[Cite as Covarrubias v. Lowe's Home Improvement, L.L.C., 2021-Ohio-1658.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

ERIC COVARRUBIAS, : 

 Plaintiff-Appellant, : 

 No. 109819 

 v. : 

 

LOWE’S HOME IMPROVEMENT, 

L.L.C., ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED 

RELEASED AND JOURNALIZED: May 13, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-920317 

 

Appearances: 

Plevin & Gallucci, Co., L.P.A., David R. Grant, and Frank 

L. Gallucci, III; Paul W. Flowers Co., L.P.A., Paul W. 

Flowers, and Louis E. Grube, for appellant. 

Roetzel & Andress, L.P.A., and Nicholas P. Resetar, for 

appellee. 

MARY EILEEN KILBANE, J.: 

 Plaintiff-appellant Eric Covarrubias (“appellant”) appeals the 

judgment of the trial court granting judgment on the pleadings in favor of 

defendants-appellees Lowe’s Home Improvement, L.L.C., Lowe’s Companies, Inc., 
Lowe’s Home Improvement Warehouse, Inc., and Lowe’s Home Centers, Inc. 

(“appellees”) and dismissing his complaint. After a thorough review of the law and 

facts, we reverse and remand this matter to the trial court for further proceedings. 

I. Factual and Procedural History 

 On August 22, 2017, appellant filed a personal injury suit against 

appellees. The substance of appellant’s claims is not relevant to the instant appeal. 

 On August 22, 2019, appellant’s counsel attempted to file suit against 

appellees utilizing the electronic filing system of the Cuyahoga County Clerk of 

Courts. Appellant’s counsel encountered issues while filing the complaint, but 

believed that he had completed the process that afternoon. However, the complaint 

was not actually received by the clerk until the following morning, at which time it 

was docketed, and a confirmation email was sent to appellant’s counsel. The 

complaint was time-stamped as having been filed on August 23, 2019. 

 On September 13, 2019, appellant filed a motion for order correcting 

docket entry regarding his complaint. Along with the motion, appellant submitted 

an affidavit of his counsel, outlining the events that occurred when he attempted to 

file the case on August 22, 2019, and stating his belief that the case had been filed at 

that time. 

 Appellees filed their opposition to appellant’s motion, and appellant 

submitted a reply brief. The court held an evidentiary hearing on appellant’s 

motion. The defense called a representative from the clerk’s office, who 
acknowledged that glitches have occurred in the electronic filing system, but that 

she did not know if a glitch occurred in the filing of appellant’s complaint. 

 Appellant’s counsel also testified at the hearing and detailed the 

events that occurred when he attempted to electronically file the complaint. 

 The court ultimately denied appellant’s motion, finding that 

regardless of whether there had been an error on the part of appellant’s counsel or 

the clerk’s office, it lacked authority to change the docket and extend the 

jurisdictional deadline in the case. The court cited Loc.R. 39(H)(3)(a) of the Court 

of Common Pleas of Cuyahoga County, General Division, which provides that 

“[t]echnical failures, whether the fault of the court’s E-Filing system or otherwise, 

cannot extend jurisdictional deadlines (such as statutes of limitation or deadlines 

for appeal).” 

 Appellees filed a motion for partial judgment on the pleadings, 

related to their defense of the statute of limitations and shortly thereafter filed an 

amended motion for judgment on the pleadings. 

 Appellant filed a brief in opposition to the amended motion for 

judgment on the pleadings and his own motion for partial summary judgment upon 

statute of limitations defense, along with a motion for reconsideration of his prior 

motion to correct the docket. 

 The trial court granted appellees’ amended motion for judgment on 

the pleadings and dismissed the complaint without prejudice. The following day, 

the court denied appellant’s motion for partial summary judgment as moot and 
declined to reconsider its previous decision on appellant’s motion to correct the 

docket. 

 Appellant then filed the instant appeal, raising two assignments of 

error for our review: 

I. The trial court erred, as a matter of law, by dismissing plaintiffappellant’s personal injury action as untimely under Civ.R. 12(C). 

II. By finding that plaintiff-appellant’s meritorious motion for partial 

summary judgment was moot, the trial court further erred as a matter 

of law. 

II. Law and Analysis 

A. Appellees’ Amended Motion for Judgment on the Pleadings

 In his first assignment of error, appellant argues that the trial court 

erred in granting judgment on the pleadings based upon a finding that appellant’s 

complaint was filed beyond the statute of limitations. 

 Motions for judgment on the pleadings are governed by Civ.R. 12(C). 

This rule provides that “[a]fter the pleadings are closed but within such time as not 

to delay the trial, any party may move for judgment on the pleadings.” In ruling on 

a Civ.R. 12(C) motion, the court is restricted to the allegations in the pleadings and 

any writings attached as exhibits to the pleadings. Schmitt v. Educational Serv. Ctr., 

8th Dist. Cuyahoga No. 97623, 2012-Ohio-2210, ¶ 9. “‘Civ.R. 12(C) requires a 

determination that no material factual issues exist and that the movant is entitled to 

judgment as a matter of law.’” Rayess v. Educational Comm. for Foreign Med. 

Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18, quoting 

State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569-570, 664 
N.E.2d 931 (1996). Judgment on the pleadings is appropriate where, after 

considering the material allegations of the pleadings and all reasonable inferences 

to be drawn therefrom in a light most favorable to the nonmoving party, the court 

finds that the moving party is entitled to judgment as a matter of law. Id. 

 We review a trial court’s decision to grant a motion for judgment on 

the pleadings de novo. Id. “If a statute of limitations defense is pleaded and the 

pleadings unequivocally demonstrate that the action was commenced after the 

limitations period expired, Civ.R. 12(C) relief is appropriate.” Mangelluzzi v. 

Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 9 (8th Dist.), citing Steinbrink v. 

Greenon Local School Dist., 2d Dist. Clark No. 11CA0050, 2012-Ohio-1438, ¶ 13; see 

also Gides v. Marcus & Millichap, 8th Dist. Cuyahoga No. 102595, 2015-Ohio-4383, 

¶ 10 (“When a party raises a statute of limitations defense in its answer, the defense 

is available as grounds for a motion to dismiss brought pursuant to Civ.R. 12(C).”), 

citing Zhelezny v. Olesh, 10th Dist. Franklin No. 12AP-681, 2013-Ohio-4337, ¶ 14. 

 There is no dispute in this matter that appellant’s complaint alleges 

claims for personal injuries under R.C. 2305.10, which are therefore subject to a 

two-year statute of limitations. There is also no dispute that appellant was required 

to file his complaint by August 22, 2019, in order to comply with the statute of 

limitations. 

 Before we can assess the propriety of judgment on the pleadings in 

this matter, we must analyze the underlying issue of whether appellant’s complaint 
was timely filed. The parties clearly acknowledge that this is an ancillary issue to the 

appeal and have briefed it accordingly. 

 Early after his complaint was filed, appellant moved the trial court for 

an order correcting the docket entry. The motion asked the court to correct the 

docket to reflect that the complaint was filed with the Cuyahoga County Clerk of 

Courts on August 22, 2019, rather than August 23, 2019. 

 In support of this motion, appellant presented the affidavit of his 

counsel, who stated that on the afternoon of August 22, 2019, he filed a complaint 

on behalf of appellant through the Cuyahoga County Clerk of Court’s Electronic 

Filing System. He further stated that, during the process, he had uploaded the 

proper file, submitted the correct payment information, and taken the same steps as 

he had in the past with other successful filings. Appellant’s counsel attached to his 

affidavit a printout of a webpage from the e-filing system that listed the new case 

under “My Filings.” 

 At no point did appellant’s counsel receive an email message or 

notification from the clerk’s office that the filing had been rejected or otherwise not 

accepted. Nevertheless, the following morning, his assistant checked the clerk’s 

online system and was unable to find a case number and/or docket for the 

complaint. The assistant then contacted the clerk’s office, who told her that they had 

the filing but that it had not been processed. No further steps were taken by 

appellant’s counsel, yet the complaint was then filed, albeit with a filing date of 

August 23, 2019. 
 The court held a hearing on appellant’s motion to correct the docket. 

Appellees called a witness from the clerk’s office, Jessica Kirkpatrick, to explain the 

filing process and address the circumstances of appellant’s filing. Ms. Kirkpatrick 

stated that there was no way of knowing whether a glitch in the system had occurred 

with regard to appellant’s filing but acknowledged that glitches had occurred in the 

past in other matters. 

 Ms. Kirkpatrick was questioned about appellant’s counsel’s printout 

of the webpage showing “My Filings,” where the filing status of the instant matter 

was noted as “i.” Ms. Kirkpatrick testified that the “i” means that the filing was in 

progress, but that it was not fully submitted yet. Ms. Kirkpatrick explained the 

process of electronically filing a new civil action as follows: 

You begin the filing, and automatically when you begin the filing, you 

do receive a confirmation number so that, as you stated, you can go 

back in and edit a filing should need be. 

You’ll upload your Complaint, put in your parties. Take you — the 

screen will take you to the payment. You’ll submit the payment and 

then you’ll scroll down to the bottom and then click “submit” for review, 

and that’s the final step when the case is sent to the Clerk’s office in our, 

what’s called our queue. It will come to us for review. 

 Ms. Kirkpatrick stated that when the e-filer hits “submit,” the filing 

status of “i” becomes an “r,” meaning “received.” Once the filing is received by the 

clerk’s office, it is reviewed by someone on the clerk’s staff, verified that the 

document is acceptable for filing, and then the “r” becomes a checkmark. 

 Appellant’s counsel stated in his affidavit that he pressed the “submit” 

button. Nothing happened, so he clicked it again. He then checked the “My Filings” 
page and noted that the case of “Eric Covarrubias v. Lowe’s Home Improvement, 

L.L.C., et al.” was listed. The case was actually shown twice with two separate E-file 

identification numbers. Because the case was listed under “My Filings” that 

afternoon, appellant’s counsel believed that he had completed the process well 

before the end of the day on August 22, 2019, and thus, had successfully filed the 

case within the statute of limitations. 

Since it was past 4:30 p.m. when he had finished, appellant’s counsel 

was not surprised that he did not receive a confirmation notice from the clerk’s office 

that evening. However, the next day, he still had not received a confirmation or 

rejection of the filing. When appellant’s counsel’s assistant contacted the clerk’s 

office regarding this, she was informed that the clerk’s office had the case but that it 

had not been processed yet. The filing was then accepted and assigned a case 

number without any further effort from appellant’s counsel. 

 E-filing is mandatory under the court’s local rules and electronic 

submissions are subject to screening by the clerk’s office prior to being accepted and 

docketed. Loc.R. 39(F)(3) provides that the clerk will perform a “clerk review” of 

the submitted documents during normal business hours and will either accept or 

reject the submission. “Clerk review” is defined as follows: 

A review of electronically filed documents by the Clerk of Courts. The 

clerk will review the data and documents electronically submitted to 

ensure the document is signed by the filer, is in compliance with all 

court formatting rules, is accompanied by the required payment, does 

not require a judge’s signature, and that the document matches what 

the filer states he or she is filing. 
Loc.R. 39(B)(1). 

 While appellees contend that nothing was submitted to the court on 

August 22, 2019, this assertion is belied by appellant’s counsel’s testimony that the 

complaint was eventually processed the following day through no further action by 

appellant’s counsel. The filing was in the clerk’s system and was able to be received 

and accepted by the clerk’s office without any additional steps taken by appellant’s 

counsel. 

Based upon the evidence before the court, the complaint was 

submitted for filing on August 22, 2019; accordingly, the timestamp should have 

reflected the same. Whether or not it was accepted by the clerk was entirely out of 

appellant’s counsel’s hands, and there is no assertion that there was any reason the 

complaint would not have been accepted. Given that appellant’s counsel had 

uploaded the complaint, selected the credit card to pay the filing fee, and hit 

“submit” prior to 5:00 p.m., which was well within the electronic filing deadline of 

11:59 p.m., it was reasonable for him to assume that the filing was in the queue to be 

processed and that he would receive confirmation of the filing the next day. 

 In denying appellant’s motion to correct the docket, the trial court 

relied heavily on Loc.R. 39(H), which provides that “[t]echnical failures, whether the 

fault of the court’s E-Filing system or otherwise, cannot extend jurisdictional 

deadlines (such as statutes of limitation or deadlines for appeal).” The trial court 

stated that it was immaterial whether it was an error on the part of appellant’s 
counsel or the court’s e-filing system. The court held that it was without authority 

to change the docket and extend the jurisdictional deadline. 

 However, the Supreme Court of Ohio has held that “the expiration of 

a statute of limitations is an affirmative defense that may deprive a plaintiff of a right 

to recover, but it does not extinguish the jurisdiction of the court over the subject 

matter.” Travis v. Thompson, 8th Dist. Cuyahoga No. 78384, 2001 Ohio App. 

LEXIS 2757, 8-9 (June 21, 2001), citing State ex rel. Jones v. Suster, 84 Ohio St.3d 

70, 75, 701 N.E.2d 1002 (1998). 

 Accordingly, there was no jurisdictional issue in this matter. 

Regardless, the court was not required to extend the statute of limitations; rather, 

the court simply had to deem appellant’s complaint filed as of August 22, 2019, the 

day that the evidence shows that appellant’s counsel completed all of the tasks 

necessary in order for the complaint to be accepted by the clerk’s office. 

 While we acknowledge that there is a difference between a party’s 

submission of a filing and the clerk’s acceptance thereof, there has been no assertion 

that appellant’s complaint was improper and should not have been accepted for 

filing. There was nothing further for appellant’s counsel to do to effect filing of the 

complaint. 

 Accordingly, we find that, based upon the evidence before it, the trial 

court should have deemed appellant’s complaint timely filed as of August 22, 2019, 

and consequently denied appellees’ motion for judgment on the pleadings. 

“Fairness and justice are best served when a court disposes of a case on the merits.” 
Sovey v. Lending Group of Ohio, 8th Dist. Cuyahoga No. 84823, 2005-Ohio-195, 

¶ 8, citing DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431 N.E.2d 644 

(1982). “It is always preferred that cases be decided on their merits rather than on 

technicalities.” Sovey, citing Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 

(1983). Fundamental fairness in the case sub judice requires that appellant’s 

complaint be deemed filed as of August 22, 2019. See, e.g., Jones v. Univ. Hosps. of 

Cleveland, 2018-Ohio-4704, 124 N.E.3d 390, ¶ 33 (8th Dist.) (reversing summary 

judgment after finding that appellant’s complaint should have been deemed timely 

filed); Rhoades v. Harris, 135 Ohio App.3d 555, 558-559, 735 N.E.2d 6 (1st 

Dist.1999) (same). 

 With the above in mind, we emphasize that our holding is limited to 

the particular facts of this case. We do not intend to hold that in every case where a 

party encounters technical difficulty in filing their complaint that the trial court 

should deem these cases timely filed. The appropriateness of such action should be 

examined on a case-by-case basis. 

Because appellant’s complaint should have been deemed filed on 

August 22, 2019, it was therefore error to grant judgment on the pleadings based 

upon the statute of limitations. Appellant’s first assignment of error is sustained, 

and this matter is reversed and remanded to the trial court for further proceedings.

B. Appellant’s Motion for Summary Judgment 

 In his second assignment of error, appellant argues that the trial court 

erred in finding that appellant’s motion for partial summary judgment and 
reconsideration was moot. Since we have sustained appellant’s first assignment of 

error, this issue has been rendered moot. 

III. Conclusion 

 The trial court erred in granting appellees’ motion for judgment on 

the pleadings where appellant’s complaint should have been deemed filed on the day 

prior and thus, within the statute of limitations. Appellant’s first assignment of error 

is therefore sustained. The judgment of the trial court is reversed, and this case is 

remanded for further proceedings. 

 Appellant’s second assignment of error is moot. 

Judgment reversed and remanded. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

 

MARY EILEEN KILBANE, JUDGE 

MICHELLE J. SHEEHAN, P.J., and 

EMANUELLA D. GROVES, J., CONCUR