TIMOTHY MESSER v. SCHNEIDER NATIONAL CARRIERS
No. 103913
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2016
2016-Ohio-7050
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848682
JUDGMENT: AFFIRMED
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: September 29, 2016
Wesley Alton Johnston
P.O. Box 6041
Youngstown, Ohio 44501
ATTORNEYS FOR APPELLEE
Steven E. Seasly
Hahn, Loeser & Parks, L.L.P.
200 Public Square, Suite 2800
Cleveland, Ohio 44114
Peter A. Milianti
77 West Wacker Drive
Suite 4100
Chicago, Illinois 60601
{¶1} Plaintiff-appellant, Timothy Messer (“Messer“), appeals from the trial court‘s order dismissing his complaint against defendant-appellee, Schneider National Carriers, Inc. (“Schneider“). Mеsser raises one assignment of error for our review:
- A trial court improperly granted the summary judgment motion1 filed in this case because the Court abused its discretion because the Court allowed the Clerk‘s office to dismiss a properly filed complaint based on the accompanying affidavit of indigency being not notarizеd, which represents an instruction into the practice of law by the Clerk‘s office, a violation of Due Process and a violation of the Court‘s own First Amended Temporary Administrative Order, filed October 4, 2013.
{¶2} After careful review of the record and relevant case law, we affirm the trial court‘s judgment.
I. Procedural and Factual History
{¶3} On July 22, 2009, Messer was discharged from his emрloyment with Schneider following a failed drug test. On July 17, 2011, Messer filed a complaint against Schneider in Cuyahoga C.P. No. CV-11-759939. The complaint alleged causes of action fоr breach of implied contract, intentional infliction of emotional distress, promissory estoppel, age discrimination, and invasion of privacy.
{¶5} On September 24, 2015, Schneider filed a motion to dismiss pursuant to
{¶6} On October 17, 2015, Messer filed a motion to deem his complaint filed on July 22, 2015. In addition, Messer filed a brief in opposition, arguing that his promissory estoppel and breaсh of implied contract claims are subject to an eight-year statute of limitations and, therefore, were timely filed.2 Messer further argued that the Cuyahoga County Clеrk of Courts acted outside the scope of its authority and improperly rejected his attempt to electronically file his complaint on July 22, 2015.
{¶7} On November 17, 2015, thе trial court denied Messer‘s motion to deem his complaint filed on July 22, 2015, and granted Schneider‘s motion to dismiss, stating, in pertinent part:
The Ohio Savings Statute,
R.C. 2305.19 , and the statute of limitations for each of Messer‘s claims expired prior to the refiling of the complaint on July 23, 2015.
{¶8} Messer now appeals from the trial court‘s judgment.
II. Law and Analysis
{¶10} We review an order dismissing a complaint for failure to state a claim for relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44. When reviewing a
{¶11} The statute of limitations is an affirmative defensе and is generally not properly raised in a
{¶13} Applying the foregoing to the circumstances of this case, we find the complaint conclusively dеmonstrates, on its face, that Messer‘s action was filed one day beyond the applicable statute of limitations period. Accordingly, the trial court did not еrr in granting Schneider‘s motion to dismiss pursuant to
{¶14} Alternatively, Messer argues the trial court erred in failing to deem his complaint filed on July 22, 2015, the last day of the applicable statute of limitations period. Here, Messer claims he timely filed his complaint electronically on July 22, 2015, but that the clerk of courts improperly rejected the complaint for filing because Messer‘s accompanying poverty affidavit was not notarized. Messer argues the clerk of courts acted outside the scope of its authority by rejecting his complaint for filing and that “the only remedy is to deem the complaint admitted on July 22, 2015, which is when it was filed electronically.”
{¶16} We disagree with Messer‘s position. Notably, the attached emails make no reference to July 22, 2015, nor do they otherwise indicate whеn Messer attempted to electronically file his complaint. Thus, Messer asks this court to speculate that the filing was made on July 22, 2015, merely because he reсeived the rejection email at 8:36 a.m. on July 23, 2015. Messer‘s argument, however, fails to account for the 24 hours a day, seven days a week availability of the clerk оf court‘s for e-Filing. Moreover, had Messer filed his complaint on July 22, 2015, as he claims, the clerk of courts would have provided him with a confirmation that his submission was received pursuant to the trial court‘s “Rules for e-Filing,” as set forth in the court‘s First Amended Temporary
III. Conclusion
{¶17} The trial court did not err in dismissing Messer‘s complaint pursuant to
{¶18} Messer‘s sole assignment of error is overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR