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Cantwell v. Frantz8/8/2001
ty must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, citing Dresher v. Burt (1996), 75 Ohio St.3d 280. It is based upon this standard that we review appellant's first Assignment of Error. The relevant tolling statute, R.C. 2305.15(A), states in pertinent part: 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 ... does not begin to run until he comes into the state or while he is so absconded or 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 a period within which the action must be brought.
The Ohio Supreme Court considered the application of R.C. 2305.15(A) to residents of Ohio who temporarily leave the state on a vacation in Wetzel v. Weyant (1975), 41 Ohio St.2d 135, 323 N.E.2d 711. The defendant in Wetzel left the State, after a cause of action accrued against him, on vacations and to attend a conference. The plaintiff failed to bring an action until after the applicable statute of limitations had passed.
However, the plaintiff argued that the statute of limitations had been tolled when the defendant left the State. The Ohio Supreme Court held that " 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." Wetzel, syllabus. The Court applied R.C. 2305.15 to toll the statute of limitations for the time that the defendant was out of state, including while the defendant was on vacation. More recently, the Ohio Supreme Court resolved a split in appellate jurisdictions by holding that the application of R.C. 2305.15 against defendants who temporarily leave Ohio for vacation or non-business purposes does not rise to an impermissible burden on interstate commerce. See Johnson v. Rhodes (2000), 89 Ohio St.3d 540. Although the issue of time computation is the subject of a number of leading cases in Ohio, in particular the decision of the Ohio Supreme Court in Greulich v. Monnin (1943), 142 Ohio St. 113, our research has provided limited discussion of the issue of partial or fractional days specifically in regard to tolling.
The Sixth District Court of Appeals tackled the subject in one 1984 unreported case, as follows: The pertinent section, R.C. 2305.15, does not specify whether absence for partial days will toll the statute of limitations. [Footnote omitted.] Prior case law in Ohio has determined that the statute of limitations will be tolled by "temporary absences" from the state. Wetzel v. Weyant (1975), 41 Ohio St.2d 135. However, the "temporary absences" mentioned in Wetzel involved periods of several whole days and entire weeks. The issue of absence for a part of a day was not addressed therein. Furthermore, this court previously ruled that absences for partial days do not serve to toll the statute of limitations. Elliott v. Davenport, unreported opinion, reported in Ohio Court of Appeals Opinions, Sixth District, V. 75, at p. 253, Lucas County Court of Appeals, C.A. No. L-78-254, decided June 22, 1979.
Therefore, the appellee's assertion that the appellant's claim is barred by the limitations period is correct. Smith v. McLaughlin,
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