[Cite as Parsons v. Bishop, 2022-Ohio-3997.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

John Parsons, :

Plaintiff-Appellant, :

 No. 22AP-266

v. : (C.P.C. No. 19CV-9329)

Alan M. Bishop, : (ACCELERATED CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on November 8, 2022

On brief: The Keating Firm, LTD, Bradley D. Keating, and 

Ian J. Stegmaier, for appellant.

On brief: Joel S. McPherson, for appellee.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

{¶ 1} Plaintiff-appellant, John Parsons, appeals from a decision and entry granting 

summary judgment in favor of defendant-appellee, Alan M. Bishop. For the following 

reasons, we affirm. 

{¶ 2} On November 20, 2019, appellant filed a complaint alleging that on 

November 7, 2017, he sustained bodily injuries as the result of a motor vehicle collision 

caused by appellee's negligence. Appellant further alleged that appellee's absence from the 

state of Ohio tolled the statute of limitations for at least 13 days, making his complaint 

timely under R.C. 2305.15(A). Appellee subsequently filed an answer denying all material 

allegations and asserting, among other affirmative defenses, that appellant's complaint was 

barred by the applicable statute of limitations. 
No. 22AP-266 2

{¶ 3} Appellee filed a motion to dismiss on March 9, 2020, asserting that 

appellant's complaint was not filed within the two-year limitations period of 

R.C. 2305.10(A). Appellant attached to his motion his affidavit attesting that between 

November 7, 2017 and November 7, 2019, he was outside the state of Ohio less than 13 days. 

On April 17, 2020, appellant filed a memorandum contra, arguing that the two-year statute 

of limitations was tolled pursuant to R.C. 2305.15(A) as a result of the time appellee spent 

outside Ohio. Appellant requested that the trial court refrain from ruling on the motion to 

dismiss until he had the opportunity to conduct necessary discovery to support his tolling 

argument. Specifically, appellant asserted that because the fact of appellee's absence from 

the state was exclusively within appellee's knowledge, he could not properly impeach or 

contradict appellee's affidavit without deposing him. Appellant averred that he "expects 

that the need for critical discovery requests will arise only after acquiring the facts from 

[appellee] at his deposition pursuant to [Civ.R.] 56(F)." Appellant further averred that he 

"had not been afforded the opportunity to take such depositions to date." (Apr. 17, 2020 

Memo in Opp. to Def.'s Mot. Dismiss at 1, 3.) 

{¶ 4} On November 6, 2020, the parties filed a joint motion to continue the 

November 17, 2020 final pre-trial conference and December 14, 2020 trial dates "to allow 

for depositions to respond to the pending Motion to Dismiss." (Nov. 6, 2020 Agreed Mot.

to Continue Settlement Pretrial and Trial Date at 1.) On November 16, 2020, the trial court 

granted the motion and amended the case schedule to reflect April 20, 2021 and May 3, 

2021 as the new dates for final pre-trial conference and trial, respectively. 

{¶ 5} On February 18, 2021, appellee filed a reply to appellant's April 17, 2020 

memorandum contra, averring that appellant deposed appellee on December 4, 2020 and 

that appellee testified that he was not out of the state of Ohio for 13 days in the two years 

following the automobile accident.1 Appellee further asserted that because appellant had 

failed to provide any evidence demonstrating that the applicable two-year statute of 

limitations was tolled pursuant to R.C. 2305.15, the trial court should dismiss appellant's 

complaint with prejudice. 

1

 In their briefing, both parties aver that appellee was deposed on December 4, 2020 and that he testified 

that he was not out of the state of Ohio for more 13 days in the 2-year period following the accident. 

However, the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a transcript of the 

December 4, 2020 deposition. 
No. 22AP-266 3

{¶ 6} In accordance with the amended case schedule, appellant and appellee filed 

their final pre-trial statements on April 6 and 7, 2021, respectively. In his statement, 

appellee noted that his motion to dismiss remained pending and that appellant had yet to 

provide any evidence that the statute of limitations was tolled. On April 29, 2021, the trial 

court sua sponte amended the case schedule, setting the final pre-trial conference for 

November 18, 2021 and trial for December 6, 2021. 

{¶ 7} On June 29, 2021, the trial court sua sponte issued an order converting 

appellee's motion to dismiss into a motion for summary judgment. In so doing, the court 

construed appellee's motion to dismiss as one under Civ.R. 12(B)(6), noted that Civ.R. 

12(B)(6) precludes consideration of any evidentiary materials outside of the complaint, and 

that appellee had presented evidence (his affidavit) outside the complaint to support his 

motion to dismiss. The trial court granted appellee 28 days to submit any supplemental 

briefing and Civ.R. 56 evidence in support of summary judgment. The court granted 

appellant an additional 28 days to file his memorandum in opposition. 

{¶ 8} Thereafter, on July 14, 2021, appellee filed a notice stating that he did not 

intend to submit any supplemental material beyond the affidavit he submitted in support 

of his motion to dismiss. Appellant did not file any supplemental briefing or evidence in 

response to the trial court's conversion order or appellee's July 14, 2021 filing. 

{¶ 9} On October 25, 2021, the parties filed a joint motion to continue the 

December 6, 2021 trial date. Noting the pending motion for summary judgment, the 

parties averred that a ruling on the motion may render trial of the matter unnecessary, or, 

alternatively, the unsuccessful party would need time to determine how to proceed, which 

could affect the trial date. On November 16, 2021, the trial court granted the motion and 

amended the case schedule to reflect May 5, 2022 and May 16, 2022 as the new dates for 

final pre-trial conference and trial, respectively. 

{¶ 10} On March 31, 2022, the trial court issued a "Decision and Entry Granting 

Defendant's Motion to Dismiss, Filed March 9, 2020." The first sentence of the decision 

states that "[t]his matter is before the Court upon Defendant's Motion to Dismiss Plaintiff's 

Complaint which the Court converted into a Motion for Summary Judgment." (Mar. 31, 

2022 Decision & Entry at 1.) Citing the Civ.R. 56 summary judgment standard, the 
No. 22AP-266 4

applicable statute of limitations, R.C. 2305.10(A), and the tolling statute, R.C. 2305.15(A), 

the trial court concluded: 

Here, Plaintiff's Complaint alleges that the accident occurred 

on November 7, 2017. Plaintiff filed this case on 

November 20, 2019, more than two years after the date of the 

accident. There is no evidence before the Court that the 

tolling provisions of R.C. 2305.15 apply such that this matter 

can be considered timely filed. Accordingly, the Court finds 

that this case is barred by the statute of limitations, and 

Defendant's Motion is hereby GRANTED.

(Decision & Entry at 3.)

{¶ 11} Appellant timely appealed the trial court's judgment. 

{¶ 12} As an initial matter, we note that appellant has failed to set forth an 

assignment of error. Pursuant to App.R. 12(A)(1)(b), appellate courts must "[d]etermine 

the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16."

Thus, generally, appellate courts will rule only on assignments of error, not mere 

arguments. Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, 

¶ 15, citing Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. Although 

appellant's failure to set forth an assignment of error would justify striking the brief and, 

unless leave was granted to correct the deficiency, dismissing the appeal, we instead elect 

to dispose of the appeal on the merits of what we conclude to be the implied assignment of 

error manifested in the argument set forth in the brief, i.e., that the trial court erred in 

granting summary judgment to appellee because appellant "has not been given sufficient 

time to discover necessary facts to rebut the motion for summary judgment." (Appellant's 

Brief at 2.) More specifically, appellant contends that "[t]here has not been sufficient time 

to discover facts necessary to rebut the claim that Appellee Bishop had not left the state of 

Ohio for more than thirteen days. To date, the only evidence entered is the deposition of 

Appellee Bishop. In this deposition, he stated he did not leave Ohio for more than thirteen 

days, however, the Appellant has not been given an opportunity to substantiate or refute 

that claim."

2 Id. at 3. 

2 Again, we note that the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a 

transcript of the December 4, 2020 deposition. 
No. 22AP-266 5

{¶ 13} Here, after properly converting appellee's motion to dismiss to one for 

summary judgment, the trial court concluded that appellee's claim was barred by the 

statute of limitations and that appellant failed to provide any evidence that the tolling 

provisions of R.C. 2305.15 applied such that appellant's complaint could be considered 

timely filed. On this basis, the trial court granted summary judgment for appellee. 

{¶ 14} This court reviews the trial court's granting of summary judgment de novo. 

Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994), citing Brown v. 

Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). When an appellate 

court reviews a trial court's disposition of a summary judgment motion, it applies the same 

standard as the trial court and conducts an independent review, without deference to the 

trial court's determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103 (10th 

Dist.1992); Brown at 711. We must affirm the trial court's judgment if any grounds the 

movant raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 

41-42 (9th Dist.1995). 

{¶ 15} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if 

the pleadings, depositions, answers to interrogatories, written admission, affidavits, 

transcripts of evidence, 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." Accordingly, summary judgment is appropriate 

only under the following circumstances: (1) no genuine issue of material fact remains to be 

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing 

the evidence most strongly in favor of the nonmoving party, reasonable minds can come to 

but one conclusion, that conclusion being adverse to the non-moving party. Harless v. 

Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). 

{¶ 16} "[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record before the 

trial court which demonstrate the absence of a genuine issue of fact on a material element 

of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). "The 

requirement that a party seeking summary judgment disclose the basis for the motion and 

support the motion with evidence is well founded in Ohio." Mitseff v. Wheeler, 38 Ohio 

St.3d 112, 115 (1988). Thus, the moving party may not fulfill its initial burden simply by 
No. 22AP-266 6

making a conclusory assertion that the nonmoving party has no evidence to prove its case. 

Dresher at 293. Rather, the moving party must support its motion by pointing to some 

evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the 

nonmoving party has no evidence to support its claims. Id. If the moving party fails to 

meet its initial burden, summary judgment is inappropriate; however, if the moving party 

satisfies its initial burden, then the nonmoving party has a reciprocal burden outlined in 

Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if 

the nonmovant does not so respond, summary judgment, if appropriate, shall be entered 

against the nonmoving party. Id. 

{¶ 17} Appellant alleged in his complaint that the automobile accident causing his 

bodily injuries occurred on November 7, 2017. Appellant does not dispute that the statute 

of limitations for an action for bodily injury is two years. R.C. 2305.10. Thus, appellant 

normally would have had to assert his claim, at the latest, by November 7, 2019. Appellant 

did not file his complaint until November 20, 2019, 13 days beyond the two-year statute of 

limitations. Nevertheless, appellant claims that appellee's absence from the state of Ohio 

tolled the statute of limitations for at least 13 days, making his complaint timely under R.C. 

2305.15. R.C. 2305.15(A) provides in part: 

When a cause of action accrues against a person, if the person 

is out of the state * * * the period of limitation for the 

commencement of the action as provided in sections 2305.04 

to 2305.14 * * * of the Revised Code does not begin to run until 

the person comes into the state * * *. 

{¶ 18} A determination of the applicability of R.C. 2305.15(A) requires facts 

concerning the circumstances of appellee's presence and absence from Ohio. Kelley v. 

Stauffer, 10th Dist. No. 10AP-235, 2010-Ohio-4522, ¶ 13, citing Grover v. Bartsch, 170 

Ohio App.3d 188, 2006-Ohio-6115, ¶ 23. Here, appellant's complaint alleged facts that 

would support the application of R.C. 2305.15(A). However, appellee presented affidavit 

testimony refuting those allegations in support of his motion for summary judgment. As 

appellee satisfied its initial burden under Civ.R. 56(C), appellant had a reciprocal burden 

to set forth specific facts demonstrating a genuine issue for trial. Appellant never provided 

any evidence to support his tolling claim. 
No. 22AP-266 7

{¶ 19} To the extent appellant relies on Civ.R. 56(F) to support his contention that 

he was denied the opportunity to conduct discovery to dispute appellee's claim that he was 

not outside the state for more than 13 days, we note that Civ.R. 56(F) provides that 

"[s]hould it appear from the affidavits of a party opposing the motion for summary 

judgment that the party cannot for sufficient reasons stated present by affidavit facts 

essential to justify the party's opposition, the court may refuse the application for judgment 

or may order a continuance to permit affidavits to be obtained or discovery to be had or 

may make such other order as is just." "Civ.R. 56(F) allows a party the opportunity to 

request additional time to obtain through discovery the facts necessary to adequately 

oppose a motion for summary judgment." Fifth Third Mtge. Co. v. Salahuddin, 10th Dist. 

No. 13AP-945, 2014-Ohio-3304, ¶ 18, citing Carolina Tobacco Co. v. Petro, 10th Dist. No. 

04AP-1125, 2006-Ohio-1205. " 'If, however, a party fails to avail itself of the provision of 

Civ.R. 56(F), summary judgment appropriately is granted to the moving party.' " Id.,

quoting Steele v. Mara Ents., Inc., 10th Dist. No. 09AP-102, 2009-Ohio-5716, ¶ 30, citing 

Benjamin v. Deffet Rentals, Inc., 66 Ohio St.2d 86, 92 (1981). "A party who fails to seek 

relief under Civ.R. 56(F) in the trial court does not preserve his rights under the rules on 

appeal." Id., citing Jackson v. Walker, 9th Dist. No. 22996, 2006-Ohio-4351, ¶ 17, citing 

R&R Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789 (6th Dist.1993). 

{¶ 20} Appellee filed his motion to dismiss on March 9, 2020 supported by his 

affidavit refuting the tolling claim appellant asserted in his complaint. In his April 17, 2020 

response, appellant, alluding to Civ.R. 56(F), requested that the trial court refrain from 

ruling on the motion until he could conduct necessary discovery, i.e, depose appellee, to 

refute appellee's affidavit testimony. Seven months later, on November 16, 2021, the trial 

court granted the parties' joint November 6, 2021 motion requesting a continuance to allow 

for depositions to occur. Three months later, on February 18, 2021, appellee asserted in a 

filing that appellant had deposed him on December 4, 2020, and that his testimony echoed 

that provided in the affidavit he filed with his motion to dismiss.3 Four months later, on 

June 29, 2021, the trial court converted appellee's motion to dismiss to one for summary 

judgment, granted appellee 28 days to file supplemental briefing and Civ.R. 56 evidence, 

3 We again note that the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a 

transcript of the December 4, 2020 deposition. 
No. 22AP-266 8

and granted appellant 28 days to respond to any supplemental briefing and evidence 

provided by appellee. Within the 28-day period prescribed by the trial court, appellee on 

July 14, 2021 provided notice that he would not file any supplemental evidence beyond his 

previously filed affidavit. Appellant filed nothing in response. Three months after 

appellee's filing, the parties on October 25, 2021 filed a joint motion to continue the trial 

set for December 6, 2021. Although the motion mentions the pending summary judgment 

motion, it does not expressly discuss discovery issues or Civ.R. 56(F). The trial court 

granted the motion on November 16, 2021. The trial court record reveals no further filings 

by either party prior to the trial court's March 31, 2022 judgment granting summary 

judgment to appellee. 

{¶ 21} A review of the record reveals that appellant never filed a formal Civ.R. 56(F)

motion seeking additional time to conduct the discovery he now contends he needed to 

respond to the summary judgment motion. Instead, appellant filed a motion to continue 

the trial date. Even construed as a Civ.R. 56(F) motion, said rule required appellant to 

submit an affidavit stating the reasons justifying an extension. Salahuddin, 10th Dist. No. 

13AP-945, 2014-Ohio-3304, ¶ 20, citing Cook v. Toledo Hosp., 169 Ohio App.3d 180, 2006-

Ohio-5278 (6th Dist.), and Castrataro v. Urban, M.D., 10th Dist. No. 03AP-128, 2003-

Ohio-4705. In the motion to continue the trial date, appellant alluded to the pending 

motion for summary judgment, but did not specifically request additional time to conduct 

discovery. Moreover, even had appellant done so, he did not file an affidavit. Under Civ.R. 

56(F), the motion to continue failed on that basis alone. Id., citing O'Brien v. Sutherland 

Bldg. Prods., 10th Dist. No. 93AP-948 (Mar. 24, 1994), citing Grange Mut. Cas. Co. v. State 

Auto Mut. Ins. Co., 13 Ohio App.3d 217 (1st Dist.1983). 

{¶ 22} It appears from the record that appellant had ample time to conduct 

discovery. Appellant was aware of appellee's affidavit testimony rebutting his tolling claim 

as early as March 9, 2020. After the trial court granted appellant additional time to conduct 

discovery, he allegedly deposed appellee on December 4, 2020. When the trial converted 

appellee's motion to dismiss to one for summary judgment, it afforded both parties 

additional time to file evidence in support of their positions. Appellant filed nothing to 

rebut appellee's evidence. The trial court did not grant summary judgment for appellee 

until March 31, 2022, more than two years after appellee first provided evidence 
No. 22AP-266 9

challenging appellant's tolling claim. Because appellant had the opportunity to conduct 

discovery and did not avail himself of the procedures in Civ.R. 56(F), we find no merit to 

his argument that he was not afforded the opportunity to conduct discovery. Accordingly, 

we overrule appellant's implied assignment of error. 

{¶ 23} Having overruled appellant's sole assignment of error, we hereby affirm the 

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

DORRIAN and JAMISON, JJ., concur.