Dewine v. State Farm Ins. Co. ( 2020 )

[Cite as Dewine v. State Farm Ins. Co., 2020-Ohio-5517.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
Matthew Dewine, : Case No. 20CA3903
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
State Farm Insurance Company, et al., :
: RELEASED 11/23/2020
Defendants-Appellees.
:
APPEARANCES:
Robert M. Johnson and Jeremy M. Burnside, Burnside Law, LLC, Portsmouth, Ohio, for
appellant.
James L. Mann, Circleville, Ohio, for appellee.
Hess, J.
{¶1} Matthew Dewine appeals the trial court’s decision granting summary
judgment in favor of Bryan Dewine on the ground that Matthew Dewine’s action is barred
by the statute of limitations. Matthew argues that the trial court erred because it failed to
toll the statute of limitations during the time that Bryan was absent from the state of Ohio
as required by R.C. 2305.15(A).
{¶2} We find that the tolling provision in R.C. 2305.15(A) applies to Bryan’s
absence from Ohio. The plain language of the statute provides that the time of Bryan’s
absence from Ohio “shall not be computed as any part of a period within which the action
must be brought.” Bryan left Ohio and moved to Nevada because a woman he was dating
lived there. Eventually he married her and found a job. Bryan was not engaged in
commerce so as to implicate the Commerce Clause. Because the cause of action accrued
Scioto App. No. 20CA3903 2
on April 3, 2016, Bryan was absent from Ohio from June 18, 2016 to August 8, 2018, and
the lawsuit was filed on September 11, 2018, it was filed within the two-year statute of
limitations of R.C. 2305.10. We sustain Matthew Dewine’s assignment of error and
reverse the trial court’s judgment.
I. PROCEDURAL HISTORY
{¶3} On September 11, 2018, Matthew Dewine filed a complaint against his
father Bryan Dewine and State Farm Insurance Company asserting a negligence claim
against Bryan and an uninsured/underinsured and medical payments benefit claim
against State Farm arising from a motor vehicle accident that occurred on April 3, 2016.
Matthew alleged that Bryan negligently failed to maintain reasonable control of his vehicle
and it ran off the roadway and collided with a guardrail, causing injuries to Matthew, a
passenger in the vehicle. Matthew voluntarily dismissed his claim against State Farm
and the case proceeded solely against Bryan.
{¶4} Bryan filed a motion for summary judgment, arguing that the two-year
statute of limitations in R.C. 2305.10 governing personal injury claims barred Matthew’s
claim, which was filed approximately two years and five months after the accident. After
the April 3, 2016 accident, Bryan left Ohio on June 18, 2016 and moved to Nevada, where
he resided until he returned to Ohio on August 8, 2018. Bryan argued that the tolling
provisions of R.C. 2305.15(A), which excludes the time period he was absent from Ohio
from the statute of limitation calculation, was unconstitutional as applied to him. He
argued that the United States Supreme Court examined Ohio’s tolling provision in R.C.
2305.15(A) in Bendix, infra, and held that it violated the Commerce Clause of the United
States Constitution by placing an impermissible burden on out-of-state corporations. The
Scioto App. No. 20CA3903 3
effect of Ohio’s tolling provision was to make an out-of-state corporation subject to suit in
Ohio in perpetuity while an Ohio corporation is not. The Supreme Court held that to gain
the protections of the statute of limitations, an out-of-state corporation would have to
appoint a resident agent for service of process in Ohio and subject itself to the Ohio courts’
general jurisdiction – a burden unjustified where Ohio’s long-arm statute permits service
on the foreign corporation. Bryan argued that the Bendix holding was extended beyond
out-of-state corporations to out-of-state residents in Reynoldsville Casket Co. v. Hyde,
514 U.S. 749, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995) and was further extended to Ohio
residents who leave Ohio for employment in another state by Tesar v. Hallas, 738 F.Supp.
240 (N.D. Ohio 1990) (holding that a defamation action against an Ohio reporter who
moved to Pennsylvania for employment was barred by the statute of limitations because
the tolling provision in R.C. 2305.15(A) was unconstitutional as applied). Bryan argued
that because he moved from Ohio to Nevada to get married and find other employment,
the application of R.C. 2305.15(A) to toll the statute of limitations against him is similarly
unconstitutional as applied.
{¶5} Matthew opposed the motion and argued that the tolling provision in R.C.
2305.15(A) applies to Ohio residents who leave the state for non-business reasons, citing
Johnson v. Rhodes, 89 Ohio St.3d 540, 2000-Ohio-235, 733 N.E.2d 1132. Because Bryan
left the state to get married – not for business reasons, Matthew argued that the tolling
provision did not violate the Commerce Clause in this instance. Matthew also cited a more
recent decision by the Court of Appeals for the Sixth Circuit in which an Ohio doctor
allegedly committed malpractice then left Ohio to retire in Florida. See Garber v.
Menendez, 888 F.3d 839 (6th Cir. 2018). The Sixth Circuit held that the tolling provision
Scioto App. No. 20CA3903 4
of R.C. 2305.15(A) as applied to Dr. Menendez, “does not impose a cost on a traditional
interstate business transaction” and “does not lead to favoritism toward in-state firms over
out-of-state ones.” Id. at 846. The Sixth Circuit reversed the district court’s decision
holding the statute unconstitutional as applied to Dr. Menendez and instead held that the
tolling provision applied to the time he was absent from Ohio.
{¶6} Here, the trial court reviewed the case law and found three general
scenarios: (1) the defendant is not an Ohio resident at the time the cause accrued and
left the state – in these cases the statute is not tolled; (2) the defendant is an Ohio resident
at the time the cause accrued and then leaves the state indefinitely to take employment
– in these cases the statute is not tolled; and (3) the defendant is an Ohio resident at the
time the cause accrued and temporarily leaves the state – in these cases the statute is
tolled for the time the resident is absent from the state. The trial court found that the key
issue in each scenario is intent, “where a person leaves and has no intent to return, Ohio
law says tolling does not apply.” Because Bryan left Ohio and went to Nevada to marry,
live, work, obtain a driver’s license, and become a Nevada resident, the trial court found
that there was no evidence that he had the intention of returning to Ohio. Therefore, the
trial court held that the tolling provisions of R.C. 2305.15(A) were inapplicable to Bryan,
granted him summary judgment, and dismissed Matthew’s complaint as barred by the
statute of limitations.
II. ASSIGNMENT OF ERROR
{¶7} Matthew assigns the following error for our review:
The Trial Court erred in granting summary judgment in favor of Appellee
Bryan Dewine because it failed to adhere to Section 2305.15 of the Ohio
Revised Code.
Scioto App. No. 20CA3903 5
III. LAW AND ANALYSIS
{¶8} Matthew contends that the trial court erred when it failed to apply the tolling
provision of R.C. 2305.15(A) to the time Bryan was absent from Ohio. He argues that the
plain language of the statute is unambiguous and provides, “if the person departs from
the state * * * the time of the person’s absence or concealment shall not be computed as
any part of a period within which the action must be brought.” Matthew argues that the
trial court did not address the Sixth Circuit’s decision in Garber, supra, which is the highest
federal authority on the matter. Matthew also argues that the trial court improperly added
“intent” as an element to R.C. 2305.15 even though there is no distinction in the statute
between absences “intended” to be permanent and those “intended” to be temporary.
{¶9} Bryan takes a cautiously critical view of the Sixth Circuit’s analysis in
Garber, pointing to the Court’s failure to include Reynoldsville Casket, supra, in its
analysis and urges us to affirm the trial court’s judgment under federal law as set forth in
Bendix, Reynoldsville Casket, and Tesar.
A. Standard of Review
{¶10} We review the trial court's decision on a motion for summary judgment de
novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.
Accordingly, we afford no deference to the trial court's decision and independently review
the record and the inferences that can be drawn from it to determine whether summary
judgment is appropriate. Harter v. Chillicothe Long–Term Care, Inc., 4th Dist. Ross No.
11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35,
2009-Ohio-3126, ¶ 16.
Scioto App. No. 20CA3903 6
{¶11} Summary judgment is appropriate only when the following have been
established: (1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) that reasonable minds can come
to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R.
56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶
15. In ruling on a motion for summary judgment, the court must construe the record and
all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving
for summary judgment bears the initial burden to demonstrate that no genuine issues of
material fact exist and that they are entitled to judgment in their favor as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). To meet its burden,
the moving party must specifically refer to “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C);
Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not
expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a
properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist.
Pickaway No. 11CA25, 2012-Ohio-3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No.
CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). Once that burden is met, the nonmoving
party then has a reciprocal burden to set forth specific facts to show that there is a genuine
issue for trial. Dresher at 293, 662 N.E.2d 264; Civ.R. 56(E); Am. Express Bank, FSB v.
Olsman, 2018-Ohio-481, 105 N.E.3d 369, ¶ 10-11 (4th Dist.).
Scioto App. No. 20CA3903 7
B. Legal Analysis
{¶12} Personal injury actions are governed by a two-year statute of limitations.
R.C. 2305.10. Unless the statute is tolled, Matthew’s action is barred by the applicable
statute of limitations. Matthew argues that the tolling provision in R.C. 2305.15(A) applies
and that his action is timely. That provision states, in relevant part:
R.C. 2305.15 Saving clause; time tolled during imprisonment
(A) When a cause of action accrues against a person, if the person is out of the
state, has absconded, or conceals self, the period of limitation for the
commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98,
and 1304.35 of the Revised Code does not begin to run until the person comes
into the state or while the person is so absconded or concealed. After the cause of
action accrues if the person departs from the state, absconds, or conceals self, the
time of the person's absence or concealment shall not be computed as any part of
a period within which the action must be brought.
{¶13} Historically, the tolling provision in R.C. 2305.15 applied to persons who
were never residents of Ohio and persons who were residents at the time of the event
giving rise to the cause of action. Seeley v. Expert, Inc., 26 Ohio St.2d 61, 269 N.E.2d
121 (1971) citing Meerison v. Groschner, 153 Ohio St 301, 91 N.E.2d 680 (1950) and
Chamberlain v. Lowe, 252 F.2d 563 (6th Cir. 1958). The tolling provision also applied
regardless of whether the nonresident was amenable to process under the long-arm
statute or some other method. Id. at 69-70.
[A] majority of the states, with comparable ‘savings clause’ statutes, have
taken the view that the statute of limitations is not tolled under
circumstances of amenability to process. Their position presents a very
persuasive argument for change in the existing Ohio law in such respect.
We conclude, however, that a change of the law by court ‘interpretation’ at
this time would be violative of the basic rules of statutory interpretation.
While the developments of the now accepted principles of substituted
service under nonresident (and concealed) motorists statutes, and the
advent of the ‘long-arm’ statutes may have eliminated much of the need for
a ‘savings clause,’ it must be recognized that a court, in interpreting a
Scioto App. No. 20CA3903 8
legislative enactment, may not simply rewrite it on the basis that it is thereby
improving the law.
Id. at 71.
{¶14} The tolling provision does not contain an exception for temporary absences
from the state – the statute applies equally to both permanent and temporary absences.
Wetzel v. Weyant, 41 Ohio St.2d 135, 323 N.E.2d 711 (1975) (the tolling provision applied
where defendant was absent from Ohio for several weeks over the course of several
years to vacation in Wisconsin, Michigan, and Florida); Johnson v. Rhodes, 89 Ohio St.3d
540, 2000-Ohio-235, 733 N.E.2d 1132 (Cook, J., concurring opinion, “R.C. 2305.15 does
not distinguish between the ‘types’ of absences, and continued use of the word
‘temporary’ could be read to limit the application of the tolling statute.” (Emphasis sic.)).
{¶15} The tolling provision in R.C. 2305.15(A) was held unconstitutional as
applied in Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S.Ct.
2218, 100 L.Ed.2d 896 (1988). Bendix involved a contract dispute between Bendix, a
Delaware corporation with its principal place of business in Ohio, and Midwesco, an
Illinois corporation with its principal place of business in Illinois. A four-year statute of
limitations governed the dispute but Bendix argued it was tolled by R.C. 2305.15(A).
Midwesco argued that the tolling provision violated the Commerce Clause and the Due
Process Clause of the Fourteenth Amendment. The United States District Court for the
Northern District of Ohio dismissed the action, finding that the tolling statute impermissibly
burdened interstate commerce. The Court of Appeals for the Sixth District affirmed
because “it required a foreign corporation to choose between ‘ “exposing itself to personal
jurisdiction in [state] courts by complying with the tolling statute, or, by refusing to comply,
Scioto App. No. 20CA3903 9
to remain liable in perpetuity for all lawsuits containing state causes of action filed against
it in [the State].” ’ ” (Brackets sic.) Bendix at 890.
{¶16} The United States Supreme Court found that the tolling provision subjected
out-of-state corporations to a significant burden:
The Ohio statutory scheme thus forces a foreign corporation to choose
between exposure to the general jurisdiction of Ohio courts or forfeiture of
the limitations defense, remaining subject to suit in Ohio in perpetuity.
Requiring a foreign corporation to appoint an agent for service in all cases
and to defend itself with reference to all transactions, including those in
which it did not have the minimum contacts necessary for supporting
personal jurisdiction, is a significant burden.
Bendix Autolite Corp. at 893. Next, the Court weighed, “the State’s putative interests
against the interstate restraints to determine if the burden imposed is an unreasonable
one.” Id. at 891. The Court concluded that the burden was unreasonable:
The ability to execute service of process on foreign corporations and entities
is an important factor to consider in assessing the local interest in subjecting
out-of-state entities to requirements more onerous than those imposed on
domestic parties. It is true that serving foreign corporate defendants may be
more arduous than serving domestic corporations or foreign corporations
with a designated agent for service, and we have held for equal protection
purposes that a State rationally may make adjustments for this difference
by curtailing limitations protection for absent foreign corporations.
Nevertheless, state interests that are legitimate for equal protection or due
process purposes may be insufficient to withstand Commerce Clause
scrutiny.
In 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, for it is conceded by all parties
that the Ohio long-arm statute would have permitted service on Midwesco
throughout the period of limitations. The Ohio statute of limitations is tolled
only for those foreign corporations that do not subject themselves to the
general jurisdiction of Ohio courts. In this manner the Ohio statute imposes
a greater burden on out-of-state companies than it does on Ohio
companies, subjecting the activities of foreign and domestic corporations to
inconsistent regulations.
Scioto App. No. 20CA3903 10
Bendix Autolite Corp. at 893–94.
{¶17} In Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 115 St.Ct. 1745, 131
L.Ed.2d 820 (1995), the United States Supreme Court held that its decision in Bendix
applied to pre-Bendix tort claims. It reversed the Ohio Supreme Court’s decision that held
that Bendix does not apply retroactively to bar claims in state courts which had accrued
before the Bendix decision issued. See Hyde v. Reynoldsville Casket Co., 68 Ohio St.3d
240, 1994-Ohio-67, 626 N.E.2d 75 (1994). Hyde sued both the Reynoldsville Casket, a
foreign corporation, and John Blosh, an employee of Reynoldsville Casket who was
involved in a collision with Hyde while in the scope of his employment. The complaint
alleged that Blosh had negligently caused Hyde's injuries and contended that because, “
‘Blosh's actions were in the scope and course of his employment with the [Reynoldsville]
Casket Co.,’ RCC was also liable for those injuries.” (Brackets sic.) Hyde v. Reynoldsville
Casket Co., 68 Ohio St.3d 240, 241, 1994-Ohio-67, 626 N.E.2d 75 (1994). The trial court
dismissed Hyde’s claims as barred by the statute of limitations and the Eleventh District
Court of Appeals affirmed the dismissal. The Court of Appeals applied Bendix to Hyde’s
claims, finding no distinction between the facts in Bendix and those before it. In discussing
employee Blosh, the appellate court found, “Blosh, as an employee of Reynoldsville
Casket Co., was involved in interstate commerce. Moreover, as an individual, he did not
even have the option of registering with the Secretary of State. An individual engaged in
interstate commerce should be afforded the same protection and defenses as a
corporation.” (Citations omitted.) Hyde v. Reynoldsville Casket Co., 11th Dist. Ashtabula
No. 91-A-1660, 1992 WL 192332, *3 (June 30, 1992). The Ohio Supreme Court reversed
the Eleventh District, but then itself was reversed by the United States Supreme Court.
Scioto App. No. 20CA3903 11
{¶18} After Bendix and Reynoldsville Casket, we issued Johnson v. Rhodes, 4th
Dist. Washington No. 98CA26, 1999 WL 595385 (July 23, 1999), rev’d, 89 Ohio St.3d
540, 2000-Ohio-235, 733 N.E.2d 1132, in which we adopted the reasoning of the First
District Court of Appeals in Simpson v. Neidlinger, 1st Dist. Hamilton No. C-950649, 1996
WL 656357 (Nov. 13, 1996). We found that the tolling provision of R.C. 2305.15(A) was
unconstitutional as applied to an Ohio resident who is absent from the state on vacation
and other non-business personal reasons. We found that commerce includes, “those who
offer services to interstate vacationers.” Id. at *3.
{¶19} A few years after Simpson, the First District held, “We perceive the holding
of Bendix has narrowly limited the application of R.C. 2305.15(A) so that the portion of
the statute dealing with an out-of-state person is no longer constitutionally valid.”
Permanent Gen. Ins. Cos., Inc. v. Dressler, 130 Ohio App.3d 628, 631, 720 N.E.2d 959(1st Dist. 1998). The First District judicially amended the language of R.C. 2305.15(A) to
limit its application to those who abscond or conceal themselves out of state:
We believe that a defendant should not be precluded from using the statute-
of-limitations defense where his absences have not affected the plaintiff's
ability to file an action against him in a timely manner. R.C. 2305.15 was not
meant to reward a dilatory plaintiff by extending the time in which to file a
complaint because a defendant vacationed out of state, enjoyed out-of-
state restaurants, visited relatives out of state, or participated in a myriad of
out-of-state activities. The statute was meant to avoid the loss of a
meritorious claim because a diligent plaintiff was prevented from timely
bringing an action because a defendant absconded or concealed himself to
avoid service of process. There is nothing in the record to indicate Dressler
had absconded or concealed his whereabouts.
Further, even if the portion of the statute dealing with out-of-state persons
applied, there is nothing in the record to demonstrate that Dressler was out
of state to avoid service of process. “If a defendant is amenable to service
of process during that time period for R.C. 2305.15(A) purposes, that
defendant is present in the state.”
Scioto App. No. 20CA3903 12
Id. at 632, quoting Jones v. St. Anthony Med. Ctr., 10th Dist. Franklin No. 95APE08-1014,
1996 WL 70997, *7, citing Thompson v. Horvath, 10 Ohio St.2d 247, 251, 227 N.E.2d 225(1967) (“a defendant is present under the savings statute when it can be made to answer
to the claims of the plaintiff. Since the defendant corporation was amenable to process
during the period of the statute of limitations, it was present in the state, the savings
statute is inapplicable, and the statute of limitations is properly available as a defense”).
The First District noted that, since Bendix, Ohio appellate courts have inconsistently
interpreted R.C. 2305.15, with some courts finding it unconstitutional as it applies to
absences from the state for employment purposes and others continuing to apply a literal
interpretation. Id. at 631, fn. 6, 7.
{¶20} The Supreme Court of Ohio determined that a conflict existed between our
decision in Johnson, two Ninth District cases, and a Second District case. See Johnson
v. Rhodes, 87 Ohio St.3d 1477, 721 N.E.2d 1477 (1999) (“The conflict cases are Brown
v. Lavery (1993), 87 Ohio App.3d 745, 622 N.E.2d 1179; Gehr v. Elden (July 8, 1992),
Lorain App. No. 91CA005192, unreported, 1992 WL 161393; and Hoagland v. Webb
(June 3, 1994), Montgomery App. Nos. 14024 and 14061, unreported, 1994 WL 237504”).
In Gehr v. Elden, supra, the Ninth District held that the tolling provision of R.C. 2305.15(A)
applied “to brief absences taken for business or recreation” where the defendant had
admitted to being absent from Ohio for “some nineteen weeks during the two years
following the incident.” Id. at *1. In Brown v. Lavery, supra, the defendant was absent
from Ohio for at least 198 days while attending college. Citing Wetzel v. Weyant, supra,
the Ninth District held that the “statute unambiguously provides that when a party departs
from the state, the time of his absence shall not be computed as part of the statutory
Scioto App. No. 20CA3903 13
period.” (Emphasis sic.) Brown at 747. Neither Gehr nor Brown involved an analysis of
the Commerce Clause or the burdens that R.C. 2305.15(A) might place on interstate
commerce.
{¶21} However, the Second District’s decision in Hoagland v. Webb, supra,
involved an analysis of Bendix in the context of an employee, Webb, who was employed
by a company that sold conveyor systems in interstate commerce. Webb was employed
as a field supervisor and travelled extensively as part of his employment to install
conveyors in Illinois, Kentucky, and Indiana. The appellate court found that Webb’s
employer was involved in interstate commerce and that Webb, “by traveling in the course
of his employment, was also engaged in interstate commerce.” Because the Commerce
Clause was implicated, the appellate court conducted a balancing test to determine if the
tolling provision placed an impermissible burden on interstate commerce. It found:
Individuals whose job descriptions mandate frequent interstate travel would
have to choose between keeping their jobs and forfeiting the statute of
limitations protection. Employers whose businesses require interstate
travel, and who wish to keep their employees who are subject to suit, would
incur increased business expenses as they would have to either change the
job descriptions of those employees so that they would not be required to
leave the state or terminate those employees and pay for the recruitment
and training of new employees to take their place.
Hoagland v. Webb, 2d Dist. Montgomery No. 14024, 1994 WL 237504, *4 (June 3, 1994).
When compared to the relative ease with which Webb, as an Ohio resident, could have
been served by simple certified mail, the appellate court found “far less justification for
the tolling of the statute of limitations period.” Id. at *5. The Second District held:
We must conclude that that portion of R.C. 2305.15(A) which mandates
automatic tolling of the statute of limitations period for persons who travel
interstate in the course of their employment is an impermissible burden on
interstate commerce. Therefore, R.C. 2305.15(A), as it applies to Webb,
constitutes an unconstitutional violation of the commerce clause and cannot
Scioto App. No. 20CA3903 14
be applied to toll the statute of limitations period during those times when
Webb was out of state on business.
Id.; see also Lovejoy v. Macek, 122 Ohio App.3d 558, 564, 702 N.E.2d 457 (11th Dist.)
(“we are most persuaded by the analysis used by the Second District Court of Appeals in
Hoagland * * * vacation trips do not rise to the level of acts engaging interstate
commerce”); Johnson v. Rhodes, 4th Dist. Washington No. 98CA26, 1999 WL 595385,
*4 (July 23, 1999) (Abele, J., dissenting, “I agree with the views expressed in Hoagland
v. Webb * * * until the Ohio General Assembly amends the statute’s language, or until the
Ohio Supreme Court chooses to reconsider the issue, courts should apply the literal
interpretation of the statute.”).
{¶22} Approximately six months after our decision in Johnson v. Rhodes, the
Tenth District Court of Appeals issued Gallo v. Trakas, 10th Dist. Franklin No. 99AP-513,
2000 WL 28846 (Jan. 13, 2000) in which the defendant Denise Trakas had left Ohio for
three days1 and the appellate court held, “The Supreme Court of Ohio has clearly ruled
that such absences from the state toll the statute of limitations.” Id. at *1. The Tenth
District limited the holding in Bendix, “to those circumstances where the effect of the
statute is to permanently toll the statute of limitations. The statute can be viewed as a
burden on interstate commerce when it makes foreign corporations permanently liable to
being sued in the courts of Ohio. R.C. 2305.15(A) does not burden interstate commerce
when it extends a statute of limitation for a reasonable period of time due to a temporary
absence of the party to be sued.” Id. at *2.
1 The decision does not state whether she left for business or pleasure, but Gallo characterized it as
“vacation” in his assignment of error.
Scioto App. No. 20CA3903 15
{¶23} The Supreme Court of Ohio, in addition to the conflicts in the Second and
Ninth Districts, certified a conflict between the Tenth District’s decision in Gallo v. Trakas
and our decision in Johnson v. Rhodes and ultimately reversed our decision in Johnson
and affirmed Gallo. Gallo v. Trakas, 88 Ohio St.3d 1514, 728 N.E.2d 402 (certifying
conflict); Johnson v. Rhodes, 89 Ohio St.3d 540, 2000-Ohio-235, 733 N.E.2d 1132(reversing Johnson, 4th Dist. Washington No. 98CA26, 1999 WL 595385 (July 23, 1999)).
{¶24} In Johnson, the Supreme Court of Ohio held that R.C. 2305.15(A) tolls the
statute of limitations when an individual is absent from Ohio for non-business reasons.
The Court limited Bendix to its facts, “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.”
Johnson at 542. The Court found, “the application of R.C. 2305.15 to individuals * * * who
temporarily leave the state of Ohio for non-business reasons, imposes no such
impermissible burden.” In the concurring opinion, Justice Cook clarified that the term
“temporary” was used only to underscore that the tolling statute applies equally to
permanent and temporary absences and that the qualifying phrase “non-business
reasons” likewise does not appear in R.C. 2305.15 – it is a term used by the majority as
a phrase “to meet Bendix.”
{¶25} Since the Ohio Supreme Court’s decision in Johnson v. Rhodes, our Court
analyzed R.C. 2305.15(A) and held that “under Bendix, R.C. 2305.15(A) is
unconstitutional as applied to * * * a person who never has been a resident of Ohio.”
Ruble v. Ream, 4th Dist. Washington No. 03CA14, 2003-Ohio-5969, ¶ 24; see also Ward
Scioto App. No. 20CA3903 16
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 subject to the tolling provision in R.C. 2305.15(A) because he was never a resident
of Ohio and was in Ohio for purposes of interstate commerce); Grover v. Bartsch, 170
Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 44 (2d Dist.) (Bartsch was a
resident of Virginia, not Ohio, and therefore R.C. 2305.15(A) was unconstitutional as
applied to him).
{¶26} Both Matthew and Bryan urge us to consider federal case law in analyzing
the application of the tolling provision in R.C. 2305.15(A). While we are bound by the
decisions issued by the Supreme Court of the United States, we are not bound by lower
federal court decisions. See State v. Burnett, 93 Ohio St.3d 419, 423, 2001-Ohio-1581,
755 N.E.2d 857, citing State v. Glover, 60 Ohio App.2d 283, 287, 396 N.E.2d 1064 (1st
Dist.1978) (“We would first make the observation that, although we hold the United States
Sixth Circuit Court of Appeals in high regard and we find their decisions to be most
persuasive, we are not bound to follow the holdings that they articulate”); State ex rel.
Yost v. Volkswagen Aktiengesellschaft, 137 N.E.3d 1267, 2019-Ohio-5084, ¶ 30 (10th
Dist.) (Ohio courts are not bound by decision of a federal court other than the United
States Supreme Court “but we are free to consider the persuasiveness of such
decisions”).
{¶27} We find that Johnson, Bendix and Reynoldsville Casket provide sufficient
binding authority for us to fully analyze whether R.C. 2305.15(A) tolls the statute of
limitations here. According to the affidavit Bryan submitted in support of his summary
judgment motion, Bryan was a resident of Ohio on the date of the accident. When he left
Scioto App. No. 20CA3903 17
Ohio to move to Nevada, he did so “because a woman that I was dating had a home
there. While I was living in Nevada, I married my wife and found employment in the State
of Nevada.” Because it is undisputed that Matthew knew Bryan had moved to Nevada,
the “abscond or concealment” provisions of the tolling statute are inapplicable here.
{¶28} Under Johnson, the plain language of R.C. 2305.15(A) 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.’ ” Johnson
at 542. Therefore, the limitations period in R.C. 2305.10 was tolled by Bryan’s absence
from Ohio unless R.C. 2305.15(A) is unconstitutional as applied to him. In his summary
judgment motion, Bryan argued that R.C. 2305.15(A) is unconstitutional as applied to him
because “he moved his residence to the State of Nevada for the purposes of marrying his
wife and to find other employment.” In his reply in support of summary judgment, Bryan
asserted that it was his decision to permanently relocate to Nevada that makes the tolling
provision unconstitutional, “Once he was no longer a resident of the state of Ohio, the
application of R.C. 2305.15(A) to him was unconstitutional.”
{¶29} However, we have found no case law that supports his argument that by
simply moving out of state and establishing residence elsewhere, the tolling provision is
rendered unconstitutional. An individual’s relocation from Ohio to another state does not,
alone, trigger a Commerce Clause analysis. Rather, the issue as identified in Bendix and
Reynoldsville Casket, and as construed in Johnson, is whether the statute as applied to
Bryan places a burden on interstate commerce. And, if so, can it be justified as a means
of protecting Ohio residents.
Scioto App. No. 20CA3903 18
{¶30} For R.C. 2305.15(A) to be unconstitutional as applied to Bryan we must
determine whether Bryan was “engaged in commerce” so as to implicate the Commerce
Clause. Bryan departed from the state to pursue a romantic interest in Nevada. Eventually
he married and found a job. Bryan was neither a foreign corporation engaged in interstate
commerce like the defendant in Bendix, nor an out-of-state employee of a foreign
corporation like the individual defendant in Reynoldsville Casket. Unlike Webb, Bryan was
not employed by a company that required him to travel extensively out of state to fulfill his
job obligations. See Hoagland v. Webb, 2d Dist. Montgomery Nos. 14024,14061, 1994
WL 237504 (June 3, 1994).
{¶31} Bryan argues that under Tesar v. Hallas, 738 F.Supp. 240 (N.D.Ohio 1990),
the application of R.C. 2305.15(A) is unconstitutional as applied to him. He contends that
under Tesar, the “movement of individuals falls within the Commerce Clause” and
interstate commerce is affected when persons move between states in the course of or
in search for employment. Id. at 242. However, as we stated previously, federal court
cases are not binding on us. And, Tesar can be readily distinguished here where Bryan
moved for romance, not employment. To the extent we consider federal cases for their
persuasiveness, we find far more persuasive the Sixth Circuit’s analysis in Garber v.
Menendez, 888 F.3d 839 (2018). There an Ohio physician retired and relocated to Florida.
The United States District Court for the Northern District of Ohio – which was reversed by
the Sixth Circuit – found that “the decision to permanently leave Ohio for Florida does
implicate the Commerce Clause.” Garber v. Menendez, Case No 1:17 CV 1214, 2017 WL
3705875, *3 (N.D.Ohio Aug. 28, 2017) rev.d, 888 F.3d 829. Because the district court
found that the tolling provision in R.C. 2305.15(A) implicated interstate commerce, it
Scioto App. No. 20CA3903 19
analyzed whether the burden it places on commerce is impermissible and found that it
was because it, “prevents individuals from permanent transport across state lines unless
the individual waits until the statute of limitation has expired.” Id. The statute was not
justified because there was, “no indication that [Dr. Menendez] could not be served via
Ohio’s long arm statute.” Id.{¶32} The Sixth Circuit reversed. It explained that historically states could not
compel an out-of-state party to respond to a lawsuit. As a result, defendants could commit
wrongs and leave the state until the statute of limitation expired. States responded by
implementing tolling statutes. Garber v. Menendez, 888 F.3d 839, 841 (2018). Eventually
laws evolved and states enacted long-arm statutes that allowed parties to file suits against
out-of-state defendants. Some legislatures amended their tolling statutes to apply only if
the long-arm statute did not. Ohio “did not alter their tolling statutes, whether via
amendment or interpretation. The tolling laws of Ohio thus work today the way they
always have worked.” Id. at 842.
{¶33} The Sixth Circuit examined Commerce Clause jurisprudence and noted that
review of state laws under the Commerce Clause looks at unconstitutional “economic
protectionism,” either explicit discrimination or laws that appear neutral but have “an
impermissibly protectionist purpose or effect.” Id. at 843. It found that Ohio’s tolling
provision in R.C. 2305.15(A) “clears each of these hurdles.”
Dr. Menendez does not claim that the law explicitly discriminates against
interstate commerce. For good reason. On its face, the tolling statute bears
none of the hallmarks of facial discrimination. It draws no distinctions based
on residency. The law applies to an Ohio resident who commits a tort in
Ohio just as it applies to a Michigan resident who does the same. Johnson
v. Rhodes, 89 Ohio St.3d 540, 733 N.E.2d 1132, 1133 (Ohio 2000); Ohio
Rev. Code § 2305.15. And it does not distinguish between interstate
transactions and intrastate transactions. The tolling statute applies
Scioto App. No. 20CA3903 20
regardless of where the underlying lawsuit arises. See Seeley, 269 N.E.2d
at 123.
The law, it is true, by its nature will affect out-of-state residents more often
than in-state ones. But that reality does not establish a cognizable form of
discrimination if the statute otherwise treats similarly situated in-state and
out-of-state entities the same. General Motors Corp. v. Tracy, 519 U.S. 278,
298–99, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997); CTS Corp. v. Dynamics
Corp. of Am., 481 U.S. 69, 88, 107 S.Ct. 1637, 95 L.Ed.2d 67(1987); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471–72, 101
S.Ct. 715, 66 L.Ed.2d 659 (1981) (rejecting a claim of discrimination
because the challenged statute “regulate[d] evenhandedly ... without regard
to whether the [commerce came] from outside the State”). Ohio tolls the
statute of limitations for a defendant outside of the State regardless of
whether he once resided in Ohio or not.
Garber v. Menendez, 888 F.3d 839, 843 (6th Cir.2018), cert. denied, 139 S.Ct. 1261, 203
L.Ed.2d 276 (2019).
{¶34} The Sixth Circuit found Ohio’s tolling statute to be one of the policy choices
that provides benefits to residents. “But the States’ ability to attract and retain residents
through policy choices has long been considered a healthy byproduct of the laboratories
of democracy in our federalism-based system of government, not a sign of
unconstitutional protectionism.” Id. at 844. The Court explained that the type of cases that
violate the Commerce Clause are those where “ ‘the State interfered with the natural
functioning of the interstate market either through prohibition or through burdensome
regulation.’ ” Id. quoting McBurney v. Young, 569 U.S. 221, 235, 133 S.Ct. 1709, 185
L.Ed.2d 758 (2013). The tolling provision of R.C. 2305.15(A) as applied to the statute of
limitations is not the type of case that fits within the “ ‘common thread’ of the court’s
dormant Commerce Clause.” Id. at 845.
{¶35} The Court rejected the argument that Bendix requires the Court to invalidate
the tolling provision. It explained that the Bendix decision involved a foreign corporation
Scioto App. No. 20CA3903 21
and the tolling provision “forced out-of-state companies like Midwesco to face liability
indefinitely as a cost of doing business across state lines. The Court held that this
favoritism imposed a ‘significant’ burden on interstate commerce that, measured by Pike
balancing, outweighed any local benefit of the law.” (Citations omitted.) Id. at 846. The
Court found that the tolling statute did not, “impose a cost on a traditional interstate
business transaction in the same way” to Dr. Menendez. Dr. Menendez lived in Ohio and
treated an Ohio resident in Ohio. “The application of the statute does not lead to favoritism
toward in-state firms over out-of-state ones. It merely creates a benefit for residents of
Ohio.” Id.
{¶36} The Sixth Circuit reversed the district court’s decision. For purposes of the
tolling provision in R.C. 2305.15(A), an Ohio resident’s decision to permanently leave
Ohio to move to another state does not implicate the Commerce Clause, nor does the
statute ban travel or prevent individuals from permanent transport across state lines. Id.
at 845 (as for any “travel ban,” the Court rejected Dr. Menendez’s speculative argument
that R.C. 2305.15(A) “dissuaded many Ohio doctors from retiring to Florida” and instead
found that “the North to South traffic on Interstate 75, we suspect, provides a long proof
to the contrary, and the invalidation of this tolling provision, we also suspect, would not
hasten that traffic”). Like Dr. Menendez, Bryan left Ohio to live permanently in another
state. His move did not implicate the Commerce Clause.
{¶37} We find that although the trial court’s decision here was a thoughtful and
considered one, it erred in deciding that the tolling provision in R.C. 2305.15(A) did not
apply to Bryan’s absence from Ohio. The plain language of the statute provides that the
time of Bryan’s absence from Ohio shall not be computed as any part of a period within
Scioto App. No. 20CA3903 22
which the action must be brought. Bryan was absent from Ohio to pursue romance in
Nevada. Eventually he married and found a job there. Bryan was not engaged in
commerce so as to implicate the Commerce Clause. Because the cause of action accrued
on April 3, 2016, Bryan was absent from Ohio from June 18, 2016 to August 8, 2018, and
the lawsuit was filed on September 11, 2018, it was filed well within the two-year statute
of limitations of R.C. 2305.10. We sustain Matthew Dewine’s assignment of error and
reverse the judgment.
IV. CONCLUSION
{¶38} We sustain Matthew Dewine’s assignment of error, reverse the judgment of
the trial court, and remand for further proceedings consistent herewith.
JUDGMENT REVERSED.
CAUSE REMANDED.
Abele, J., dissenting:
{¶39} I respectfully dissent. Although I readily acknowledge that the principal
opinion is well-reasoned and sets forth a detailed chronology of all pertinent cases on this
topic, I believe we should follow applicable Ohio Supreme Court authority until instructed
to do otherwise.
{¶40} In the case sub judice, on April 3, 2016 Defendant-Appellee Bryan Dewine
(Bryan) operated a pick-up truck and struck a guardrail. Bryan’s son and passenger,
Plaintiff-Appellant Matthew Dewine (Matthew), sustained injuries. At that time, both father
and son resided in Ohio. On June 18, 2016, Bryan relocated to Nevada and obtained
employment, a Nevada driver’s license, a spouse and a permanent address at his
spouse’s home.
Scioto App. No. 20CA3903 23
{¶41} On August 8, 2018, Bryan returned to Ohio and resided with Matthew. At
this time, Bryan was served with a copy of the complaint in this action. Shortly thereafter,
Bryan requested summary judgment based upon the expiration of the statute of
limitations. Matthew, however, asserted that Ohio’s tolling statute, R.C. 2305.15, tolls the
statute of limitations when a defendant is out-of-state.
{¶42} After consideration, the trial court determined that the tolling statute did not
apply in this case because at no time did Bryan conceal his whereabouts. As the court
pointed out, Bryan openly married, lived, worked, obtained a Nevada driver’s license and
became a permanent Nevada resident. The court did note, however, that if Bryan had
temporarily left Ohio, the statute of limitations would toll during Bryan’s absence. In its
decision, the trial court relied on Johnson v. Rhodes, 89 Ohio St.3d 540, 2000-Ohio-235,
733 N.E.2d 1132, which held that the R.C. 2305.10 limitations period is tolled when an
individual temporarily leaves the state of Ohio (and for non-business reasons). See, also,
Wetzel v. Weyant (1975), 41 Ohio St.2d 135, 323 N.E.2d 711. Thus, the trial court
determined that, because Bryan had permanently moved to Nevada and Matthew knew
this fact, the tolling statute should not apply in the case at bar. Rather, the tolling statute
should apply to individuals who temporarily leave Ohio for non-business purposes.
{¶43} After my review, I believe that in the case sub judice the trial court correctly
interpreted and followed the applicable controlling authority. In general, the tolling statute
is intended for situations when a diligent plaintiff cannot bring an action because a
defendant absconded or concealed herself or himself in order to avoid service of process.
That is not the situation currently before us, however. Instead, here Matthew openly
resided in Nevada as a permanent resident and within reach of Ohio’s long-arm
Scioto App. No. 20CA3903 24
jurisdiction.2 To hold otherwise could result in an endless tolling of the statute of
limitations, a situation that the Johnson court apparently wished to avoid.
{¶44} Accordingly, in light of the foregoing, I believe that the trial court correctly
concluded that the tolling statute should apply only to temporary absences rather than to
a permanent change of residence, and, thus, should not apply in the case at bar.
2 See, e.g., Civ.R. 4.3(A)(3) (service of process may be made outside this state * * * in any action in this
state upon a person who * * * is a nonresident of this state. “Person” includes an individual * * * who * * *
causing tortious injury * * * arising out of the ownership, operation, or use of a motor vehicle or aircraft in
this state.)
Scioto App. No. 20CA3903 25
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the SCIOTO
COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents with Dissenting Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.