CCI SUPPLY, INC. 3077 Kettering Blvd. Point West, Suite 2 10 Dayton, Ohio 45439 trial court, the...

IN THE SUPREME COURT OF OHIO

3OCIIMAN & PLUNKETCO., L.P.A.

3077 Kettering Blvd.Point West, Suite 210

Dayton, Ohio 45439

CHRISTOPHER L. MASDEN,

APPELLEE ,

vs.

CCI SUPPLY, INC. et al.,,

APPELLANTS.

CASE NO. 2008-1982

ON APPEAL FROM THEMONTGOMERY COUNTY(SECOND DISTRICT) COURTOF APPEALS

APPELLEE CHRISTOPHER L. MASDEN'S MEMORANDUM IN RESPONSE TOAPPELLANT CCI SUPPLY, INC.'S

MEMORANDUM IN SUPPORT OF JURISDICTION

Gary D. Plunkett (0046805)Brett Bissonnette (0076527)HOCHMAN & PLUNKETT CO. LPA3077 Kettering Blvd., Suite 210Dayton, OH 45439(937) 228-2666Fax (937) [email protected] FOR APPELLEE,CHRISTOPHER L. MASDEN

William R. Thomas (0055240)Cheryl L. Jennings (0040460)THOMAS & COMPANY, LPA163 North Sandusky St., Suite 103Delaware, OH 43015(740) 363-7182Fax (740) 363-7153wthomasnn,thomaslawlna.comCOUNSEL FOR APPELLANT CCI SUPPLY, INC

Doug UnverAssistant Attomey GeneralWorkers' Compensation Section150 E. Gay St., 22"d FloorColumbus, OH 43215COUNSEL FOR ADMINISTRATORBWC

Gary P. Martin (0066105)Corporate CounselCLEVELAND CONSTRUCTION, IN5390 Courseview Dr.Mason, OH 45040(513) 398-8900gmartinn.clevelandconstruction.comCO-COUNSEL FOR APPELLANT,

CCI SUPPLY, INC.

STATEMENT OF APPELLEE'S POSITION AS TO WHETHER A SUBSTANTIALCONSTITUTIONAL QUESTION IS INVOLVED. WHETHER. LEAVE TO APPEAL IN

A FELONY CASE SHOULD BE GRANTED, OR WHETHER THE CASE IS OFPUBLIC OR GREAT GENERAL INTEREST (S.CT. PRAC. R HI, Sec. 2(B)(1))

HOCFIMAN & PLUNKETTCO., L.P.A.


Dayton, Ohio 45439

This case involves neither a substantial constitutional question nor a felony. Additionally,

nd contrary to Appellant CCI Supply, Inc.'s ("CCI") assertions, this case is not of public or great

eneral interest. Therefore, this Court should decline to exercise discretionary jurisdiction in this

case.

This case presents nothing more than a routine workers' compensation claim appealed

into the Montgomery County Common Pleas Court pursuant to R.C. 4123.512. The sole issue in

the case was whether Appellee Christopher Masden ("Masden") was entitled to participate in the

workers' compensation fund for an injury which occurred on October 7, 2005; that issue turned

upon whether Masden's injury occurred "in the course of' and "arose out of' his employment

with CCI pursuant to R.C. 4123.01(C). No issue of public or great public interest was implicated

in the Montgomery County jury's ultimate decision allowing Masden the right to participate, and

no significant guidance would be given by this Court in any decision which re-visits the jury's

verdict.

The Second District Court of Appeals recited the pertinent facts in their decision

affirming the judgment entry, and denying CCI's claim that the verdict was against the manifest

weight of the evidence. Masden v. CCI Supply, Inc., Mont. App. No. 22304, 2008-Ohio-4396

¶12 - 5, 27. On October 7, 2005, Masden was a construction employee of CCI working to build a

Sam's Club in a Detroit, Michigan suburb. Id. at ¶2. Masden and his work crew were required to

stay in a run-down motel in a crime-ridden part of the suburb, close to the worksite, the Best

Value Inn, which was selected and paid for by CCI. Id. That evening, Masden, his brother, and

two other members of his crew were getting ready for bed in preparation for the next work day,

2

when a commotion developed outside. Id at ¶3. Masden's brother opened the door to ask the

individuals outside to go elsewhere when he was attacked by a man with a beer bottle. Id

FIOCI-IlVtAN & PLUNK6TI'CO., L.P.A.


Dayton, Ohio 45439

ollowing Masden's brother's fight with the attacker, Masden and his brother alerted the other

embers of their work crew of the skirmish, and decided that prudent action required finding

other place to stay. Id. While gathering their things, Masden's brother was confronted by the

oonunate of the beer-bottle attacker who was wielding a knife. Id. Masden's brother initially

ttempted to disarm the knife-wielding attacker. Id. Masden and the two other crew-members

'oined Masden's brother in disabling the knife-wielding attacker. Id In connection with

disarming the attacker, Masden suffered an injury. Id.

No crew-member was disciplined by CCI for their role in the events that transpired that

evening. Id. at ¶4. No crew-member was cited or arrested by the local police for their role in the

events. Id. However, the two unidentified men, one of whom was on parole, were arrested. Id.

A Montgomery County jury, properly charged with the law, reached the factual

conclusion that Masden's injury occurred "in the course of' and "arose out of' employment with

CCI. The Second District Court of Appeals concluded that the jury did not abuse its discretion in

reaching this result. The facts of this case demonstrate that (1) Masden was an employee of CCI

on the date of the injury; (2) Masden was staying overnight out-of-town at CCI's behest at the

time of the injury; (3) Masden was staying in the only motel that would have been paid for by

CCI; (4) Masden was injured while joining other crew-members in disarming a man who

threatened a fellow crew-member with a knife, while the group was attempting to collect their

belongings to go to a safer motel. There is nothing "shocking" about the Second District Court of

Appeals' decision that the jury's verdict was not against the manifest weight of the evidence,

3

iven that Masden was injured while attempting to defend the safety of a co-worker This iSriot a

,imple "fight" as has been alleged by CCI.

Generally, cases determining whether an injury occurs "in the course of' and "arise out

)f' employment for workers' compensation purposes are not cases "of public or great general

nterest." Workers' compensation cases are noted by this Court to be highly fact-specific. This

vourt has previously spoken to this issue:

"[W]orkers' compensation cases are, to a large extent, very factspecific. As. such, no one test or analysis can be said to apply toeach and every factual possibility. Nor can only one factor beconsidered controlling. Rather, a flexible and analytically soundapproach to these cases is preferable. Otherwise, the application ofhard and fast rules can lead to unsound and unfair results." Fisherv. Mayfield ( 1990), 49 Ohio St.3d 275, 280, 551 N.E.2d 1271.

HOCHMAN & PL[1NKETTCO., L.P.A.


Dayton, Ohio 45439

To believe CCI, this is the first time in the legal history of the entire nation that a

workers' compensation claim, similar to the circumstances surrounding the injury in the case at

bar, had been deemed compensable. The truth is, as discussed later in Masden's specific

responses to CCI's propositions of law, far more mundane that what is recognized by CCI.

There is no "cutting-edge" legal issue that needs to be determined by this Court. Rather,

this case is one of interest to two parties, CCI and Masden, not the public at large.l This case is

of limited precedential value due to the fact-intensive nature of the case, and the great flexibility

that juries are given to make determinations as to whether one has suffered an "injury" as that

term is defined under R.C. 4123.01. The jury found that Masden suffered an injury that occurred

"in the course of' and "arose out of' his employment with CCI, as he was injured attempting to

maintain the safety of a co-worker. Obviously, CCI received a benefit from Masden's efforts -

t While nominally, the Bureau of Workers' Compensation is a parry to a workers' compensation claim, the BWC hasplayed no active role in any proceedings due to CCI's status as a self-insured employer for workers' compensationpurposes.

4

preventing an injury to a co-worker allowed Masden's brother to continue workmg in CCI's

HOCftbIAN & PLUNAZTrCO., LP.A.


Dayton, Ohio 45439

mploy.

CCI now submits that this case presents matters of public or great general interest.

espite CCI's assertions before this Court, CCI's actions before the trial court clearly

emonstrated that CCI did not take the issue seriously, whatsoever. CCI had the opporhurity to

onvince the jury that Masden's injury did not occur "in the course of' and "arise out of'

mployment with CCI (which, in fact, they did argue in summation). Despite their argument,

CCI did not move the trial court for summary jud ent in its favor on the issue. CCI was

epresented by two attornevs at trial, Eugene Weiss, and Gary Martin. Notwithstanding this

representation, CCI managed to call no witnesses at trial to impeach the testimony of Masden

and witnesses at the scene of Masden's injury. CCI called no expert witnesses to tesfify that

Masden was not injured in the way that both he and his doctor testified. CCI submitted no

exhibits for the jury's consideration. Additionally, CCI requested no special interro ag tories which

would have demonstrated the basis for the jury's conclusions and correspondingly, any possible

error. Notwithstanding this lack of diligence on its own part, CCI now seeks the Supreme Court

of Ohio to intervene on its behalf, and declare that an injury determined to be compensable by a

Montgomery County jury who heard the facts and watched the witnesses, should now be deemed

non-compensable.

The conclusion that CCI's current claims, that this case involves an issue of "public or

great general interest," is greatly exaggerated. In addition to its lack of diligence at the trial court

level, CCI's conduct in the appellate proceedings has been unusual, to say the least. CCI made

unsubstantiated and improper assertions before the Second District Court of Appeals, which took

the rare action of ordering stricken portions of CCI's Appellant's Reply Brief:

5

• Statements which the Second District concluded cast aspersions on the integrity^6

HOCHNIAN & PLUNKHTTCO., L.P.A.

3077 Kettering Blvd.Point West, Suite 2 10

Dayton, Ohio 45439

trial court, the Honorable Mary Katherine Huffinan, and Dayton attorney Richard Hunt,which included the statement "[n]evertheless, the trial court's appearance of favoritismfor [appellees'] father (or stepfather) and /or Appellee's civil counsel cannot be sanctionedby this Court";

• Citations to an internet video containing an obscene performance from comedian DaveChappelle which contained numerous profanities and terms derogatory to African-Americans; and

• A statement referring to the scandal involving former New York Governor Eliot Spitzer.

histead of making proper arguments to the Second District Court of Appeals, CCI alleges

at the trial court process was tainted due to favoritism. CCI should not be given a second

chance to appeal this factual decision.

Of equal exaggeration are CCI's claims as to the number of Ohio workers who will be

affected by the Montgomery County jury's verdict. In its Memorandum in Support of

Jurisdiction, CCI's claims that nearly 1.2 million Ohio workers are suddenly entitled to possible

benefits improperly burdening the workers' compensation fund are wholly unsubstantiated. First,

and most importantly, it is impossible to identify any new and specific rale of law that can be

applied from the Montgomery Countv jurv's verdict. Secondly, to reach the conclusion that there

may be a "potentially explosive" expansion of the liabilities of the workers' compensation fund,

one would have to conclude that each of those 1.2 million workers is required to stay in

employer-provided lodging in order to perform their job duties. Of course, not all salespeople,

truck drivers, and construction workers are required to stay overnight. Therefore, even if a new

legal rule were created, the class of persons likely to be affected is actually much smaller than

the number quoted by CCI.

The simple truth is that a Montgomery County jury, hearing the facts of the case, decided

that Masden's injury occurred "in the course of' and "arose out of' employment with CCI. No

6

ovel legal question was presented, and the jury followed instructions based upon this Conrt''s ^

ronouncements of what standards to apply in deciding the issue of whether Masden's injury

ccurred "in the course of' and "arose out of' employment with CCI. CCI appealed the jury's

ecision to the Second District Court of Appeals, which concluded that competent, credible

vidence existed to support the verdict.Z No new issues are before this Court, and this Court

should not exercise discretionary jurisdiction.

Finally, CCI argues that the decision of the Second District is "in direct conflict with

three (3) decisions made by the Commissioners of the Industrial Commission" and "in direct

conflict with several other Ohio appellate court districts with strilcingly similar facts." The

Second District, on October 10, 2008, entered a decision which declined to certify a conflict with

any other district, finding that its decision was reconcilable with the other decisions that CCI

alleges are in conflict. Moreover, no mechanism exists within the Rules of Practice of the

Supreme Court to certify a conflict of an appellate district with decisions of the Industrial

Commission, therefore, CCI's assertions that the Second District Court of Appeals' decision

conflicts with published decisions of the Industrial Commission do not provide any additional

reasoning to support any decision by this Court to accept discretionary jurisdiction on the basis

of a conflict.

HOC.HMAN & PLUNKEITCO., L.P.A.


Dayton, Ohio 45439

Z CCI's argument to the Second District Court of Appeals regarding the jury's verdict was that it was against themanifest weight of the evidence.

7

HOCHMAN & PLUNKb4"IT

CO., L.P.A.3077 Kettering Blvd.Point West, Suite 210Dayton, Otuo 45439

^ PELLEE MASDEN'S ARGUMENTS IN SUPPORT OF HIS POSITION REGAf2DING`APPPELLANT CCI'S FOUR PROPOSITIONS OF LAW

(S.CT. PRAC. R III, Sec. (B)(2))

CCI's Proposition of Law No. 1

ppellee's response to AppeIlant CCI's Proposition of Law that "the 'Traveling Employee'octrine does NOT apply when the traveling employee is injured after work hours, while

on a purely personal mission, and the injurious activity is not consistent with the contractor hire and not logically related to the employer's business."

There is no need for this Court to accept discretionary jurisdiction in this case for the

purpose of examining Appellant CCI's Proposition of Law Number 1, as the law is well-settled

that "traveling employees" who are engaged in a "purely personal mission" are not entitled to

compensation for injuries. The numerous decisions of the various appellate courts cited by CCI

in its Memorandum in Support of Jurisdiction have conclusively settled this question. There is no

question that the law is consistent, especially given the Second District Court of Appeals'

decision denying the certification of a conflict.

Appellant CCI seeks this Court's intervention to declare that the facts in this case meet

the requirements of the "purely personal mission" exception to the traveling employee doctrine.

This is highly inappropriate. This Court is not a trier-of-fact. Appellant CCI had ample

opportunity to litigate the issue of whether the facts presented in this case meet the requirements

of the "personal mission" exception. Again, CCI failed to file for summary judgment on the

"personal mission" exception. It failed to ask for a directed verdict on the basis of the "personal

mission" exception. It did not ask for any jury instructions on the "personal mission" exception.

In addition, it did not ask for any special interrogatories regarding "personal mission" to be

submitted to the jury.

Despite the fact that the "personal mission" exception to the traveling employee doctrine

was never raised by CCI at the trial court level, it now requests this Court to accept discretionary

8

HOCFIIvIAN & PLUNKBITCO., L.P.A.


Dayton, Ohio 45439

urisdiction over this case on the basis of the application of the "personal mission" exception.

ecause CCI failed to raise the issue when it could have been considered by the jury, this Court

hould decline CCI's request for this Court to make a blanket ruling pertaining its application,

specially when CCI's proposition of law regarding the "personal mission" exception is merely a

e-statement of the law as consistently held by the various appellate districts.

Finally, the facts of this case do not support the conclusion that Masden was on a purely

"personal mission" which would bring him within the purview of this exception. Masden was

injured as his place of lodging while in the process of attempting to protect a co-worker from a

knife-wielding attacker, while his work crew was in the process of leaving a dangerous motel.

Because it is factually inapplicable, this Court should not accept discretionary jurisdiction.

CCI's Pronosition of Law No. 2

Appellee's response to Appellant CCI's Proposition of Law that "an employee injured as aresult of a fight or altercation which arises out of a personal dispute and is off site from theemployer's premises or work site is not eligible to participate in the Ohio workers'compensation fund."

This Court should not accept jurisdiction to pass upon CCI's Proposition of Law Number

2, as it is not applicable to the facts of the case, and also because a ruling by this Court on the

blanket rule proposed by CCI would undermine previous decisions of this Court which hold that

workers' compensation claims are to be mainly determined upon the facts of the individual case.

First of all, the adoption of CCI's Proposition of Law Number 2 would not change the

outcome in this case. Unlike the "personal mission" exception, CCI did raise the doctrine of

"horseplay" at the trial court level through a request for jury instructions, which was denied by

the trial court and upheld on appeal, on the basis that the uncontroverted testimony at trial failed

9

establish the existence of behavior delineated as "horseplay.0 CCI merely has re-cast its

HO(,'EIIvIAN & PLlINKE:TrCO., L.P.A.


Dayton, Ohio 45439

mplained error regarding the failure of the trial court to include its "horseplay" instructions as

overly-specific proposition of law.

Most importantly, however, CCI's Proposition of Law Number 2 contains elements which

are clearly inapplicable to the facts of this case, and as such, this Court would have to overturn

factual determinations made by a Montgomery County jury and upheld by the Second District

Court of Appeals to reach a different conclusion in this case, even if this Court were to adopt

Proposition of Law Number 2. CCI includes the proviso "arises out of a personal dispute" to

qualify the situations in which an employee injured in a fight or altercation while away from his

employer's premises, even though the facts of this case would make Proposition of Law Number

2 inapplicable to the case at bar.

The Second District Court of Appeals, in its decision, made this point clear in affirming

the decision of the trial court to refuse to instruct the jury on fighting under the facts of this case:

"{¶ 24} While it is true that a fight was involved in this case, amere fight does not automatically invite the application of thegeneral rule that injuries sustained in a fight are not compensable.The records indicate that the 'fight' was initiated not out of purelyprivate and personal reasons but only arose as a chain of eventswhen Charles Masden told another lodger to take his argument toanother place so that he and his brother could get the necessary restfor their next workday. Because workers' compensation claims arefact specific, instructing the jury on the fighting is likely to confusethe jurors, especially when the general fighting rule does notcompletely fit to the particular facts of our case." (Emphasisadded). Masden v. CCI Supply, Inc., Mont. App.No. 22304, 2008-Ohio-4396, at ¶24.

Because Proposition of Law No. 2 is not applicable to the facts of this case, it should not

be considered by this Court, and this Court should not accept discretionary jurisdiction over the

' The Second District found that the trial court's decision to exclude CCI's proposed jury instructions was not anabuse of discretion, as it found the proposed instructions to be inapplicable to the facts and likely to confuse the jury.

10

HOCBMMAN & PLUNKETTCO., L.P.A.


Dayton, Ohio 45439

atter. What CCI is deeming a "purely personal reason" was determined by the friider of fact;'

d by the Second District Court of Appeals on review, to not be so - Masden was injured

oming to the aid of a co-worker, which provided CCI with a benefit, since it would have

bviously been without a crew-member had Masden not done so, and had injury resulted from

asden's failure to intervene.

Moreover, previous decisions of this Court make it clear that workers' compensation

claims are fact-specific cases, and courts should decline to make hard and fast rules which can

lead to unjust results. See Fisher, supra. Should this Court accept discretionary jurisdiction, it

would open a"Pandora's Box" of requests from unhappy claimants and employers, seeking this

Court's intervention in routine jury verdicts deciding the facts of what constitutes "in the course

of' and "arising out of' for purposes of the statute. This Court's docket is simply too busy to

accept the tsunami of cases which would result from this situation.

CCI's Proposition of Law No. 3

Appellee's response to Appellant CCI's Proposition of Law that "the Second District Courtof Appeals incorrectly applied the law by erroneously applying the "special hazard rule" tothe facts of this case."

This Court should not accept jurisdiction over this case, and should not accept CCI's

Proposition of Law Number 3, as CCI fails to comply with S.Ct.R. III, Section 1(B)(1), which

required CCI to "include the proposition of law stated in syllabus form as set forth in Drake v.

Bucher (1966), 5 Ohio St.2d 37, at 39." Moreover, any limitations placed upon the "special

hazards" doctrine would not alter the result in this case because of the "two issue" rule.

In Drake, this Court explained that an appellant is required to "set forth a statement of the

rulees of law which he contends are applicable to the facts of the case and which, if appellant ,•.

were to prevail, could serve as a syllabus of the case." Id.

11

Appellant has failed to comply with this requirement. Instead of proposing a coricise

HoCHMAN & PLUNI{gITCO., L.P.A.

3077 Kettering Blvd,Point West, Suite 210

Dayton, Ohio 45439

ambiguous statement of law, CCI has simply stated its complaints regarding the Second

istrict's decision. The phrase "the Second District Court of Appeals incorrectly applied the law

y erroneously applying the 'special hazard rule' to the facts of this case" does not constitute an

appropriate syllabus for this Court's adoption.

More importantly, even if this Court were to adopt Appellant CCI's Proposition of Law

INo. 3, CCI could not demonstrate that the outcome in this case would be different. In its decision

in this case, the Second District Court of Appeals found that Masden's injury "arose out of' his

employment with CCI because Masden satisfied both the "totality of circumstances" and "special

hazards" test for "arising out of' under R.C. 4123.01(C). CCI did not request jury interrogatories

which would have limited the basis of the jury's decision, and subsequent affurnation by the

Second District, to the "special hazards" test. Therefore, CCI cannot complain of error, since it

cannot demonstrate that the basis of the decision is not the "totality of the circumstances" test,

and not the "special hazards" rule, because of the well-established "two issue" doctrine.

Readnour v. Cincinnati St. Ry. Co. (1950), 154 Ohio St. 69, 93 N.E.2d 587.

Even if "special hazards" were the only basis for the decision, the Second District Court

of Appeals noted that other districts have concluded that the "special hazards" test is not limited

to "coming and going" cases. See Luketic v. University Circle, Inc. (1999), 134 Ohio App.3d

217, 730 N.E.2d 1006 and Knox v. Ohio Bur. ofEmp. Services (1998), 125 Ohio App.3d 313,

708 N.E.2d 298. There was ample support for the Second District's conclusion.

CCI has failed to comply with this Court's specific requirements pertaining to the form of

a "proposition of law." Moreover, CCI cannot demonstrate that this Court's decision to pass upon

12

e Second District's application of the "special hazards" rule would dictate a differentresultiri

his Court from the decision of the Second District.

CCI's Pronosition of Law No. 4

ppellee's response to Appellant CCI's Proposition of Law "the Second District Court ofAppeals erroneously interpreted O.R.C. §4123.512 as a "venue" provision. O.R.C.§4123.512, by its clear and unambiguous wording, is a jurisdictional requirement,therefore, the Common Pleas Court for Montgomery County lacked jurisdiction to hearthe case"

This Court should not address CCI's Proposition of Law Number 4 and determine that

R.C. 4123.512 is a jurisdictional requirement rather than a venue requirement. CCI's Proposition

of Law Number 4 is not in syllabus format, as is required by S.Ct. R. III, Section 1(B)(1)4 and is

legally incorrect based upon previous decisions from appellate courts. Moreover, the facts of this

case established that Montgomery County was the proper location to file the Notice of Appeal.

First of all, CCI has not addressed an issue in this case which turns upon Proposition of

Law Number 4. Regardless of whether R.C. 4123.512 is qualified as a jurisdictional provision or

a venue provision, the Montgomery County Court of Common Pleas determined that Masden

satisfied the provisions of R.C. 4123.512 by filing his Notice of Appeal in the Montgomery

County, the county in which the "contract of hire" was entered into. Masden submitted testimony

demonstrating that he was hired in a telephone call with a CCI supervisor, and was in

Montgomery County when he stated his acceptance of the job offer. Because the evidence

supports the trial court's decision that the "contract for hire" was entered into in Montgomery

County, this case does not turn upon CCI's Proposition of Law Number 4. Even if this Court

were to adopt Proposition of Law Number 4, it would also have to disturb a factual finding of the

trial court to apply Appellant CCI's desired conclusion and change the result in this case.

HOCHMAN & PLUNKMCO., L.P.A.

3077 Kettering sivd. ° See Appellee's response to CCI's Proposition of Law No. 3.Point West, Suite 210

Dayton, Ohio 45439 13

Secondly, and from a strictly legal perspective, should this Court adopt CCI's Proposition

of Law Number 4, it would overrule Shondel v. Am. Ship Bldg. Co. (Sept. 4, 1991), Lorain App.

o. 90 CA004939, which held that R.C. 4123.512's requirement that the notice of appeal be filed

'n the county of injury was a venue provision, not a jurisdictional provision, unlike the

redecessor statute, R.C. 4123.519. This decision has been followed by at least one other district5

and has stood for more than seventeen years. Of particular noteworthiness is the inclusion of a

provision into R.C. 4123.512 allowing the common pleas court of the wrong county to transfer

the case to the right county. Obviously, the inclusion of this provision into R.C. 4123.512

reflected the General Assembly's desire to make R.C. 4123.512's notice of appeal requirement a

venue provision, not a jurisdictional one - obviously, if it were a jurisdictional requirement, the

wrong county's common pleas court could not correct the error by transferring to another county.

Moreover, the inclusion of provisions allowing the use of the Civil Rules' venue rules fiuther

supports this conclusion.

This Court should not address CCI's Proposition of Law Number 4, as factually, this case

does not turn upon this issue. Moreover, this issue has been well-settled in Ohio law for more

than seventeen years.

HOCHMAN & P[.UNKErrCO., L.P.a

3077 Kettering Blvd.Point West, Suite 210Dayton, Ohio 45439

CONCLUSION

This case does not present an issue of public or great general interest. It is an appeal from

ajury decision deciding that Masden had the right to participate in the workers' compensation

fund for an injury deemed to have occurred "in the course of' and "arising out of' his

employment with Appellant, CCI Supply, Inc.

Numerous of Appellant's propositions of law do not comply with S.Ct.R III, Section

1 (B)(1), which require a clear and unambiguous statement sufficient to allow the issue to be

5 Mays v. Kroger Co. (1998), 129 Ohio App.3d 159, 717 N.E.2d 398 (Twelfth District).

14

adopted by the Court and placed in syllabus form. More importantly, the proposit"ionsafT4aw i

not contribute to the overall body of law, and do not pertain to this case. For the foregoing

reasons, this Court should decline to accept Appellant CCI Supply, Inc.'s invitation to accept

Idiscretionary jurisdiction over this case.

Respectfully submitted,

Gary D. Plunkett (0046805)Brett Bissonnette (0076527)HOCHMAN & PLUNKETT CO., LPA3077 Kettering Blvd., Suite 210Dayton, OH 45439(937) 228-2666Fax (937) 228-0508garvplunkettkhochmanplunkett.comAttorneys for Appellee Masden

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was served upon Douglas F.Unver, Assistant Attorney General, 150 E. Gay Street, 22nd Floor, Columbus, Ohio 43215; Gary P.Martin, 5390 Courseview Drive, Mason, Ohio 45040; and William Thomas,163 N. Sandusky Street,Suite 103, Delaware, Ohio 43015, by regular U.S. Mail, postage prepaid, this 28`s day of October2008.

Brett Bissonnette (0076527)Attorney for Appellee Masden

HOCHNIAN & PLUNKE7TCO., L.P.A.


Dayton, Ohio 45439 15

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