COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69791 OTIS GARDNER, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DIANE GLEYDURA, ET AL. : : Defendants-appellees : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : JAN. 16, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 245181 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS FOR DEFENDANT-APPELLEE: REYNALDO HERNANDEZ, RAMON HERNANDEZ & RALPH BRITTON, JR.: William J. Day, Esq. Gerald L. Jeppe, Esq. 8748 Brecksville Road 2121 Superior Building Brecksville, Ohio 44141 Cleveland, Ohio 44114 FOR PLAINTIFF-APPELLANT OTIS GARDNER: Pierre Marlais, Esq. Mark J. Vanrooy, Esq. 19443 Lorain Road Fairview Park, Ohio 44126 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated appeal is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 17 Ohio App.3d 158; App.R. 11.1(E). Plaintiffs-appellants, Otis Gardner, Reynaldo Hernandez, Ramon Hernandez, and Ralph Britton, Jr., appeal from the trial court's granting summary judgment in favor of defendants- appellees, Dwayne Gordon and Ms. Diane Gleydura. A review of the record on appeal indicates that on September 8, 1988, a motor vehicle accident occurred near the south bound merge of I-71 and I-480 in the city of Brook Park, Ohio. Mr. Gordon was hauling heavy furniture on the back of a pick-up truck and an unsecured couch fell off the truck onto the middle of the roadway. Mr. Gardner's vehicle struck the couch. Ms. Gleydura's vehicle swerved to avoid the couch and eventually stopped in the roadway. In September 10, 1990, Mr. Gardner, Reynaldo Hernandez, Ramon Hernandez and Mr. Britton filed a complaint in the Cuyahoga County Court of Common Pleas. Only Ms. Gleydura was served with notice of the complaint. Attempts to serve Mr. Gordon were unsuccessful. The complaint was dismissed without prejudice on February 11, 1992. On January 5, 1993, the complaint was refiled against Mr. Gordon and Ms. Gleydura pursuant to the Ohio Savings Statute, R.C. 2305.19. Ms. Gleydura filed a motion to dismiss and an alternative motion for summary -3- judgment because the complaint was not refiled within the one- year time period. Ms. Gleydura also filed a motion to dismiss Mr. Gordon's counterclaim. The trial court granted Ms. Gleydura's motions on November 5, 1993 and dismissed the case with prejudice. Appellants appealed the trial court's ruling in favor of Ms. Gleydura to this court. Appellants argued that the trial court erred because the statute of limitations did not bar a refiling of a case previously dismissed under Civ.R. 41 when the case was refiled within the one-year time limit. Otis Gardner, et al. v. Diane Gleydura, et al. (Oct. 17, 1994), Cuyahoga App. No. 66590, unreported, ("Gardner I"). In Gardner I, this court affirmed the trial court's granting Ms. Gleydura's motion to dismiss the entire case. Subsequently, Mr. Gordon filed a motion to dismiss the complaint filed by Mr. Gardner, Ramon Hernandez, Reynaldo Hernandez and Mr. Britton, which the trial court denied on June 13, 1994. Mr. Gordon filed a crossclaim against Ms. Gleydura. Ms. Gleydura filed a motion to dismiss Mr. Gordon's crossclaim. Next, Mr. Gordon filed a motion for summary judgment on August 31, 1995. The trial court granted Mr. Gordon's motion for summary judgment on October 5, 1995. Mr. Gardner files a timely appeal from the October 5, 1995 summary judgment in favor of Mr. Gordon. Mr. Gardner raises the following assignments of error for this court to review: -4- I. THE COURT OF COMMON PLEAS ERRED IN DETERMINING THAT PLAINTIFF DID NOT PROPERLY INVOKE O.R.C. 2305.15 TO TOLL THE RUNNING OF THE STATUTE OF LIMITATIONS IMPOSED UNDER O.R.C. 2305.10. II. THE COURT OF COMMON PLEAS ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLEE, DWAYNE GORDON BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST, AND MR. GORDON IS NOT ENTITLED TO JUDGEMENT AS A MATTER OF LAW. Since the first and second assignments of error are interrelated, they will be discussed jointly. Summary judgment is proper, pursuant to Civ.R. 56(C) if the trial court determines 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 conclusion 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. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267,274; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. See Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666, motion to certify overruled (1991), 58 Ohio St.3d 703. Pursuant to R.C. 2305.10, an action for bodily injury or personal property must be brought within two years after the cause occurs. R.C. 2305.15, the Ohio Savings Statute tolls the statute of limitations when a party has a cause of action, if the party is out of state, has absconded or concealed himself. Bendix Auto Lite Corp. v. Midwesco Enterprises, Inc. (1986), 486 U.S. 888, 108 S.Ct. 2218. In Bendix, the United States Supreme Court held that suspending or tolling the running of time against out- -5- of-state entities without a designated agent for service, violates the Commerce Clause of the United States Constitution, Article I, Section 8, paragraph 3. The rational of Bendix is applicable to individuals insofar as any statute that interferes with employment also violates the Commerce Clause. Tesar v. Hallas (N.D. Ohio 1990), 738 F.Supp. 240. In order for a plaintiff to avail himself of the tolling provisions of R.C. 2305.15 on the ground defendant departed from the state, plaintiff must prove defendant departed from the state and how long the defendant was absent. Wright v. Univ. Hosp. of Cleveland (1989), 55 Ohio App.3d 227. R.C. 2305.15(A) may be applicable where the defendant has absconded or concealed himself to avoid service of person. Noonan v. Rogers (1994), 97 Ohio App.3d 621. Appellants essentially assert that a genuine issue of material fact remains pending for litigation relative to whether the cause of action was tolled by the statue of limitations, because Mr. Gordon was present in the state when the action occurred. According to appellants, Mr. Gordon's disappearance constituted absconding or concealment. Furthermore, a genuine issue of material fact remained pending for litigation with respect to whether Mr. Gordon's actions in fleeing the state constituted interstate commerce. Therefore, Mr. Gordon was not entitled to summary judgment as a matter of law. In a summary judgment proceeding, the nonmovant may not rest on his pleadings, but rather must produce evidence on any issue for which he bears the burden of production at trial. Civ.R. -6- 56(D); Wing v. Anchor Media, Ltd. of Texas (1991), 56 Ohio St.3d 108, 111. Upon review of the record before this court, we find that the trial court did not err when it ruled in favor of Mr. Gordon. Mr. Gardner failed to carry his burden of production. Civ.R. 56; Wing; First, Mr. Gardner failed to commence an action against Mr. Gordon within the applicable statute of limitations. Second, Mr. Gardner's complaint fails to set forth grounds to toll the statute of limitations. In addition, Mr. Gardner's motion in opposition to Mr. Gordon's motion for summary judgment did not attach evidentiary documentation demonstrating that Mr. Gordon either absconded or concealed himself. Here, Mr. Gordon moved to South Carolina due to employment considerations. A departure from the state in search of employment no longer satisfies requirements to invoke R.C. 2305.15(A). Tesar. Given the facts of this case, Mr. Gardner has failed to offer evidence to establish that a genuine issue of material fact remains pending for litigation. Wing. Therefore, the trial court did not err when it granted summary judgment in favor of Mr. Gordon. Thus, the first and second assignments of error are devoid of merit. Judgment affirmed. -7- It is ordered that appellee recover of appellants his 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 Common Pleas Court 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. LEO M. SPELLACY, CHIEF JUSTICE PATRICIA A. BLACKMON, JUDGE SARA J. HARPER, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .