COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71756 : GERALDINE R. FIORELLO : AND : : OPINION Plaintiff-Appellant : : vs. : PER CURIAM : JOHN S. KACSMARIK Defendant-Appellee JULY 24, 1997 Civil appeal from Common Pleas DATE OF ANNOUNCEMENT Court Case No. CV-315639 OF DECISION: CHARACTER OF PROCEEDING: AFFIRMED. JUDGMENT: DATE OF JOURNALIZATION: PAUL W. YATES 800 Standard Building APPEARANCES: 1370 Ontario Street Cleveland, Ohio 44113 For Plaintiff-Appellant: MARILLYN FAGAN DAMELIO Lakeside Place, Suite 410 323 Lakeside Avenue, West Cleveland, Ohio 44113 For Defendant-Appellee: : ACCELERATED DOCKET : : JOURNAL ENTRY 2 PER CURIAM: This is an accelerated case on our docket provided for in App. R. 11.1 and Local R. 25 allowing for the statement of our reasons for decision to be in brief and conclusionary form. Here, Geraldine R. Fiorello appeals from a judgment of the common pleas court which granted John S. Kacsmarik's motion to dismiss her claim for personal injuries arising out of Kacsmarik's alleged negligence in causing a motor vehicle accident which occurred on September 15, 1994 at the intersection of West 54th Street and Brookpark Road in Parma, Ohio. The procedural history of this matter reveals that Fiorello originally filed suit on November 15, 1994, but voluntarily dismissed that action on October 31, 1995. She then refiled the case on September 23, 1996. In response to this filing, Kacsmarik filed an answer, a motion, pursuant to Sup. R. 4, to transfer the case to the originally assigned trial judge, and a motion to dismiss the case, contending that the statute of limitations had expired and urging that the savings statute, R.C. 2305.15, did not apply because the action had been voluntarily dismissed prior to the expiration of the original two year statute of limitations for bodily injury claims. On October 15, 1996, the court transferred the case to the originally assigned trial judge who, on November 20, 1996, granted the motion to dismiss the case without opposition. Fiorello now appeals from that November 20, 1996 judgment and has assigned one error for review. It states: 3 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ABUSING ITS DISCRETION WHEN IT DENIED PLAINTIFF-APPELLANT THE OPPORTUNITY TO CONDUCT DISCOVERY IN ORDER TO RESPOND TO DEFENDANT-APPELLEE'S MOTION TO DISMISS WHEN PLAINTIFF- APPELLANT WAS NEVER SERVED WITH SAID MOTION TO DISMISS AND DID NOT HAVE THE OPPORTUNITY TO RESPOND. Fiorello urges that the trial court erred in dismissing her refiled complaint because she did not have the opportunity to depose Kacsmarik to determine whether he had left the state after the cause of action accrued which she claims would have tolled the statute of limitations for the period of his absence. Kacsmarik urges however, that the trial court properly granted his motion to dismiss because Fiorello did not refile her complaint within the original two-year statute of limitations and because the savings statute does not apply to this case. Further, Kacsmarik submits that since Fiorello never presented the matter of Kacsmarik's possible absence from the jurisdiction to the trial court, it cannot be raised for the first time on appeal. The issue presented for our consideration concerns whether the trial court abused its discretion in granting Kacsmarik's motion to dismiss the refiled complaint. In connection with review of the trial court on a motion to dismiss, we look only to the allegations contained in the complaint, and assuming them to be true for the purposes of a Civ. R. 12(B)(6) motion, we affirm the dismissal only if no set of facts exists which would entitle recovery under the allegations of the complaint. See O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242; Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689. 4 In examining the substantive law regarding Fiorello's claims, we begin our analysis by observing that pursuant R.C. 2305.10, an action for bodily injury shall be brought within two years after the cause of action arose. Since the precipitating event occurred on September 15, 1994, Fiorello had until September 15, 1996 to file her action. She originally filed her complaint on November 15, 1994, but voluntarily dismissed it on October 31, 1995, prior to the expiration of the original statute of limitations. She then refiled the same complaint on September 23, 1996, within one year of her voluntary dismissal, but eight days after her original statute of limitations had expired. The next part of our analysis requires us to review the savings statute, R.C. 2305.19, which states, in relevant part: In an action commenced, or attempted to be commenced,***if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date or reversal or failure has expired, the plaintiff***may commence a new action within one year after such date.*** (Emphasis added.) It has been determined that ***a party who voluntarily dismisses an action before the applicable statute of limitations has run cannot find refuge in the savings statute. Malatesta v. Sharon Twp. Trustees (1993), 87 Ohio App.3d 719, 722. Here, the October 31, 1995 voluntary dismissal without prejudice is a failure otherwise than upon the merits. Frysinger v. Leech (1987), 32 Ohio St.3d 38, paragraph two of the syllabus. However, since the original two year statute of limitations, which terminated on September 15, 1996, had not expired on the date of failure, the savings statute could not be used to save the cause of 5 action for an additional year. Thus, this action is barred, unless R.C. 2305.15 applies. R.C. 2305.15 states, in relevant part: (A) 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 as provided for in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, absconds, or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought. The Ohio Supreme Court determined in Wetzel v. Weyant (1975), 41 Ohio St.2d 135, in the syllabus: Where a defendant temporarily leaves the state after a cause of action accrues against him, he departs from the state within the meaning of R.C. 2305.15, and the time of his absence is not computed as any part of a period within which the action must be brought. Fiorello alleges on appeal that the trial court granted Kacsmarik's motion to dismiss the case without her opposition to it because Kacsmarik never served her with that motion. Further, she urges that although she filed a Motion for Relief from that judgment, the trial court also denied that motion; now Fiorello claims, on appeal, that she had no opportunity to depose Kacsmarik to determine if he had departed from Ohio for any period of time which would have tolled the statute of limitations. Examination of Fiorello's Motion for Relief from Judgment reveals that she failed to raise this R.C. 2505.15 argument in the trial court and never attempted or sought leave from the court to depose Kacsmarik on this issue. 6 Nothing in the record before us suggests that R.C. 2305.15 applies to this case. Further, it is Fiorello's burden to demonstrate that Kacsmarik departed from Ohio and to establish the length of that departure in order to comply with R.C. 2305.15. Wright v. Univ. Hosp. Of Cleveland (1989), 55 Ohio App.3d 227, 232. See also Conway v. Smith (1979), 66 Ohio App.2d 65. Since we are confined to the allegations contained in the complaint for purposes of considering our review of the Motion to Dismiss, we have determined that the trial court did not abuse its discretion in granting the motion and that judgment is affirmed. Judgment affirmed. 7 It is ordered that appellee recover of appellant 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 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. PATRICIA BLACKMON, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, 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 pursuantto 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 revi ew by the Supreme Court of Ohio shall begin to run upon the jour nalization of this court's announcement of decision by the .