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Cantwell v. Frantz8/8/2001
(Aug. 24, 1984), Lucas App.No. L-84-107, unreported, at 3.
The Seventh District Court of Appeals took a more flexible approach in Pittman v. Boley (Apr. 26, 1991), Carroll App.No. 600, unreported. In that case, a defendant took two trips to Pittsburgh, Pennsylvania, one each in 1988 and 1989, during the pertinent statute of limitations period, each trip involving two hours and ten minutes total time. The Court held on appeal that this out-of-state travel did not toll the statute of limitations. It relied on Stanley v. Stanley (1890), 47 Ohio St. 225, wherein the Ohio Supreme Court stated: The design of the statute is to give to the plaintiff the full period of the limitation, in available time, for the commencement of his action; so that, in ascertaining this period, the time the defendant is out of the state, is not computed as any part of the time given him in which to commence his action. This is in close analogy to the Roman law which, in like cases, counted only the available days, tempus utile, on which activity was possible, in ascertaining whether an action was barred by limitation or not; * * *. Id. at 230.
The Pittman Court concluded: "On the days of the two trips to Pittsburgh, certainly, activity was possible in commencing the action at hand and completing service. These two brief absences should not toll the running of the statute." Pittman at 2. However, using the same standard, the Court held that the defendant's fishing trip to New York in October 1989, in which he departed his home at 1: 00 A.M. and returned at or about midnight of the same day, did toll the statute for one day. Id. We find the Pittman view persuasive. Thus, in analyzing a partial day for tolling purposes, a court must determine whether activity was possible in commencing the action at hand and completing service on the defendant on said day. Turning to the case sub judice, appellee stated during deposition that he left with his family for a vacation in Myrtle Beach, South Carolina, at approximately 2: 00 or 3: 00 AM on July 12, 1998. He thereafter stated that he crossed the border and left Ohio by 5: 00 AM that morning, returning on the evening of July 18, 1998. Deposition at 10. The initial travel day was not included in the tolling period found by the trial court. In order to avail himself of the tolling provisions of R.C. 2305.15, the burden is on appellant to prove that appellee departed from the state and how long appellee he was absent. Wright v. Univ. Hosp. Of Cleveland (1989), 55 Ohio App.3d 227, 233; Rowe v. Artis (Jan. 8, 2001), Stark App. No. 2000CA00081, unreported. Appellee herein has stipulated that appellee's combined 1998 and 1999 July vacations would result in ten tolling days, absent the partial days at the beginning and end of each vacation. We believe appellant has at least met his burden to show that any activity in commencing the action or completing service would not have been reasonably possible on July 12, 1998, when appellee would have been on the road and absent from the state before dawn.
Therefore, the record reveals at least eleven established tolling days, which places the expiration date for the filing of appellant's action at April 22, 2000, which was a Saturday. Hence, the next open filing day would have been April 24, 2000, the actual date utilized. Therefore, we find error in the trial court's grant of summary judgment on statute of limitation grounds. Appellant's First Assignment of Error is sustained.
II.
Based on our holding in regard to Appellant's First Assignment of Error, we find that the trial court should have addressed the merits of appellant's motion to amend his complaint, rather than dismissing the motion as moot. Appellant
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