COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61134 WOMEN'S FEDERAL SAVINGS BANK : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION AUSTIN E. GUIRLINGER, et al : [Donlyn Guirlinger sole appellant] : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 1, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 179,844 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: NANCY M. CZUPIK RICHARD A. PRAYSON THOMAS G. McNALLY Attorneys at Law 120 Public Square Cleveland, Ohio 44113 For defendant-appellant: DOUGLAS S. ROBERTS Attorney at Law 471 East Broad Street Suite 1601 Columbus, Ohio 43215 (Cont.) - 0 - (Cont.) For amicus curiae Ohio F. DANIEL BALMERT Savings and Loan League: Attorney at Law 2100 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114-1724 STEVEN W. MERSHON Attorney at Law 52 East Gay Street Post Office Box 1008 Columbus, Ohio 43216-1008 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Donlyn Guirlinger, timely appeals the trial court's granting of plaintiff-appellee Women's Federal Sav- ings Bank's motion for summary judgment in favor of appellee on appellee's complaint and the denial of appellant's motion to dis- miss the complaint for lack of personal jurisdiction. For the reasons set forth below, we affirm the judgment of the trial court. The pertinent facts are as follows: On July 13, 1978, to induce appellee to loan Greenleaf Apart-ments, Ltd., an Ohio limited partnership, the amount of $564,000 to build an apartment complex in Toledo, Ohio, appellant signed a separate Guaranty Agreement agreeing to unconditionally guarantee payment of the loan made by appellee to Greenleaf Apartments, Ltd. The guarantee includes waiver by appellant of "any right or claim of right to cause a marshalling of Borrower's - 2 - assets or to require Lender to proceed against Guarantor in any particular order." The appellant further agreed that any notice, demand or request by the lender was to be made at the address stated at the end of the guarantee. The end of the guarantee states the ad- dress of appellant to be 2040 South Hamilton Road, Columbus, Ohio. Appellant also agreed that the guarantee was to be gov- erned by and construed in accordance with the laws of the State of Ohio. Greenleaf Apartments, Ltd. defaulted on the loan on April 1, 1989, and appellee commenced foreclosure proceedings on May 2, 1989. Appellee filed the complaint against appellant and Austin Guirlinger on their guarantee on November 22, 1989. The trial court denied appellant's motion to dismiss the complaint on the ground that appellant lacked personal jurisdiction over appellee and granted appellee's motion for summary judgment in favor of appellee on appellee's complaint. Appellant Donlyn Guirlinger now timely appeals, raising three assignments of error for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT-APPELLANT'S MOTION TO DISMISS AND ENTERED JUDGMENT AGAINST DEFENDANT-APPELLANT DONLYN GUIRLINGER IN FAVOR OF PLAINTIFF- APPELLEE WOMEN'S FEDERAL SAVINGS BANK, FKA WOMEN'S FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEVELAND. - 3 - Appellant alleges the trial court erred in overruling her motion to dismiss for lack of personal jurisdiction on the grou- nds that (1) she is a resident of Florida and (2) her actions in exe-cuting the guarantee did not constitute the "minimum con- tacts" necessary for an Ohio court to obtain in personam juris- diction over her. This argument is without merit. R.C. 2307.382(A), Ohio's Long-Arm Statute, states in perti- nent part: A court may exercise personal jurisdiction over a person who acts directly or by an age- nt, as to a cause of action arising from the person's: (1) Transacting any business in this state. In determining whether a single act or transaction of a defendant is within the due process limits of a "long-arm sta- tute," the following criteria are to be considered: (1) The defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) The cause of action must arise from the defendant's activities there; and (3) The acts of the defendant or conse- quences caused by the defendant must have a substantial enough connection with the forum state to make the exer- cise of jurisdiction over the defendant reasonable. Cincinnati Art Galleries v. Fatzie (1990) 70 Ohio App.3d 696, 699. - 4 - In the present case, the facts demonstrate that the executed guarantee was delivered to Ohio and was inducement for a loan to be made in Ohio. Thus, we find that the first standard was met as appellant purposefully transacted business in Ohio and reason- ably foresaw causing a consequence in Ohio. The second standard has also been met as the Ohio loan defaulted on by the borrower in Ohio would have never occurred if appellant had not executed the guarantee. Finally, we find that the third standard is met that the exercise of jurisdiction over appellant is reasonable as appellant agreed that all notices concerning the guarantee were to be served upon the parties at an Ohio address and agreed that the law of Ohio would govern the guarantee. Thus, the appellant should have anticipated that a cause of action for breach of the guarantee would be brought in Ohio courts. Accordingly, we conclude that the trial court did not err in denying appellant's motion to dismiss for lack of personal juris- diction of appellant. Assignment of Error I is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED WHEN IT GRANTED THE PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDG- MENT AGAINST DEFENDANT-APPELLANT DONLYN GUIR- LINGER. Appellant argues that she has a legitimate defense to appel- lee's claim which should have precluded the trial court's grant- ing of appellee's motion for summary judgment. Specifically, - 5 - appellant contends that appellee impaired the collateral that secured the obligation, thus automatically discharging her as a guarantor. This argument is without merit. R.C. 1303.72(A)(2) provides: The holder discharges any party to the instrument to the extent that without such party's consent the holder: * * * (2) unjustifiably impairs any colla- teral for the instrument given by or on behalf of the party or any person again- st whom he has a right of recourse. The Ohio Supreme Court has held that a guarantor may, in advance, consent to the impairment of collateral and thereby wai- ve a defense to her liability based on such impairment. Buckeye Fed. S. & L. Assn. v. Guirlinger (1991), 63 Ohio St.3d 312, 317. In Guirlinger, the supreme court held that appellee/Guirlinger waived the defense of impairment of collateral, in advance, by the express language of the Guaranty Agreement. Id. at 316. Similarly, we find that appellant in the present case has, in advance, waived the defense of impairment of collateral by the 1 express language of the Guaranty Agreement. 1 The guarantee of the loan to Greenleaf Apartments, Ltd. stated, in pertinent part: 4. This Guaranty shall be construed as an absolute and unconditional guaranty of pay- ment, up to the aforementioned amount, with- out regard to the validity, regularity, or enforceability of any obligation or purported obligation of Borrower. Lender shall have its remedy under this Guaranty without being obligated to resort first to any security or - 6 - to any other remedy or remedies to enforce payment or collection of the obligations her- eby guaranteed, and may pursue all or any of its remedies at one or at different times. * * * 6. In the event of default by Borrower under the Mortgage Note, Mortgage, or any other instrument or agreement which documents the loan, Lender may at its option (a) proceed against Borrower; (b) proceed against or ex- haust any security held from Borrower; or (c) pursue any other remedy in Lender's power whatsoever. Guarantor waives any defense arising by reason of any disability, or other defense of Borrower, or by reason of the ces- sation from any cause whatsoever of the lia- bility of Borrower. Until the indebtedness and obligations of Borrower to Lender under said Note, Mortgage, and other loan documents shall have been paid in full and fulfilled, Guarantor shall have no right of subrogation, and waives any right to enforce any remedy which Lender now has or may hereafter have against Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by Lender. Guarantor waives all presentments, demands for perfor- mance and payment, notices or non-performance and non-payment, protests, notices of dis- honor, and notices of acceptance of this Gua- ranty and of the existence, creation or in- curring of new or additional indebtedness and indulgences and notices of every kind. Guar- antor covenants to cause Borrower to maintain and preserve the enforceability of any in- struments now or hereafter executed in favor of Lender, and to take no action of any kind which might be the basis for a claim that Guarantor has any defense hereunder in con- nection with the above-mentioned loan doc- uments. Guarantor hereby agrees to indemnify Lender against any and all loss, cost or ex- pense, by reason of the assertion by Borrower of any defense to its obligations under said loan documents, or resulting from the attempted assertion by Guarantor of any de- fense hereunder based upon any such action or inaction of Borrower. Guarantor waives any - 7 - Moreover, the supreme court in Guirlinger also held that a creditor not in possession of collateral cannot be liable for its unjustified impairment. Id. at syllabus. Thus, since the appel- lee/creditor was not in possession and control of the collateral, appellee cannot be held liable for its unjustified impairment. Accordingly, Assignment of Error II is overruled. right or claim of right to cause a marshal- ling of Borrower's assets of to require Lend- er to proceed against Guarantor in any par- ticular order. No delay on the part of Lend- er in the exercise of any right, power or privilege under the loan documents herein- above referred to with the Borrower or under this Guaranty shall operate as a waiver of any such privilege, power or right. * * * 13. Guarantor hereby agrees that until all of the terms, convenants and conditions of this Guaranty are fully performed, the Guar- antor's obligations hereunder shall not be released, in whole or in part, by any act or thing which might, but for this provision, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any wai- ver, extension (sic.), modification, forbear- ance or delay or other act or omission of Lender or its failure to proceed promptly or otherwise, or by reason of any action taken or omitted or circumstances which may or mig- ht vary the risk of or affect the rights or remedies of Guarantor, or by reason of any further dealings between Borrower or Lender, relating to the Mortgage Note, Mortgage or other security documents, or otherwise; and Guarantor hereby expressly waives and surren- ders any defense to liability hereunder based upon any of the foregoing acts, omissions, things, agreements or waiver of any of them, it being the purpose and intent of the par- ties hereby that the obligations of the Guar- antor hereunder are absolute and uncondition- al under any and all circumstances. - 8 - ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED WHEN IT FAILED TO CON- DUCT AN EVIDENTIARY HEARING PRIOR TO THE COU- RT'S DECIDING THE PENDING MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT. Appellant contends the trial court erred in ruling on the motions to dismiss and for summary judgment without conducting an evidentiary hearing to receive rebuttal evidence from appellee as to whether appellant was a resident of the State of Ohio and whether appellee impaired the collateral that secured its loan to Greenleaf Apartments. Civ. R. 56 provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one con- clusion and, viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Johnson v. Great American Ins. Co. (1988), 44 Ohio App.3d 71. "Although a party seeking summary judgment must inform the trial court of the basis for its motion, the movant need not necessarily support its motion with evidentiary materials which directly negate its opponent's claim." Id. at 73 (citing Celatex Corp. v. Catrett [1986], 477 U.S. 319, 323). "Rather, the movant may sometimes meet its burden by pointing out to the trial judge - 9 - 'that there is an absence of evidence to support the nonmoving party's case.'" Id. In the present case, appellant argues that appellee was required to rebut the affidavit of Austin Guirlinger which stated that appellant was a Florida resident at the time that the guar- antee was executed and that she signed her name by virtue of a power of attorney. However, as we fully discussed in Assignment of Error I, the express language of the guarantee provides over- whelming evidence for the trial court to conclude that appellee had personal jurisdiction over appellant under the "long-arm" statute. Furthermore, as we fully discussed in Assignment of Error II, the language of the guarantee provides the trial court with sufficient evidence to conclude that appellant waived the impairment of collateral defense. In addition, appellee did not have possession of the collateral and, thus, could not be held liable for its unjustified impairment. Thus, evidence of whether appellee impaired the collateral was irrelevant to this matter. Assignment of Error III is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. 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. BLACKMON, J. KRUPANSKY, J. CONCUR PRESIDING 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. .