COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60395, 60396 BETTY CORNUTE, Administratrix of : Estate of Clarence Cornute, II, : Deceased : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION FREIGHT SERVICE, INC., et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 28, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case Nos. 169,058/187,810 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: STANLEY L. JOSSELSON Attorney at Law 1276 West 3rd Street, #100 Cleveland, Ohio 44113 For defendant-appellees: TERESA G. STANFORD Attorney at Law 14650 Detroit Avenue, #450 Lakewood, Ohio 44107-9946 - 1 - FRANCIS E. SWEENEY, J.: Plaintiff-appellant, Betty Cornute, Administratrix of the Estate of Clarence Cornute, II, deceased, timely appeals the trial court's denial of appellant's second motion to vacate the dismissal of the originally-filed complaint in Case No. 60395. Appellant also timely appeals the trial court's dismissal of the re-filed complaint as barred by the statute of limitations in Case No. 60396. These actions have been consolidated for our review on appeal. For the reasons set forth below, we affirm the judgments of the trial court. On May 4, 1989, appellant filed a complaint alleging that her decedent suffered a wrongful death on January 15, 1988. On Sep-tember 14, 1989, a case management conference was held, and appel-lant failed to appear. On September 20, 1989, the lower court dismissed the action without prejudice for appellant's failure to prosecute. Appellant did not appeal from the trial court's dis-missal entry. On November 17, 1989, appellant filed a motion to vacate the dismissal of the action. The trial court overruled the motion to vacate on February 12, 1990. Appellant did not appeal the trial court's judgment overruling the motion to vacate. - 2 - Appellant re-filed her complaint on April 6, 1990. The trial court then granted appellees' motion to dismiss the com- plaint on the ground that the two-year statute of limitations had run. On June 21, 1990, appellant filed a second motion to vacate in the original action, which was denied by the trial court. Appellant now timely appeals the trial court's denial of her second motion to vacate and the trial court's dismissal of her re-filed complaint, raising four assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISMISSED THIS ACTION (CASE NUMBER 169058) AT A CASE MANAGEMENT CONFERENCE WITH- OUT PRIOR NOTICE TO COUNSEL IN VIOLATION OF THE LOCAL RULES OF CUYAHOGA COUNTY COMMON PLEAS COURT, RULE 21(H) AND (I). Appellant argues that the trial court erred in failing to give notice to counsel prior to dismissing the action without prejudice pursuant to Loc. R. 21(H)(1) of the Cuyahoga County Court of Common Pleas, General Division. However, an appellate court need not con-sider a question not presented, considered or decided by a lower court. Hungler v. Cincinnati (1986), 25 Ohio St. 3d 338. Since appellant did not raise this argument by way of a direct appeal of the trial court's dismissal, or in her two motions to vacate the dismissal, she cannot now raise such issue for the first time on appeal. Accordingly, Assignment of Error No. I is overruled. - 3 - ASSIGNMENT OF ERROR NO. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADVISED COUNSEL FOR THE PLAINTIFF- APPELLANT DURING AN EX-PARTE COMMUNICATION THAT UPON COUNSEL FILING A MOTION TO VACATE IT WOULD RE-INSTATE THE CASE WHICH IT HAD PREVIOUSLY DISMISSED (SEE ASSIGNMENT OF ERROR NUMBER 1) AND THEN FAILED TO DO SO. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO RULE ON PLAINTIFF'S MOTION TO VACATE (FILED ON NOVEMBER 7, 1989, AFTER THE EX-PARTE COMMUNICATION DESCRIPTION CON- TAINED IN ASSIGNMENT OF ERROR NUMBER 2) UNTIL AFTER THE STATUTE OF LIMITATIONS HAD RUN (JANUARY 15, 1990), FAILING TO RULE ON THE MOTION UNTIL FEBRUARY 15, 1990. Appellant apparently argues that the trial court erred in not granting the second motion to vacate the dismissal on the ground that his first motion to vacate was not timely ruled upon within thirty days pursuant to R.C. 2701.02. As a result, appel- lant alleges the ruling came after the applicable statute of limitations ran for re-filing the complaint. Appellant also argues that she did not re-file the action because the trial court, in an ex-parte communication, instructed her that the action would be re-set. These arguments are without merit. To prevail on a Civ. R. 60(B) motion, the movant must demon- strate that (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time and, where - 4 - the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146. In appellant's second motion to vacate, appellant raises no operative facts demonstrating that she is entitled to relief from the judgment of dismissal under Civ. R. 60(B)(1) through (5). Appellant's argument as to why she did not subsequently re-file the action are not relevant to the trial court's dismissal with- out prejudice of the action for failure of appellant's counsel to appear at a case management conference. Furthermore, that part of appellant's second motion to vacate which argues that notice to appear in court was not re- ceived was raised in the first motion to vacate judgment. When a motion to vacate has been denied, principles of res judicata prevent relief on successive, similar motions raising issues which were or could have been raised originally. Brick Proces- sors, Inc. v. Culbertson (1981), 2 Ohio App. 3d 478. Therefore, the trial court did not err in overruling the appellant's second motion to vacate judgment. Assignments of Error No. II and III are overruled. - 5 - ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISMISSED THE PLAINTIFF/APPELLANT'S SECOND LAWSUIT AGAINST THE DEFENDANT WILLIAM GRAHAM AFTER DENYING THE PLAINTIFF/APPELLAN- T'S MOTION TO PRODUCE, THUS PROHIBITING THE PLAINTIFF/APPELLANT FROM INVOKING THE SAVINGS STATUTE CONTAINED IN OHIO REVISED CODE SEC- TION 2305.15. Appellant contends the trial court erred in granting appel- lees' motion to dismiss the second complaint filed by appellant on the ground that R.C. 2305.15 should serve to toll the statute of limitations. Specifically, appellant contends that defendant William Graham was absent from the state so as to prevent the statute from running. This argument is without merit. R.C. 2305.15 provides, in pertinent part, that 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. In order for a plaintiff to avail himself of R.C. 2305.15, he must prove that the defendant has, in fact, departed from the state and prove how long the defendant was absent. Conway v. Smith (1979), 66 Ohio App. 2d 65; Walter v. Johnson (1983), 10 Ohio App. 3d 201. In the present case, the wrongful death cause of action arose on January 15, 1988. Appellant filed her second complaint on April 6, 1990, over two months after the statute of limita- tions ran out. See, R.C. 2125.01. - 6 - While appellant alleges that the statute was tolled due to the defendant's absence from the state, she has submitted no evidence showing that appellee was absent from the state. There- fore, we conclude that there is no competent evidence to indicate whether the defendant departed from the state and, if so, when he left. Accordingly, since this action was barred by the statute of limi-tations and since appellant did not satisfy her burden of showing that the defendant was absent from the state, we find the trial court did not err in granting appellees' motion to dismiss the complaint. Assignment of Error No. IV is overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. NAHRA, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .