Ward v. Graue, No. CA2012–06–046.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtHENDRICKSON
Citation987 N.E.2d 760
PartiesCory WARD, Plaintiff–Appellant, v. James S. GRAUE, Defendant–Appellee.
Docket NumberNo. CA2012–06–046.
Decision Date25 March 2013

987 N.E.2d 760

Cory WARD, Plaintiff–Appellant,
v.
James S. GRAUE, Defendant–Appellee.

No. CA2012–06–046.

Court of Appeals of Ohio,
Twelfth District, Clermont County.

March 25, 2013.






Unconstitutional as Applied


R.C. § 2305.15(A)

[987 N.E.2d 761]

R. Garrett Worley III, Cincinnati, OH, for plaintiff-appellant.


Brian J. Augustine, Cincinnati, OH, for defendant-appellee.

Bradley A. Wright, Akron, OH, for defendant-appellee.

OPINION

HENDRICKSON, P.J.

{¶ 1} Plaintiff-appellant, Cory Ward, appeals a decision of the Clermont Count Court of Common Pleas granting summary judgment in favor of defendant-appellee, James Graue. For the reasons discussed below, we affirm the trial court's decision.

{¶ 2} On January 14, 2011, Ward filed a complaint for personal injury. In his complaint, Ward alleged that on January 6, 2009, he was a passenger in a motor vehicle traveling northbound on State Route 133 in Williamsburg, Ohio when a freight truck negligently operated by Graue exited a private drive, turned left, failed to yield the right of way, and struck the vehicle in which Ward was traveling. Ward stated that he suffered severe bodily injury from the accident, which he claims was the direct and proximate result of Graue's breach of his duty to operate his vehicle in a reasonably prudent fashion. Ward further alleged that Graue is, and at all relevant times has been, a resident of Villa Hills, Kentucky, and that “[p]ursuant to R.C. § 2305.15 [Graue] has be [en] absent from the State of Ohio for more than 8 days at the filing of this suit.”

{¶ 3} Graue filed a Civ.R. 12(B)(6) motion to dismiss Ward's complaint on the basis that it was filed eight days after the two-year statute of limitations set forth in R.C. 2305.10 had expired, and the trial court granted the motion. In Ward v. Graue, 12th Dist. No. CA2011–04–032, 2012-Ohio-760, 2012 WL 622237, this court reversed the trial court's decision and remanded the matter upon finding that the trial court had improperly relied on allegations

[987 N.E.2d 762]

outside the scope of the complaint in ruling on Graue's motion to dismiss.

{¶ 4} After the case was remanded to the trial court, Graue filed a motion for summary judgment, again arguing that the complaint had been filed after the statute of limitations had expired. Graue contended that the tolling statute set forth in R.C. 2305.15 did not apply to save Ward's cause of action because the statute places an unconstitutional and impermissible burden on interstate commerce in violation of the Commerce Clause of the United States Constitution. In support of his motion for summary judgment, Graue attached an affidavit in which he averred that from January 6, 2009 until January 14, 2011, the date he was served with Ward's lawsuit, he lived in Kentucky and frequently traveled to and from Ohio for the purpose of his employment. Graue stated that he began working as a driver for United Parcel Service, Inc. (UPS) in 1999, and the parcels that he delivered “would often have traveled across state lines before arriving in Ohio to be delivered by me, a resident of Kentucky.” Graue further averred that on January 6, 2009, he was working as a package car driver for UPS, and at the time of the accident, he had been driving “one of the unmistakable large brown delivery trucks [for] UPS.” In his affidavit, Graue states that he is not disputing Ward's claim that he was outside Ohio for more than eight days between January 6, 2009 and January 14, 2011. However, Graue attested that he “was not outside the State of Ohio in order to ‘abscond’ or ‘conceal myself’ between January 6, 2009 and January 14, 2011. I was outside of the State of Ohio because I lived in Kentucky during that period of time, as I do to this day.”

{¶ 5} Ward filed a memorandum in opposition to Graue's motion for summary judgment, arguing that the tolling statute does apply to save his personal injury claim. Ward did not attach any evidence in support of his memorandum in opposition.

{¶ 6} A hearing on Graue's motion for summary judgment was held and, on May 31, 2012, the trial court entered a decision granting summary judgment in Graue's favor. In finding that R.C. 2305.15 could not be constitutionally applied to save Ward's claim, the trial court specifically held as follows:

The uncontroverted evidence * * * is that Graue was a nonresident, traveling in Ohio while in the scope of his employment delivering parcels sent in interstate commerce to the ultimate addressee. His departure from Ohio after the date of the accident was solely to return to his Kentucky home, not to abscond or conceal himself.

This Court finds the rationale of Bendix [ Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988) ] * * * is equally applicable to a non-resident individual whose sole purpose in being in the state of Ohio is the lawful engagement in one's employment that promotes and involves interstate commerce. To hold otherwise would place an impermissible burden on interstate commerce, not only to those entities engaged in the business of commerce, but also any individual seeking employment with these entities. * * *

{¶ 7} Ward timely appealed the trial court's decision, raising as his sole assignment of error the following:

{¶ 8} THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF–APPELLANT CORY WARD BY GRANTING DEFENDANT–APPELLEE JAMES GRAUE'S MOTION FOR SUMMARY JUDGMENT AND FINDING THAT R.C. 2305.15, AS

[987 N.E.2d 763]

APPLIED TO DEFENDANT–APPELLEE, IS UNCONSTITUTIONAL.

{¶ 9} Within his sole assignment of error, Ward argues that the trial court erred in finding R.C. 2305.15 unconstitutional as applied to Graue. Ward contends that the holding of Bendix applies only to corporations, not natural persons, and that the trial court erred in extending the holding of Bendix to the facts of the present case. Ward further contends that Turek v. Hogan, 12th Dist. No. CA92–09–178, 1993 WL 229395 (June 28, 1993), is controlling and applies to save his claim.

{¶ 10} This court's review of a trial court's ruling on a motion for summary judgment is de novo. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, 932 N.E.2d 381, ¶ 14 (12th Dist.). “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Morris v. Dobbins Nursing Home, 12th Dist. No. CA2010–12–102, 2011-Ohio-3014, 2011 WL 2449008, ¶ 14, citing Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th...

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4 practice notes
  • Knappenberger v. Davis-Stanton, 091216881
    • United States
    • Court of Appeals of Oregon
    • May 13, 2015
    ...move out-of-state to register with the state for service purposes.”15 Tesar, 738 F.Supp. at 242 ; see also Ward v. Graue, 2013–Ohio–1107, 987 N.E.2d 760 (2013) (affirming trial court grant of summary judgment to out-of-state defendant on ground that plaintiffs complaint for negligence invol......
  • DeWine v. State Farm Ins. Co., No. 20CA3903
    • United States
    • United States Court of Appeals (Ohio)
    • November 23, 2020
    ...Ohio." Ruble v. Ream, 4th Dist. Washington No. 03CA14, 2003-Ohio-5969, 2003 WL 22532858, ¶ 24 ; see also Ward v. Graue , 2013-Ohio-1107, 987 N.E.2d 760, ¶ 20 (12th Dist.) (Graue, a resident of Kentucky employed by and driving a UPS delivery truck frequently across state lines, was not subje......
  • State v. Schleiger, No. CA2011–11–012.
    • United States
    • United States Court of Appeals (Ohio)
    • March 25, 2013
    ...PRISON SENTENCE AND ORDER PRISON TERM FOR THE FOURTH DEGREE FELONY CHARGE TO RUN CONCURRENT TO THE SECOND DEGREE FELONY CHARGE. (sic) [987 N.E.2d 760] {¶ 28} Appellant argues the trial court erred when it denied his request that his prison terms be served concurrently rather than consecutiv......
  • Total Quality Logistics, LLC v. Balance Transp., LLC, NO. 2017-CVH-000970
    • United States
    • Court of Common Pleas of Ohio
    • April 1, 2019
    ...being entitled to have the evidence construed most strongly in its favor. 122 N.E.3d 693 Ward v. Graue , 12th Dist., 2013-Ohio-1107, 987 N.E.2d 760, ¶¶ 10-11.The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is enti......
4 cases
  • Knappenberger v. Davis-Stanton, 091216881
    • United States
    • Court of Appeals of Oregon
    • May 13, 2015
    ...move out-of-state to register with the state for service purposes.”15 Tesar, 738 F.Supp. at 242 ; see also Ward v. Graue, 2013–Ohio–1107, 987 N.E.2d 760 (2013) (affirming trial court grant of summary judgment to out-of-state defendant on ground that plaintiffs complaint for negligence invol......
  • DeWine v. State Farm Ins. Co., No. 20CA3903
    • United States
    • United States Court of Appeals (Ohio)
    • November 23, 2020
    ...Ohio." Ruble v. Ream, 4th Dist. Washington No. 03CA14, 2003-Ohio-5969, 2003 WL 22532858, ¶ 24 ; see also Ward v. Graue , 2013-Ohio-1107, 987 N.E.2d 760, ¶ 20 (12th Dist.) (Graue, a resident of Kentucky employed by and driving a UPS delivery truck frequently across state lines, was not subje......
  • State v. Schleiger, No. CA2011–11–012.
    • United States
    • United States Court of Appeals (Ohio)
    • March 25, 2013
    ...PRISON SENTENCE AND ORDER PRISON TERM FOR THE FOURTH DEGREE FELONY CHARGE TO RUN CONCURRENT TO THE SECOND DEGREE FELONY CHARGE. (sic) [987 N.E.2d 760] {¶ 28} Appellant argues the trial court erred when it denied his request that his prison terms be served concurrently rather than consecutiv......
  • Total Quality Logistics, LLC v. Balance Transp., LLC, NO. 2017-CVH-000970
    • United States
    • Court of Common Pleas of Ohio
    • April 1, 2019
    ...being entitled to have the evidence construed most strongly in its favor. 122 N.E.3d 693 Ward v. Graue , 12th Dist., 2013-Ohio-1107, 987 N.E.2d 760, ¶¶ 10-11.The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is enti......

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