co., L.P.A., John E. Erb and Abe Sellers, for appellees.

MOYER, C. J.

This appeal presents two issues for our consideration. First, we must determine whether the period of limitations provided in R.C. 2305.10 is tolled when an individual temporarily leaves the state of Ohio for non-business reasons. In addition, we must determine if the application of R.C. 2305.15 against such an individual is unconstitutional for the reason that it constitutes an impermissible burden on interstate commerce under the holding of the United States Supreme Court in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988), 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896.

R.C. 2305.15(A) provides:

"When a cause of action accrues against a person, if he is out of the state, has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in [section 2305.10] does not begin to run until he comes into the state or while he is so absconded or so concealed. After the cause of action accrues if he departs from the state, absconds, or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." (Emphasis added.)

In Wetzel v. Weyant (1975), 41 Ohio St.2d 135, 70 O.O.2d 227, 323 N.E.2d 711, this court determined that the period of limitations provided in R.C. 2305.10 is tolled by the application of R.C. 2305.15 when an individual temporarily leaves the state, and such period of absence is not computed as any part of the period within which a suit must be brought. We are not persuaded to change the law announced in Wetzel. R.C. 2305.15 has remained virtually unchanged since at least 1947. Wetzel at 137, 70 O.O.2d at 228, 323 N.E.2d at 712. The plain language of this section of the Revised Code provides that when a person "departs from the state * * *, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." The General Assembly has the authority to adopt statutes of limitations for the commencement of causes of action. Unless a statute is unconstitutional, we have no authority to change the plain meaning of the statute. Therefore, we conclude that the limitations period provided in R.C. 2305.10 is tolled when an individual temporarily leaves the state of Ohio for non-business reasons.

Defendants argue that the holding of the United States Supreme Court in Bendix, supra, renders R.C. 2305.15 unconstitutional as construed by this court in Weyant. In Bendix, the United States Supreme Court ruled R.C. 2305.15 unconstitutional as it was applied against an out-of-state corporation that did not have an agent designated for service of process within the state of Ohio. In Bendix, it was asserted that R.C. 2305.15 should be construed to extend the period of limitations against an out-of-state corporation perpetually, unless the corporation designates an agent for service of process within the state of Ohio. The Supreme Court, however, held that such an application of R.C. 2305.15 would impose an impermissible burden on interstate commerce. Id., 486 U.S. at 894, 108 S.Ct. at 2222, 100 L.Ed.2d at 904.

Defendants argue that the Supreme Court's ruling in Bendix should be applied to plaintiffs' claims against them. However, the court's ruling in Bendix was limited to the facts of the case. In writing for the majority, Justice Kennedy states, "[I]n the particular case before us, the Ohio tolling statute must fall under the Commerce Clause. Ohio cannot justify its statute as a means of protecting its residents from corporations who become liable for acts done within the State, but later withdraw from the jurisdiction * * *." Id. This language indicates that the decision of the court in Bendix operates to preclude the application of R.C. 2305.15 against out-of-state corporations that have not appointed an agent for service of process in the state of Ohio. However, the decision stops far short of declaring R.C. 2305.15 unconstitutional in any other application. In Bendix, the court noted that application of R.C. 2305.15 to an out-of-state corporation without an agent designated for service of process within the state of Ohio would subject the corporation to perpetual liability in lawsuits arising from their actions in the state of Ohio. This would impose "a greater burden on out-ofstate companies than it does on Ohio companies" in violation of the Commerce Clause. Id. at 893-894, 108 S.Ct. at 2221-2222, 100 L.Ed.2d at 903-904. However, the application of R.C. 2305.15 to individuals, such as defendants, who temporarily leave the state of Ohio for non-business reasons, imposes no such impermissible burden. For this reason, we hold that the application of R.C. 2305.15 against an individual, who temporarily leaves the state of Ohio for non-business reasons, does not constitute an impermissible burden on interstate commerce.

Defendants concede that they left the state of Ohio for a period of ten days to vacation in Kentucky. Plaintiffs filed their claims two days beyond the period of limitations provided in R.C. 2305.10. Therefore, plaintiffs' claims were timely filed pursuant to the tolling provision provided in R.C. 2305.15.

For all of the foregoing reasons, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for proceedings consistent with the opinion of this court.

Judgment reversed and cause remanded.

DOUGLAS, RESN...