Lovejoy v. Macek, 96-L-149

• Decision Date: 02 September 1997
• Docket Number: No. 96-L-149,96-L-149
• Citation: 122 Ohio App.3d 558,702 N.E.2d 457
• Parties: LOVEJOY, Appellant, v. MACEK, Appellee. *
• Court: Ohio Court of Appeals

Page 558

122 Ohio App.3d 558

702 N.E.2d 457

LOVEJOY, Appellant, v. MACEK, Appellee. ^*

No. 96-L-149.

Court of Appeals of Ohio,

Eleventh District, Lake County.

Decided Sept. 2, 1997.

Mitchell L. Alperin, Beachwood, for appellant.

Meyers, Hentemann & Rea Co., and Joseph H. Wantz, Cleveland, for appellee.

CHRISTLEY, Presiding Judge.

This is an accelerated calendar case. Appellant, Kennard R. Lovejoy, appeals the decision of the Lake County Court of Common Pleas denying appellant's motion for reconsideration of the trial court's decision to dismiss Count One of appellant's complaint against appellee, Stephen J. Macek, Jr. ¹ For the following reasons, we find merit in appellant's assignment of error.

The case arose as a result of an automobile accident between appellant and appellee in Lake County on January 11, 1993. ² When the matter was not resolved among the parties, appellant's counsel claimed that he "attempted to file a lawsuit" by placing a complaint and filing fee in the mail on December 27, 1994, some two weeks before the two-year statute of limitations for personal injury claims expired pursuant to R.C. 2305.10.

The clerk of courts, however, time-stamped the complaint on January 13, 1995. ³ Appellee moved for dismissal of Count One of appellant's claim pursuant to Civ.R 12(B)(6), as the complaint on its face was filed two days after the applicable statute of limitations for personal injury expired on January 11, 1995.

The trial court granted appellee's motion to dismiss on April 27, 1995, after receiving briefs, replies, and responses from both counsel on the motion. Before the motion was granted, however, appellant had propounded a set of interrogatories to appellee primarily inquiring about his whereabouts and activities between January 11, 1993 and January 11, 1995.

Appellee served his verified answers to the interrogatories on appellant on May 5, 1995, subsequent to the trial court's dismissal of Count One of appellant's complaint on April 27, 1995. In the answers, appellee admitted to being out of the state of Ohio for vacation purposes for approximately six to nine days, as well as attending Fredonia State College in New York for approximately one year. Appellee worked as a night guard at Fredonia State College for approximately five months of that time. At all times, appellee maintained his permanent residence with his parents in Painesville, Ohio. Appellee returned to Painesville to attend college in Ohio from August 1993 through January 11, 1995.

Upon receiving appellee's answers, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B) on the basis that the periods during which appellee was out of the state of Ohio tolled the two-year statute of limitations for at least two days pursuant to R.C. 2305.15, so that the complaint had, in fact, been timely filed.

Appellee filed a brief in opposition, arguing that R.C. 2305.15 was rendered unconstitutional in violation of the Commerce Clause of the United States Constitution by the decision of the United States Supreme Court in Bendix Autolite Corp. v. Midwesco Ent., Inc. (1988), 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896, and its progeny, and therefore did not apply to save appellant's complaint from a motion to dismiss. The trial court denied appellant's motion for relief from judgment. ⁴

Appellant subsequently filed a motion for reconsideration in which he asserted the same arguments put forth in his motion for relief from judgment. Appellee again filed a brief in opposition on the same grounds which appellee had stated earlier, i.e., that R.C. 2305.15 was rendered unconstitutional by virtue of the decision in Bendix and its progeny, and thus it did not apply in this case.

The trial court denied appellant's motion for reconsideration and ruled that its decision of April 27, 1995 which dismissed count one of appellant's complaint should remain in full force. The trial court found "no just cause for delay," per Civ.R. 54(B). The basis of the trial court's decision was its determination that R.C. 2305.15 was unconstitutional in violation of the Commerce Clause of the United States Constitution in accordance with Bendix and its progeny. Specifically, the court found that (1) appellee was engaged in interstate commerce by his acts of vacationing and attending college out of state, and (2) appellant failed to meet his burden of showing that appellee's acts of leaving the state were a result of his attempts to abscond or conceal himself pursuant to R.C. 2305.15.

Appellant appeals this decision, asserting a single assignment of error:

"The lower court incorrectly interpreted, applied and/or expanded the statute of limitations contrary to law and in so doing clearly abused its discretion in prematurely dismissing this case before discovery could even be commenced."

At the core of appellant's arguments, he asserts that the decision of the United States Supreme Court in Bendix did not render the application of R.C. 2305.15 unconstitutional under the facts of this case, and that the state statute still applies to preclude dismissal of Count One of his complaint. We agree.

R.C. 2305.15(A) states in part:

"(A) 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 sections 2305.04 to 2305.14 * * * of the Revised Code does not begin to run until he comes into the state or while he is so absconded or concealed."

Prior to Bendix, the interpretation of R.C. 2305.15 in cases similar to this was well settled in Ohio. In Wetzel v. Weyant (1975), 41 Ohio St.2d 135, 70 O.O.2d 227, 323 N.E.2d 711, the Supreme Court of Ohio held that "[w]here a defendant temporarily leaves the state after a cause of action accrues against him, he 'departs from the state' within the meaning of R.C. 2305.15, and the time of his absence is not computed as any part of a period within which the action must be brought." Id. at syllabus. The defendant in Wetzel left the state of Ohio for approximately three and a half weeks of vacation. The court applied R.C. 2305.15 to toll the statute of limitations for the time the defendant was on vacation. Our own court and others applied R.C. 2305.15 in accordance with Wetzel. See Hahn v. Lallanilla (Jan. 9, 1978), Portage App. No. 764, unreported; Conway v. Smith (1979), 66 Ohio App.2d 65, 20 O.O.3d 134, 419 N.E.2d 1117.

Subsequently in Bendix, 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896, the United States Supreme Court examined R.C. 2305.15(A) to determine if it violated the Commerce Clause in reference to out-of-state corporations. There, the court determined that the statute-of-limitations defense was in effect denied to out-of-state corporations by R.C. 2305.15. It reasoned that a foreign corporation would have to choose between exposure to the general jurisdiction of Ohio courts or forfeiture of any limitations defense under the tolling statute. The court determined this choice to be an impermissible burden on interstate commerce, thereby violating the Commerce Clause.

Bendix was then extended to a case where an Ohio resident moved out of state for employment purposes. Tesar v. Hallas (N.D. Ohio 1990), 738 F.Supp. 240. In Tesar, the court held that interstate commerce is clearly affected when persons move between states in the course of or in search of employment. Id. at 242. The court further determined that the individual defendant had an "even more draconian choice to make" than a corporation as he or she would have to remain in Ohio permanently to preclude application of the tolling statute. Id. at 242-243.

Bendix and its progeny were applied in the courts of Ohio in Gray v. Austin (1992), 75 Ohio App.3d 96, 598 N.E.2d 893. In Gray, the Second District Court of Appeals refused to apply R.C. 2305.15 in a case where a defendant permanently left Ohio to start a new law practice in the Virgin Islands, on the basis that the statute as applied violated the Commerce Clause. The court held that "under the rule of Bendix, application of R.C. 2305.15(A) to toll the statute of limitations * * *, as it applies to the facts of this case, is unconstitutional." Id. at 101, 598 N.E.2d at 896.

In the instant case, the trial court based its decision on the "logical progression" of Bendix and its progeny, including Gray, to find that the statute of limitations was not tolled under R.C. 2305.15 for an Ohio resident who temporarily left the state and engaged in interstate commerce unless this individual was intentionally attempting to conceal himself or herself or abscond. The trial court determined that appellee's acts of vacationing and attending college out of state amounted to acts which constituted interstate commerce.

Since the decision in Bendix, the appellate courts of Ohio have provided conflicting interpretations as to exactly what part of R.C. 2305.15 has been ruled unconstitutional, and to what situations R.C. 2305.15 still applies. ⁵ These differing interpretations can be classified into two main schools of thought.

First, appellate courts have determined that R.C. 2305.15 is no longer a valid means to extend the statute of limitations, as it has been found, with possibly two exceptions, to be violative of the Commerce Clause. Those two exceptions are where the defendant has absconded or concealed himself to avoid service. Stutz v. Grigsby (May 14, 1993), Lucas App. No. L-92-335, unreported, 1993 WL 155644. See, also, Noonan v. Rogers (1994), 97 Ohio App.3d 621, 647 N.E.2d 221; Jones v. St. Anthony Med. Ctr. (Feb. 20, 1996), Franklin App. No. 95APE08-1014, unreported, 1996 WL 70997; Simpson v. Neidlinger (Nov. 13, 1996), Hamilton App. No. C-950649, unreported, 1996 WL 656357. ⁶

Second, appellate courts have applied R.C. 2305.15 as in pre-Bendix times, except in cases where the Commerce Clause was clearly invoked as a result of the defendant's employment or...