COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72697 LINDA SMITH-RICHARDSON, : ACCELERATED ET AL., : : Plaintiffs-Appellants : JOURNAL ENTRY : AND vs. : OPINION : SHANNON TRINGHESE, : : PER CURIAM Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 24, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 318631 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Lester S. Potash 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendant-appellee: Timothy X. McGrail KITCHEN, DEERY & BARNHOUSE 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- PER CURIAM: Appellants' sole assignment of error reads: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT. Appellants originally filed this action on October 7, 1994, voluntarily dismissed it on April 12, 1996, and refiled it on November 13, 1996. The trial court granted appellee's motion to dismiss and this appeal follows. Evidentiary materials in the form of affidavits were attached to appellee's motion to dismiss and the motion is properly considered as a motion for summary judgment. A motion for summary judgment is reviewed de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court is to grant summary judgment when it determines that: (1) No genuine issues 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.3d 317, 327; 364 N.E.2d 267, 274. The applicable statute of limitations for an action of this type is two years. See, R.C. 2305.10. Appellants refiled this action beyond the applicable statute of limitations. See, Reese v. Ohio State University Hosp. (1983), 6 Ohio St.3d 162, 163, 451 N.E.2d 1196, 1198. (The savings statute, R.C. 2305.19, does not extend the statute of limitations where an action was voluntarily -3- dismissed prior to the running of the statute of limitations.) Accordingly, the court did not err by dismissing the action on the basis that it was untimely filed. Appellants argue that because appellee failed to cooperate in their efforts at discovery after they refiled the action they were prejudiced in obtaining information with which to answer the motion to dismiss. They allege that had appellee been deposed, they would have found evidence that she had resided out of the State of Ohio, had absconded, or had concealed herself from service; all actions which would toll the statute of limitations under R.C. 2305.15(A). Appellants also ask that appellee be subject to sanctions and that she be equitably estopped from asserting the statute of limitations defense. Appellants' arguments do not justify their failure to refile this action within the statute of limitations. They have produced no evidence that any action on the part of appellee was the cause of their failure to refile this action within the statute of limitations which would justify their request for further discovery. From the record, it is apparent that prior to the running of the statute of limitations a simple search for appellee would have revealed that she lived in the same city as when the action was first filed. Accordingly, appellants' arguments that appellee evaded service, absconded, or resided outside the State of Ohio during the seven months the action had been dismissed are without merit. Judgment affirmed. -4- It is ordered that appellee recover of appellants her 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. JOSEPH J. NAHRA, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE *ROBERT E. HOLMES, JUSTICE (*SITTING BY ASSIGNMENT: ROBERT E. HOLMES, RETIRED JUSTICE OF THE OHIO SUPREME COURT) 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 of decision by the .