Kelley v. StaufferKelley v. Stauffer
Marshall, Dennehey, Warner, Coleman & Goggin, and Samuel G. Casolari, Jr., for appellee.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
KLATT, J.
{¶1} Plaintiffs-appellants, James Kelley and Myron Miller, apрeal from a judgment of the Franklin County Court of Common Pleas dismissing their complaint against defendant-appellee, Jason L. Stauffer. Becаuse the trial court did not err in dismissing appellants’ complaint based upon the two-year statue of limitations contained in
{¶2} On October 22, 2009, aрpellants filed a complaint in the trial court, in which they alleged that they were injured in a car accident caused by Stauffer‘s negligence. They alleged that the car accident occurred on October 12, 2007.
{¶4} The trial court granted Stauffer‘s motion and dismissed appellants’ complaint. The trial court rejected appellants’ claim that Stauffer‘s absence from the state tolled the statute of limitations because appellants’ unsupported beliefs about Stauffer‘s absence from the stаte were not alleged in the complaint. After the trial court entered judgment, appellants filed a motion for reconsideration, which the trial court also denied.
{¶5} Appellants appeal the dismissal of their complaint and assign the following error:
THE TRIAL COURT ERRED IN PREMATURELY SUSTAINING DEFENDANT‘S MOTION TO DISMISS AND DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION PRIOR TO THE CLOSURE OF DISCOVERY THEREBY PREVENTING APPELLANTS FROM ESTABLISHING THAT THE STATUTE OF LIMITATIONS HAS BEEN TOLLED.
{¶6} At the outset, we note that appellants attempt to appeal both the trial court‘s dismissal of their complaint and its denial of their motion for reconsideration. A motion for reconsideration filed after a final judgment is a nullity, and any order resulting from such a motion is also a nullity. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 381 (judgment resulting from a motiоn to reconsider filed after grant of motion to dismiss is a
{¶7} Appellants contend that the trial court erred when it dismissed their complaint on the ground that their claims were barred by the two-year statute of limitations. We disаgree.
{¶8} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court‘s standard of review is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73 (citing Assn. for the Defense of Washington Loc. School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117). A trial court must presume all factual allegations contained in the complaint to be true and must make all reasonable inferences in favor of the nonmoving party. Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 104 (citing Perez v. Cleveland (1993), 66 Ohio St.3d 397, Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, and Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100). “[A]s long as therе is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.” York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 145.
{¶10} Appellants alleged in their complaint a single car accident that caused them bodily injuries. The car accident occurred on October 12, 2007. Appellants do not dispute that the statute of limitations for an action for bodily injury is two years.
{¶11} Nevertheless, appellants claim that Stauffer‘s absence from the state of Ohio tоlled the statute of limitations for at least ten days, making their complaint timely.
{¶12}
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 оf 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 thе 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.
{¶14} Here, appellants’ complaint did not allege any facts that would support the application of
{¶15} Because appellants did not allege any facts in their complaint that would render
{¶16} Having overruled appellants’ assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and McGRATH, JJ., concur.