[Cite as Strother v. Columbus, 2022-Ohio-4097.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Orenthal Strother, :

Plaintiff-Appellant, :

 No. 22AP-7

v. : (M.C. No. 21CVE-2559)

City of Columbus et al., : (ACCELERATED CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on November 17, 2022

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 County Municipal Court

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 
No. 22AP-7 2

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 stamp the complaint until February 1, 2021. In 

accordance with the service instructions, a bailiff personally served copies of the complaint 

and summons at the addresses listed on the complaint on March 1, 2021.

{¶ 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 Civ.R. 12(B)(6).

{¶ 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. R.C. 2305.10(A). Ohio Bell contended that Strother's action accrued on the date 

Strother's vehicle incurred damage—September 28, 2017—and the statute of limitations 

expired two years later, on September 28, 2019. According to the time stamp on Strother's 

complaint, it was filed on February 1, 2021—well after the statute of limitations expired. 

Therefore, Ohio Bell argued, Strother's failure to file his action within the two-year statute 

of limitations was apparent from the face of the complaint, entitling Ohio Bell to dismissal

pursuant to Civ.R. 12(B)(6). Ohio Bell also moved to dismiss the city's cross-claim because, 

Ohio Bell alleged, the city's cross-claim was derivative of Strother's action against 

defendants.
No. 22AP-7 3

{¶ 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 R.C. 

2305.19(A), Ohio's savings statute, Strother had one year from the date of the dismissal to 

refile his action. See id. ("In any action that is commenced * * *, * * * if the plaintiff fails 

otherwise than upon the merits, the plaintiff * * * may commence a new action within one 

year after the date of * * * the plaintiff's failure otherwise than upon the merits or within 

the period of the original applicable statute of limitations, whichever occurs later."). 

Because January 24, 2021 fell on a Sunday, Strother had until Monday, January 25, 2021, 

to refile his complaint. See Civ.R. 6(A) (when the last day of a period of time prescribed or 

allowed by statute is a Sunday, "the period runs until the end of the next day which is not a 

* * * legal holiday"). In an affidavit attached to the memorandum contra, Strother's 

attorney explained how he had placed the complaint in the drop box located in the 

municipal court on January 25, 2021. Based upon these facts, Strother asked the trial court 

to deny Ohio Bell's motion to dismiss.

{¶ 8} The city also moved for judgment in its favor on Strother's action. Unlike 

Ohio Bell, which had filed a Civ.R. 12(B)(6) motion to dismiss, the city filed a motion for 

summary judgment. However, similar to Ohio Bell, the city based its motion on Strother's 

alleged failure to file within the statute of limitations.

{¶ 9} The city contended that a two-year statute of limitations also applied to 

Strother's action against it, albeit under R.C. 2744.04(A), which applies to actions against 

a political subdivision. See id.("An action against a political subdivision to recover damages 

for injury, death, or loss to person or property allegedly caused by any act or omission in 

connection with a governmental or proprietary function * * * shall be brought within two 

years after the cause of action accrues, or within any applicable shorter period of time for 

bringing the action provided by the Revised Code."). The city acknowledged that Strother 

had previously asserted an action against the city regarding his damaged vehicle within this 

two-year statute of limitations. The city also conceded that Strother had voluntarily 

dismissed that action on January 24, 2020, giving Strother until January 25, 2021 to refile 

his complaint. However, according to the city, Strother's instant action was untimely 
No. 22AP-7 4

because the complaint bore a time stamp of February 1, 2021. The city argued that Strother 

did not refile his action within one year of the voluntary dismissal of his first action, 

entitling the city to summary judgment.

{¶ 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 

Civ.R. 12(B)(6) motion to dismiss on the ground that Strother failed to prove entitlement 
No. 22AP-7 5

to equitable tolling. A motion to dismiss for failure to state a claim upon which relief can 

be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 

125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. In construing a complaint upon a Civ.R. 12(B)(6)

motion, a court must presume that all factual allegations in the complaint are true and make 

all reasonable inferences in the plaintiff's favor. Id. at ¶ 12; LeRoy v. Allen, Yurasek & 

Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. A court may dismiss a claim under 

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

of the complaint conclusively shows that the claim is time barred. Schmitz v. NCAA, 155 

Ohio St.3d 389, 2018-Ohio-4391, ¶ 11; Ohio Bur. of Workers' Comp. v. McKinley, 130 Ohio 

St.3d 156, 2011-Ohio-4432, ¶ 13. Appellate court review of a trial court's decision to dismiss 

a claim pursuant to Civ.R. 12(B)(6) is de novo. McKinley at ¶ 12.

{¶ 14} In deciding a Civ.R. 12(B)(6) motion, a court may not consider factual 

allegations or evidence outside of the complaint. State ex rel. Scott v. Cleveland, 112 Ohio 

St.3d 324, 2006-Ohio-6573, ¶ 26; State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 

(1997); Loveland Edn. Assn. v. Loveland City School Dist Bd. of Edn., 58 Ohio St.2d 31, 32 

(1979). Consequently, a defendant may only assert a statute-of-limitations defense through 

a Civ.R. 12(B)(6) motion—and a court may only grant such a motion—when the defense is 

apparent from the face of the complaint. Gore v. Mohamod, 10th Dist. No. 21AP-526, 

2022-Ohio-2227, ¶ 14; Singleton v. Adjutant Gen. of Ohio, 10th Dist. No. 02AP-971, 2003-

Ohio-1838, ¶ 18. To conclusively establish the statute-of-limitations defense, the complaint 

must show both: (1) the relevant statute of limitations, and (2) the absence of factors that 

would toll the statute of limitations or make it inapplicable. Stafford v. Columbus Bonding 

Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, ¶ 23 (10th Dist.); Singleton at ¶ 19.

{¶ 15} In the case at bar, Strother did not contest that the two-year statute of 

limitations set forth in R.C. 2305.10(A) applied to his action against Ohio Bell. Under R.C. 

2305.10(A), Strother's cause of action against Ohio Bell accrued "when the injury or loss to 

person or property occur[ed]." As we stated above, Strother alleged in his complaint that 

his injury occurred when he drove over a recessed utility hole cover "[o]n or about 

September 28, 2017 at approximately 1:37 PM." (Compl. at ¶ 8.) Consequently, the 

complaint establishes that the statute of limitations accrued on September 28, 2017, and it 

expired two years later, on September 28, 2019. 
No. 22AP-7 6

{¶ 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 Civ.R. 12(B)(6) review cannot exceed the four corners of the complaint. Due 

to this rule, "when a complaint on its face is barred by a statute of limitation, [ ] it is the 

duty of the pleader to assert exceptions to the statute" in the complaint. Peterson v. 

Teodosio, 34 Ohio St.2d 161, 174 (1973). In other words, "where a statute of limitations 

problem is evident from the allegations in a complaint itself, the complaint in order to 

withstand a motion to dismiss must contain further allegations to suggest why the 

limitations bar does not apply." Gore, 10th Dist. No. 21AP-526, 2022-Ohio-2227, at ¶ 16; 

accord Vogel v. Huron Cty. Commrs., 6th Dist. No. H-92-048 (June 11, 1993) ("[W]here 

the complaint establishes a prima facie statute[-]of[-]limitations defense, then the plaintiff 

must bear the additional burden of pleading facts establishing an exception to the 

defense."). 

{¶ 18} The plaintiff's failure to meet its burden will result in dismissal. A trial court 

properly grants a Civ.R. 12(B)(6) motion to dismiss based on a facially apparent statute-oflimitations defense where the complaint contains no allegations supporting an exception to 

the defense. Gore at ¶ 11 (no allegations in the complaint supporting the application of the 

equitable estoppel doctrine); Omobien v. Flinn, 9th Dist. No. C.A. 29841, 2021-Ohio-2096, 

¶ 8-11 (no allegations in the complaint supporting the application of the savings statute); 

Engler v. Adjutant Gen. of Ohio, 10th Dist. No. 17AP-814, 2018-Ohio-2273, ¶ 10-11 (no 

allegations in the complaint supporting the application of the equitable estoppel doctrine); 

Rankin v. Rosolowski, 8th Dist. No. 104079, 2016-Ohio-7490, ¶ 10 (no allegations in the 

complaint supporting the application of the savings statute); Brisk v. Draf Industries, Inc., 

10th Dist. No. 11AP-233, 2012-Ohio-1311, ¶ 25 (no allegations in the complaint supporting 
No. 22AP-7 7

tolling due to the defendant's absence from the state); Kelley v. Stauffer, 10th Dist. No. 

10AP-235, 2010-Ohio-4522, ¶ 13-15 (no allegations in the complaint to supporting tolling 

due to the defendant's absence from the state); Kennedy v. Heckard, 8th Dist. No. 80234, 

2002-Ohio-6805, ¶ 11-12 (no allegations in the complaint supporting the application of the 

savings statute).

{¶ 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. Civ.R. 15(A). If necessary, a plaintiff may seek leave of court under Civ.R. 15(A) to 

amend the complaint, which a trial court should liberally grant to allow the plaintiff to 

properly assert an exception to a statute-of-limitation defense. Gore at ¶ 19; Vogel; accord 

Peterson, 34 Ohio St.2d at 175 (holding that the trial court erred in denying the plaintiff's 

motion to amend its complaint to add facts to establish an exception to a statute-oflimitations defense).

{¶ 20} In Savoy, this court failed to appreciate the recourse Civ.R. 15(A) affords a 

plaintiff who does not anticipate a motion for dismissal based on the statute-of-limitations 

defense. Savoy filed a complaint that established, on its face, that his action was not filed 

within the two-year statute of limitations. The complaint contained no allegations 

regarding factors that would toll the statute of limitations or make it inapplicable. The trial 

court, therefore, granted the defendant's Civ.R. 12(B)(6) motion to dismiss the action. On 

appeal, the Savoy court reversed the trial court's judgment because, when Savoy responded 

to the motion to dismiss, he presented information indicating he filed his action within the 

one-year period of the savings statute. Id. at ¶ 9. The court reasoned that, "it is always 

difficult to fairly serve the interest of justice by reaching the substantial merits of the case 

when forcing a plaintiff to anticipate affirmative defenses for which a plaintiff may, in fact, 

have a sound rebuttal in the complaint." Id.

{¶ 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 
No. 22AP-7 8

resolution of the statute-of-limitations defense early and, perhaps, unexpectedly, Savoy had 

a procedural mechanism, Civ.R. 15(A), through which to plead a factual rebuttal to the 

affirmative defense. Savoy, however, did not take advantage of his ability to amend. The 

interests of justice, therefore, did not weigh in Savoy's favor, defeating the rationale the 

Savoy court relied upon for its ruling. 

{¶ 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 Civ.R. 12(B)(6) motion, a court may not 

consider factual allegations or evidence outside of the complaint. Scott, 112 Ohio St.3d 324, 

2006-Ohio-6573, at ¶ 26; Fuqua, 79 Ohio St.3d at 207; Loveland Edn. Assn., 58 Ohio St.2d 

at 32. The Savoy court held that factual allegations made in response to a Civ.R. 12(B)(6)

motion to dismiss—but nowhere in the complaint—warranted denial of the motion. 

Because this holding hinges the ruling on a motion to dismiss on the factual allegations in 

a plaintiff's response, it violates with the well-settled rule prohibiting consideration of such 

extrinsic allegations. Moreover, Savoy conflicts with other precedent of this court that has 

held, as we stated above, that a trial court properly grants a Civ.R. 12(B)(6) motion to 

dismiss based on a facially apparent statute-of-limitations defense where the complaint 

contains no allegations supporting an exception to the defense. See Gore, 10th Dist. No. 

21AP-526, 2022-Ohio-2227, at ¶ 11; Engler, 10th Dist. No. 17AP-814, 2018-Ohio-2273, at 

¶ 10-11; Brisk, 10th Dist. No. 11AP-233, 2012-Ohio-1311, at ¶ 25; Kelley, 10th Dist. No. 

10AP-235, 2010-Ohio-4522, at ¶ 13-15. We, consequently, must overrule Savoy. 

{¶ 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. An appellate court should not reverse a correct judgment 
No. 22AP-7 9

because the trial court relied on an erroneous reason for its determination. Stammco, 

L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 51. In other words, 

an appellate court will affirm a trial court's judgment if the court achieves the right legal 

result, even if the court's reasoning is wrong. Hassey v. Columbus, 10th Dist. No. 17AP726, 2018-Ohio-3958, ¶ 33. 

{¶ 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 R.C. 2305.10(A), a court can only 

conclude that Strother's action is time barred. Thus, the trial court properly granted Ohio 

Bell's Civ.R. 12(B)(6) motion to dismiss.1

{¶ 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 Civ.R. 56 when 

the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the 

moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come 

to but one conclusion when viewing the evidence most strongly in favor of the nonmoving 

party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, 

Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 

158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for 

summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court 

conducts an independent review, without deference to the trial court's determination. Zurz 

v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. 

Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).

{¶ 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 Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party 

1

 In so ruling, we note that the city did not file a cross-appeal challenging the dismissal of its cross-claim 

against Ohio Bell. Consequently, our review of the trial court's judgment to grant the motion to dismiss 

does not include its decision to dismiss the city's cross-claim. We express no opinion regarding that 

decision.
No. 22AP-7 10

must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that 

there are no genuine issues of material fact and the moving party is entitled to judgment as 

a matter of law. Id. If the moving party meets its burden, then the nonmoving party has a 

reciprocal burden to set forth specific facts showing that there is a genuine issue for trial. 

Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293.

{¶ 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 January 25, 2021 to refile his action pursuant to 

the savings statute and Civ.R. 6(A). The city argued that Strother had not refiled his action 

timely. In response, Strother asserted that the trial court should apply the equitable tolling 

doctrine. 

{¶ 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. 
No. 22AP-7 11

{¶ 31} Pursuant to Civ.R. 3(A), "[a] civil action is commenced by filing a complaint 

with the court, if service is obtained within one year from such filing upon a named 

defendant * * *." Generally, a party must file a document "by filing [it] with the clerk of 

court * * *." Civ.R. 5(E). "A document is 'filed' when it is deposited properly with the clerk 

of courts." Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, ¶ 7, vacated in part on 

reconsideration on other grounds, 126 Ohio St.3d 1227, 2010-Ohio-3754. Accomplishing 

the "filing" of a document does not depend on the clerk's performance of its duties, such as 

the duty to time stamp or docket the complaint. Id. "[A] party 'files' by depositing a 

document with the clerk of court, and then the clerk's duty is to certify the act of filing. In 

short, the time or date stamp does not cause the filing; the filing causes the certification." 

Id.

{¶ 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 a method endorsed by the municipal court for the receipt 

of civil filings. A reasonable finder of fact, therefore, could conclude that Strother filed his 

complaint on January 25, 2021. While the clerk did not time stamp the complaint until 

February 1, 2021, that time stamp is merely evidence of a date of filing that contradicts 

Strother's evidence. See Rouse at ¶ 8, quoting King v. Penn, 43 Ohio St. 57, 61 (1885)

(holding that the endorsement on the complaint of " 'the fact and date of filing is but 

evidence of such filing' "). 

{¶ 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.
No. 22AP-7 12

{¶ 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 Civ.R. 12(B)(6)

motion to dismiss. We sustain Strother's assignment of error with regard to the city, with 

the caveat that we find that the trial court committed a legal error, not an abuse of 

discretion, in granting the city summary judgment.

{¶ 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.