Orenthal Strother v. City of Columbus et al.
No. 22AP-7
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on November 17, 2022
[Cite as Strother v. Columbus, 2022-Ohio-4097.]
(M.C. No. 21CVE-2559) (ACCELERATED CALENDAR)
DECISION
On brief: Darryl O. Parker, for appellant.
On brief: Zach Klein, City Attorney, and Sheena D. Rosenberg, for appellee City of Columbus.
On brief: Giffen & Kaminski, LLC, Karen L. Giffen and In Son J. Loving, for appellee The Ohio Bell Telephone Company.
APPEAL from the Franklin
KLATT, J.
{1} Plaintiff-appellant, Orenthal Strother, appeals a judgment of the Franklin County Municipal Court entered in favor of defendants-appellees, the city of Columbus and The Ohio Bell Telephone Company (“Ohio Bell“), incorrectly named in the complaint as American Telephone and Telegraph. For the following reasons, we affirm the judgment as to Ohio Bell, but reverse it as to the city of Columbus.
{2} Due to the Covid-19 pandemic, many courts, including the municipal court, took measures intended to protect public health while maintaining essential court functions. To further those goals, on September 10, 2020, the municipal court issued an administrative order stating that, “[i]n her discretion and in such manner as she deems appropriate, the Clerk of Court may receive any civil filing, including complaints for restitution of premises, by a way of a ‘drop box’ installed on the premises of the Franklin County Municipal Court.” Admin. Order No. 19-2020; accord Admin. Order No. 26-2020 (order issued Nov. 25, 2020 that, in part, reiterated the provision permitting the clerk to install a drop box for the receipt of civil filings).
{3} In this case, Strother‘s attorney averred that he visited the clerk‘s office on Monday, January 25, 2021 to file the complaint. Because the office was closed, he could not take the complaint to a deputy clerk to have it time stamped. The attorney placed the complaint, along with service instructions, in the drop box located in the municipal court for civil filings.
{4} Although Strother‘s attorney placed the complaint in the drop box on January 25, 2021, the clerk did not time
{5} The city answered the complaint and filed a cross-claim against Ohio Bell. Rather than answer the complaint, Ohio Bell moved to dismiss pursuant to
{6} In its motion to dismiss, Ohio Bell pointed out that Strother‘s complaint alleged damage that occurred when Strother drove over a recessed utility hole cover “[o]n or about September 28, 2017 at approximately 1:37 PM.” (Compl. at ¶ 8.) A plaintiff must file an action for damage to personal property within two years after the cause of action accrues.
{7} Strother‘s response to Ohio Bell‘s motion to dismiss attempted to introduce facts to show that exceptions to the two-year statute of limitations applied. According to Strother, he initially filed a complaint regarding damage to his vehicle on October 31, 2018. He then voluntarily dismissed that complaint on January 24, 2020. Pursuant to
{8} The city also moved for judgment in its favor on Strother‘s action. Unlike Ohio Bell, which had filed a
{9} The city contended that a two-year statute of limitations also applied to Strother‘s action against it, albeit under
{10} In response to the city‘s motion for summary judgment, Strother reiterated the facts he had asserted in response to Ohio Bell‘s motion to dismiss. Strother argued that the trial court should apply the doctrine of equitable tolling to accept his complaint as timely filed. Strother contended that he diligently filed his complaint within the statute of limitations, but due to the extraordinary circumstances occasioned by the Covid-19 pandemic, the clerk did not immediately time stamp the complaint.
{11} In a judgment entered December 2, 2021, the trial court granted Ohio Bell‘s motion to dismiss and the city‘s motion for summary judgment. In relevant part, the trial court stated:
The docket reflects that [Strother‘s] complaint was filed by the Clerk of Court on February 1, 2021, beyond the one[-]year deadline of January 25, 2021. Even accepting as true that the complaint was placed in the Clerk‘s drop box on January 25, 2021, such that the Court and Clerk‘s office‘s operational response to the Covid-19 pandemic impacted [Strother‘s] ability to file his complaint on January 25, 2021, that extraordinary circumstance is not the sole criteria for applying equitable tolling to the statute of limitations. * * * [Strother‘s] filings invoking equitable tolling offer no explanation as to how [Strother] pursued his rights “diligently” by waiting until the very last day to re-file his claim.
(Dec. 2, 2021 Order to Dismiss at 1.) Because the trial court found that Strother did not demonstrate diligence, the trial court refused to apply the equitable tolling doctrine. Given the trial court‘s finding that the complaint was filed on February 1, 2021, the trial court concluded that Strother‘s action was untimely.
{12} Strother now appeals the December 2, 2021 judgment. For his assignment error, Strother asserts that “[t]he trial court abused its discretion when finding that the [a]ppellant did not diligently pursue his rights.” Strother contends that he provided proof that he acted diligently and, thus, the trial court erred in concluding that he failed to establish entitlement to equitable tolling.
{13} Initially, we will address whether the trial court erred in granting Ohio Bell‘s
{14} In deciding a
{15} In the case at bar, Strother did not contest that the two-year statute of limitations set forth in
{16} To avoid operation of the statute-of-limitations defense, Strother asserted two exceptions to that defense in his memorandum contra to Ohio Bell‘s motion to dismiss. First, Strother claimed the benefit of the savings statute, and he presented affidavit testimony that he had voluntarily dismissed his initial action against Ohio Bell on January 24, 2020. Strother asserted, therefore, that he had one additional year from the date of dismissal to refile his action. Second, Strother testified to facts that he argued justified the application of the equitable tolling doctrine.
{17} The trial court, however, could not consider Strother‘s arguments because they rested on factual allegations and evidence outside the complaint. As we stated above, a trial court‘s
{18} The plaintiff‘s failure to meet its burden will result in dismissal. A trial court properly grants a
{19} We recognize that a plaintiff does not generally bear the burden of pleading around defenses in its complaint. Savoy v. Univ. of Akron, 10th Dist. No. 11AP-183, 2012-Ohio-1962, ¶ 8. A plaintiff, however, has recourse if the factual allegations in the complaint establish a statute-of-limitations defense, but not an exception to that defense. A plaintiff may amend its complaint as a matter of course within 28 days after service of a motion to dismiss.
{20} In Savoy, this court failed to appreciate the recourse
{21} As the dissent in Savoy pointed out, after Savoy received the motion to dismiss, he had the option of amending his complaint to allege facts demonstrating an exception to the statute of limitations. Id. at ¶ 13. Although the defendant forced a resolution of the statute-of-limitations defense early and, perhaps, unexpectedly, Savoy had a procedural mechanism,
{22} The failure of the Savoy decision‘s rationale has particular importance because Savoy contravenes longstanding Supreme Court of Ohio precedent. As we have stated repeatedly in this decision, in deciding a
{23} Turning back to the case at bar, we find that Strother‘s complaint contains no allegations suggesting the application of any exception to the statute-of-limitations defense Ohio Bell raised in its motion to dismiss. There is no reference in the complaint to the prior action against Ohio Bell nor the drop box. Strother never amended his complaint to include such allegations. The trial court, therefore, erred in considering those allegations to decide Ohio Bell‘s motion to dismiss. The trial court should not have considered, much less determined, issues regarding the savings statute or equitable tolling because there are no allegations in the complaint relevant to those issues.
{24} Nonetheless, this error does not require the reversal of the trial court‘s decision on the motion to dismiss.
{25} With regard to the statute of limitations, the face of Strother‘s complaint reflects only that his action accrued on September 28, 2017, and the first page was time stamped “filed” on February 1, 2021. Over three years elapsed between those two dates. Applying the two-year statute of limitations set forth in
{26} We next review the trial court‘s decision to grant the city‘s motion for summary judgment. A trial court must grant summary judgment under
{27} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
{28} As we explained above, in its motion for summary judgment, the city conceded that Strother voluntarily dismissed his original action against the city on January 24, 2020, and thus, he had until
{29} ” ‘The equitable tolling doctrine extends statutory deadlines in extraordinary circumstances for parties who were prevented from complying with them through no fault or lack of diligence of their own.’ ” In re Regency Village Certificate of Need Application, 10th Dist. No. 11AP-41, 2011-Ohio-5059, ¶ 36, quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). A litigant seeking equitable tolling must demonstrate that: (1) he has diligently pursued his rights, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at ¶ 37; Roach v. Vapor Station Columbus, Inc., 10th Dist. No. 21AP-511, 2022-Ohio-2106, ¶ 8. The diligence a litigant must exercise for equitable tolling purposes is reasonable diligence, not maximum feasible diligence. Holland v. Florida, 560 U.S. 631, 653 (2010). Generally, courts apply the equitable tolling doctrine sparingly and only in exceptional circumstances. Roach at ¶ 8; Regency Village at ¶ 36. Courts determine whether equitable tolling is appropriate on a case-by-case basis. Holland at 649-50; Regency Village at ¶ 36.
{30} The trial court refused to apply equitable tolling because it found that Strother did not prove that he diligently pursued his rights. According to the trial court, Strother was less than diligent because he waited until the last day before the expiration of the statute of limitations to file his complaint. We thus begin by considering whether Strother acted diligently by placing his complaint in the clerk‘s drop box on January 25, 2021, the last day on which he could file his complaint within the statute of limitations.
{31} Pursuant to
{32} Here, the municipal court had authorized the clerk to “receive any civil filing[s] * * * by way of a ‘drop box’ installed on the premises of the Franklin County Municipal Court.” Admin. Order No. 19-2020; accord Admin. Order No. 26-2020 (order issued Nov. 25, 2020 that, in part, reiterated the provision permitting the clerk to install a drop box for the receipt of civil filings). According to the affidavit testimony of Strother‘s attorney, he placed the complaint in that drop box on January 25, 2021. A reasonable finder of fact could interpret this evidence to show that, on January 25, 2021, Strother deposited his complaint with the clerk via
{33} If Strother timely filed his complaint, then he diligently pursued his rights. Given that a question of fact exists regarding when Strother filed his complaint, we conclude that the trial court erred in determining Strother did not act diligently. Of course, if Strother timely filed his complaint, he need not resort to reliance on the equitable tolling doctrine at all, so his diligence or lack thereof becomes moot.
{34} Alternatively, we conclude that “delay between a document‘s arriving at a * * * drop-box, designated for court documents, and the clerk‘s docketing the document is not attributable to the filing party.” Ross v. McKee, 465 Fed.Appx. 469, 474 (6th Cir. 2012). Under Strother‘s version of facts, he placed his complaint in the drop box within the statute of limitations. The clerk, therefore, bears responsibility for the week delay between her receipt of the complaint and the docketing and time-stamping of the complaint. The diligence prong of the equitable tolling doctrine “covers those affairs within the litigant‘s control; the extraordinary-circumstances prong, by contrast, is meant to cover matters outside its control.” Menominee Indian Tribe v. United States, 577 U.S. 250, 257 (2016). Construing the evidence most strongly in Strother‘s favor, it was the extraordinary circumstances outside of his control, not a lack of diligence over matters within his control, which resulted in the February 1, 2021 time stamp on the complaint. The trial court, therefore, erred in granting the city summary judgment.
{35} In sum, we overrule Strother‘s assignment of error with regard to Ohio Bell because we conclude that the trial court did not err in granting Ohio Bell‘s
{36} For the foregoing reasons, we overrule in part and sustain in part the sole assignment of error. We affirm in part and reverse in part the judgment of the Franklin County Municipal Court, and we remand this matter to that court for further proceedings consistent with law and this decision.
Judgment affirmed in part and reversed in part; cause remanded.
SADLER and MENTEL, JJ., concur.