[Cite as Rutti v. Dobeck, 2017-Ohio-8737.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 105634



                                      SCOTT A. RUTTI

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                  JOSEPH C. DOBECK
                                                      DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-16-871412

        BEFORE: McCormack, J., E.A. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                     November 30, 2017
ATTORNEY FOR APPELLANT

Jeffrey H. Black
Murray & Black Ltd., L.P.A.
38109 Euclid Ave.
Willoughby, OH 44094


ATTORNEY FOR APPELLEE

Joseph K. Oldham
Oldham Company L.L.C.
759 West Market Street
Akron, OH 44303
TIM McCORMACK, J.:

       {¶1}          Plaintiff-appellant Scott A. Rutti appeals from the trial court’s

dismissal of his complaint against defendant-appellee Joseph C. Dobeck.            For the

reasons that follow, we affirm.

                         Procedural History and Substantive Facts

       {¶2} On November 4, 2016, Rutti filed a complaint in negligence against

defendant-appellee Dobeck, alleging he suffered injuries from an automobile accident on

or about August 18, 2014, as a result of Dobeck’s actions. Rutti’s complaint also

included a claim for punitive damages.

       {¶3} On February 27, 2017, Dobeck filed a motion to dismiss pursuant to Civ.R.

12(B)(6), claiming that Rutti failed to comply with the applicable statute of limitations.

The motion was unopposed. On March 8, 2017, the trial court granted Dobeck’s motion

to dismiss, stating that “Defendant’s motion to dismiss * * * is unopposed and granted.

Plaintiff’s complaint is barred by the applicable statute of limitations. Accordingly,

pursuant to Civ.R. 12(B)(6), Plaintiff’s complaint is dismissed. Final.” Thereafter,

Rutti filed a motion for reconsideration, which the trial court denied, stating that Rutti’s

remedy is to file an appeal.

       {¶4} Rutti now appeals, assigning two errors for our review.
                                     Law and Analysis

       {¶5} In his first assignment of error, Rutti contends that the trial court erred in

granting Dobeck’s motion to dismiss for failure to state a claim upon which relief can be

granted. Specifically, Rutti argues that Dobeck’s motion to dismiss was not the proper

vehicle to raise a statute of limitations defense, stating that his complaint raises issues of

law and fact as to whether the complaint is truly time barred under the statute of

limitations. Rutti also argues, in his second assignment of error, that he was not aware

of how his originally filed complaint became corrupted and thus rejected, and he was not

afforded a review procedure for such technical failures pursuant to the court’s own

temporary administrative order.    We address the assigned errors together.

       {¶6} This court reviews 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.

       {¶7} A motion to dismiss pursuant to Civ.R. 12(B)(6), the failure to state a claim,

tests the sufficiency of the complaint.    Assn. for Defense of Washington Local School

Dist. v. Kiger, 42 Ohio St.3d 116, 537 N.E.2d 1292 (1989). In deciding the Civ.R.

12(B)(6) motion to dismiss, the trial court’s review is limited to the four corners of the

complaint, along with any documents properly attached to, or incorporated within, the

complaint.    Windsor Realty & Mgt., Inc. v. N.E. Ohio Regional Sewer Dist.,

2016-Ohio-4865, 68 N.E.3d 327, ¶ 23 (8th Dist.), citing High St. Props. L.L.C. v.

Cleveland, 8th Dist. Cuyahoga No. 101585, 2015-Ohio-1451, ¶ 17. The trial court
presumes all factual allegations contained in the complaint to be true and makes all

reasonable inferences in favor of the nonmoving party. Garofalo v. Chicago Title Ins.

Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218 (8th Dist.1995). In order for the trial

court to grant a motion to dismiss for failure to state a claim, it must appear beyond doubt

that the plaintiff can prove no set of facts in support of the asserted claim that would

entitle the plaintiff to relief. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio

St.2d 242, 245, 327 N.E.2d 753 (1975).

       {¶8} The statute of limitations is an affirmative defense and is generally not

properly raised in a motion to dismiss under Civ.R. 12(B)(6). Messer v. Schneider Natl.

Carriers, 8th Dist. Cuyahoga No. 103913, 2016-Ohio-7050, ¶ 11, citing PNC Bank,

N.A. v. J & J Slyman, L.L.C., 8th Dist. Cuyahoga No. 101777, 2015-Ohio-2951, ¶ 13.

The Ohio Supreme Court has held, however,          that a court may dismiss a complaint

pursuant to Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations

where the complaint, on its face, conclusively indicates that the action is time barred.

Messer, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625,

849 N.E.2d 268, ¶ 11; Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 58, 320

N.E.2d 668 (1974).

       {¶9} Rutti contends that the trial court improperly granted Dobeck’s Civ.R.

12(B)(6) motion because the complaint presents a question of fact as to whether the

complaint is time barred. In support, he refers to the facts surrounding the purported

August 2016 filing of the complaint, which were alleged in his complaint:
       This complaint was originally timely filed via the Cuyahoga County E-filing
       service on August 13, 2016. However, upon review it appears the
       complaint was “rejected” by the system as being “corrupted.” The
       rejection occurred on August 15, 2016. Plaintiff’s counsel asserts he was
       not notified of the rejected complaint and only upon his own file review
       discovered the complaint had not been accepted as filed. Hence Plaintiff
       maintains the statute of limitations has been met.

Plaintiff-appellant’s complaint, ¶ 4.

       {¶10} Rutti asserts that based upon these facts as alleged in his complaint, the

statute of limitations has been met, and at the very least, there is a question of fact

regarding the timeliness of the complaint.      We disagree.   Although we presume the

factual allegations contained in Rutti’s complaint are true and Rutti did, in fact, timely

submit a complaint that was rejected by the electronic filing system, we cannot accept his

legal conclusion drawn from these facts — that such facts establish the complaint was

timely filed.

       {¶11} The Cuyahoga County Court of Common Pleas First Amended Temporary

Administrative Order (the “TAO”), filed on October 4, 2013, governs the court’s

electronic filing system (“e-Filing”).    The TAO provides that the clerk’s office “shall

review the data and documents electronically submitted to ensure compliance with court

rules, policies, procedures and practices before officially receiving the documents for

filing and creating a docket entry.”    TAO, II(C), Clerk Review.

       {¶12} The section entitled “Filing Date and Time of Electronically Filed

Documents” sets forth the process by which an e-Filing is either accepted or rejected:

       (1)      Upon receipt of an electronic document submitted for filing, the
                e-Filing System shall issue the e-Filer a confirmation that the
              submission has been received. The confirmation notice shall
              include the date and time of receipt and shall serve as proof of
              receipt of the submission. The confirmation notice shall also inform
              the e-Filer that, if the document is accepted for filing, the date and
              time reflected in the confirmation notice shall serve as the date and
              time of filing * * *.

       (2)    An e-Filer will receive subsequent notification from the Clerk
              indicating that the submission has been accepted or rejected by the
              Clerk’s office for docketing and filing into the Court’s Case
              Management System.

       (3)    If a document submitted for e-Filing has been accepted by the Clerk
              after Clerk review, the document will receive an electronic stamp.
              The stamp will include the date and time that the filer transmitted the
              document to the e-Filing System (i.e., date and time of receipt
              outlined in section 1 above). * * * [T]he date and time reflected on
              the electronic stamp shall become the filing date and time for that
              document.

       (4)    In the event the Clerk rejects a submitted document following Clerk

              review, the document shall not become part of the official Court

              record and the e-Filer will be required to re-file the document to

              meet necessary filing requirements.

TAO, XI(B),Filing Date and Time of Electronically Filed Documents.

       {¶13} In a section governing errors in submission, the administrative order

addresses “user filing errors” and “technical failures”:

       A. User Filing Errors

       (1)    A filer cannot make changes to any document once it has been
              submitted and accepted for filing.

       (2)    A document that is incorrectly submitted for e-Filing (e.g., as a result
              of entering a wrong case number, selecting an incorrect document
              type, attaching an incorrect PDF file to a submission for e-Filing, or
             where the electronic file is corrupt or unreadable), may be deleted
             from the e-Filing System as long as the document has not been
             accepted for filing by the Clerk’s office.

      (3)    In the event of an incorrect case number or an electronic file that is
             corrupt or unreadable, the Clerk will reject the submission and notify
             the filer of the error and the need to re-submit. * * *

      (4)    Once a document has been accepted for e-Filing by the Clerk, only a
             Judge can strike the document in the event it has been filed in error.

      B. Technical Failures

      ***

      (3)    If a document submitted electronically for filing is not filed with the

             Court because of an error in the transmission of the document to the

             e-Filing System, whether that error originates with the e-Filing

             System or at the filer’s end, the Court may, upon satisfactory proof,

             enter an order permitting the document to be deemed filed as of the

             date it was electronically submitted. The Court may specify by local

             rule, or otherwise, a procedure for seeking relief under this

             provision. Counsel and parties should not assume that such relief is

             available on jurisdictional time limits (such as statutes of limitation

             or deadlines for appeal).

TAO, XII(A) and (B), System or User Filing Errors.

      {¶14} This court has previously affirmed the trial court’s dismissal of a plaintiff’s

complaint on Civ.R. 12(B)(6) grounds where the plaintiff’s e-Filing was “rejected.”    See

Messer, 8th Dist. Cuyahoga No. 103913, 2016-Ohio-7050 (Civ.R. 12(B)(6) dismissal
proper where the court rejected the plaintiff’s e-Filing due to the failure to notarize a

poverty affidavit); Culler v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 101386,

2014-Ohio-5434, ¶ 17 (Civ.R. 12(B)(6) dismissal proper where the court rejected the

plaintiff’s electronically filed complaint because it was not timely filed).

       {¶15} In Culler, where the plaintiff’s complaint was dismissed as being untimely

filed through the e-Filing system, we found that the court’s administrative order made a

clear distinction between a party’s submission of a document and the clerk’s acceptance

of that document.    Id. at ¶ 16.   And in accordance with Civ.R. 3(A) and 5(E), counsel

bears the burden of ensuring that his or her electronically filed document was properly

filed and accepted by the clerk of courts, regardless of any notice he or she may have

received from the court.    Id. at ¶ 17; see also Holschuh v. Newcome, 11th Dist. Trumbull

No. 2010-T-0129, 2011-Ohio-6205, ¶ 20.

       {¶16} Here, Rutti alleges in his complaint that he timely submitted his complaint

for e-Filing on August 13, 2016, but two days later, the complaint was rejected as being

“corrupted.”    Based upon the trial court’s administrative order, and our decision in

Culler, a document that has been rejected as being corrupted is not deemed accepted for

filing. Although Rutti claims that he did not receive notice from the court of this

rejection and his need to resubmit the complaint, this alleged lack of notice does not

relieve him of the fundamental duty to keep abreast of the docket and the status of the

e-filed case.   And although it is not clear when Rutti discovered the rejection, the docket
demonstrates that the complaint was not filed until November 4, 2016, well beyond the

two-year statute of limitations for a negligence action.

       {¶17} Rutti contends that he was not afforded a “review procedure” in accordance

with the “Technical Failures” section of the court’s TAO, which provides that in the event

“a document submitted electronically for filing is not filed with the Court because of an

error in the transmission of the document to the e-Filing System, * * * the Court may,

upon satisfactory proof, enter an order permitting the document to be deemed filed as of

the date it was electronically submitted.”        This permissive language, however, is

followed by a warning to counsel and parties that they “should not assume that such relief

is available on jurisdictional time limits (such as statutes of limitation or deadlines for

appeal).”    It is “a simple matter” for the party to review a document on the clerk’s

website after it has been submitted to ensure it has been accepted for filing, and the

burden is clearly on the e-filer.           Culler, 8th Dist. Cuyahoga No. 101386,

2014-Ohio-5434, at ¶ 16.

       {¶18} In light of the foregoing, we find that the complaint conclusively

demonstrates, on its face, that Rutti’s complaint was filed more than two months beyond

the applicable statute of limitations period.    Therefore, the trial court did not err in

granting Dobeck’s Civ.R. 12(B)(6) motion to dismiss.

       {¶19} Judgment affirmed.

       It is ordered that appellee recover of appellant 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.



________________________________________
TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
