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Kraus v. Maurer2/19/2004
summons. See R.C. 2703.14(L). Here, even assuming the service by publication was valid, Kraus failed to commence her action within the statutory period.
. We also find Kraus' "concealment" argument unavailing to extend the statute of limitations. R.C. 2305.15 provides that the applicable statute of limitations may be tolled upon a showing that the defendant was out of the state, absconded or concealed himself, or was in prison during the statutory period. The plaintiff has the burden of demonstrating that R.C. 2305.15 is applicable. Wright v. Univ. Hosp. of Cleveland (1989), 55 Ohio App.3d 227.
. Kraus failed to meet her burden in this case. In its motion for summary judgment filed on August 15, 2000, well after Maurer had refused service, Western Reserve Group argued that it was entitled to summary judgment because Kraus had not perfected service on either Maurer or Belke prior to the running of the statute of limitations. Kraus filed no brief in opposition to Western Reserve Group's motion. Significantly, she offered no affidavit or any other evidence that Maurer had purposely concealed herself in an attempt to avoid service. Therefore, she failed to demonstrate that R.C. 2305.15 is applicable to toll the statute of limitations.
. Finally, we note that contrary to Kraus' argument, the Savings Statute did not afford her any extra time to commence her action against Maurer in case No. 428887. A refiling under the Savings Statute requires a failure "otherwise than upon the merits" in the original action. Here, because Kraus' claims against Maurer were never dismissed in case No. 340520, that case always remained pending; hence, there was never any failure "otherwise than upon the merits" that would implicate the Savings Statute and allow for a refiling against Maurer. Accordingly, any service attempted or obtained on Maurer in case No. 428887 was meaningless.
. Moreover, the Savings Statute is not available to Kraus to refile her claims against Maurer. A dismissal for failure to commence an action within the statute of limitations is a dismissal with prejudice. Anderson v. Borg-Warner Corp., Cuyahoga App. Nos. 80551 and 80926, 2003-Ohio-1500, at , citing LaBarbera v. Batsch (1967), 10 Ohio St.2d 106. Because a refiling under the Savings Statute requires a failure "otherwise than upon the merits," Kraus will not be able to utilize that statute to reinstate her claims against Maurer.
. Maurer's first assignment of error is sustained. The trial court judgment denying Maurer's motion to dismiss Kraus' complaint is reversed. The matter is remanded and the trial court is instructed to enter judgment for appellant.
. Our resolution of Maurer's first assignment of error renders consideration of assignments of error two and three moot. See App.R. 12(A)(1)(c).
. Reversed and remanded.
COLLEEN CONWAY COONEY, P.J., and SEAN C. GALLAGHER, J., concur.
This cause is remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellant recover from appellee costs herein.
It is ordered that a special mandate be sent to said 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.
TIMOTHY E. McMONAGLE JUDGE
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