 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cantwell v. Frantz8/8/2001
JUDGMENT: Reversed and Remanded
Appellant Kester E. Cantwell appeals the decision of the Court of Common Pleas, Stark County, which granted summary judgment in favor of Appellee Joseph E. Frantz. The relevant facts leading to this appeal are as follows. Appellant and appellee were involved in an automobile crash at an intersection on Lincoln Way Avenue West in Stark County, Ohio, on April 11, 1998. On April 24, 2000, appellant filed a personal injury action against appellee, including a count for loss of consortium and companionship claimed by appellant's wife, Cindie Cantwell. On July 28, 2000, appellee filed a motion for summary judgment, asserting there was no genuine issue of material fact as to appellant's purported failure to file his action within the applicable statute of limitations. Additionally, on August 18, 2000, appellant filed a motion for leave to amend his complaint, in order to incorporate allegations that appellee had been out-of-state after the accrual of the cause of action, thus tolling the statute of limitations.
After allowing time for the filing of briefs on the issue of summary judgment, the trial court issued a judgment entry on September 29, 2000, concluding that appellant had been absent from the state of Ohio for a total of ten days for nonbusiness purposes, and that appellant's opportunity to file his action expired on Friday, April 21, 2000. The court thereupon ruled that appellee was entitled to judgment in his favor as a matter of law. The trial court also ruled that appellant's motion for leave to amend was moot. On October 27, 2000, appellant filed his notice of appeal, and herein raises the following two Assignments of Error:
I. THE TRIAL COURT ERRED WHEN IT MISCOUNTED DAYS DURING WHICH THE STATUTE OF LIMITATIONS WAS TOLLED WHILE DEFENDANT WAS OUT OF OHIO ON VACATION PURPOSES.
II. THE TRIAL COURT ERRED WHEN IT RULED PLAINTIFF'S MOTION TO AMEND COMPLAINT AS MOOT.
I.
The issue before us is whether summary judgment is properly granted where a defendant allegedly tolls the relevant statute of limitations via fractional "traveling days" at the beginning and end of out-of-state vacation periods. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must refer to Civ.R. 56 which provides, in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving par
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|