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Scardina v. Ghannam6/29/2005
JUDGMENT: Reversed and Remanded
JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro
{ } Plaintiffs-appellants, Helene Scardina, et al., appeal a decision of the Mahoning County Common Pleas Court dismissing their personal injury claims against defendant-appellee, Mouja Abu Ghannam, because they were filed beyond the statute of limitations.
{ } On March 16, 2001, plaintiffs-appellants, Helene Scardina and Phyliss Balint, were in a traffic accident involving defendant-appellee, Mouja Abu Ghannam (Ghannam). Two years and nine days later on March 25, 2001, Helene and Phyliss, filed this personal injury action against Ghannam alleging he was negligent in causing the accident. Helene and Phyliss' respective spouses, John Scardina and Andrew Balint, joined them as plaintiff's setting forth claims of loss of consortium. An additional defendant was State Farm Insurance Company.
{ } On May 1, 2003, appellee filed a motion to dismiss appellants' complaint alleging that appellants' complaint was barred by the two year statute of limitations and that the tolling provision did not apply to him because he was not an Ohio resident. In support of his motion, appellee attached photocopies of an Israeli driver's license and a Jordanian residence card. Appellants responded to appellee's motion asserting that it should be converted into a summary judgment since it contained exhibits or materials outside the pleadings. Appellants also questioned the veracity of appellee's representations regarding his citizenship without the benefit of discovery. Appellee filed a reply to appellants' response reasserting his entitlement to relief.
{ } On June 26, 2003, the trial court granted appellee's motion finding that appellants' claims had been filed beyond the applicable statute of limitations and that they had also failed to establish a valid exception to the limitations statute. Appellants' claims against State Farm were ultimately resolved and they were dismissed from the case. This appeal followed.
{ } Appellants' sole assignment of error states:
{ } "The trial court erred in granting Abu Ghannam's Motion to Dismiss pursuant to Civil Rule 12(B)(6) when the complaint contained a set of factual allegations that, when presumed true and all reasonable inferences were made in her favor, entitled her to relief she requested."
{ } Personal injury actions are governed by a two year statute of limitations. R.C. 2305.10. R.C. 2305.15(A) creates an exception to the statute of limitations which states:
{ } "When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought."
{ } In this case, appellants attempted to utilize this exception thereby bringing their complaint within the statute of limitations. In particular, in paragraph twelve of their complaint appellants averred:
{ } "Plaintiffs state that during the time period between March 16, 2001 and the present day, Defendant Abu Ghannam temporary left the State of Ohio for non-business purposes."
{ } Appellants' also initially complain that the documentation attached to appellee's
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