IN THE SUPREME COURT OF OHIO

Christopher Feckner,08-0023

Appellee,

vs.

Donley's, Inc., et al.,

Appellants.

On Appeal from the CuyahogaCounty Court of Appeals,Eighth Appellate District

Court of AppealsCase No. CA-06-088926

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT DONLEY'S, INC.

Louis J. Licata [0007034]Jody Perkins Ryan [0052036] [Counsel of Record]David J. Kovach [00211171Licata & Toerek6480 Rockside Woods Blvd. South, Suite 180Independence, OH 44131Phone: (216) 573-6000Fax: (216) 573-6333E-mail: IilQlicatalaw.comipr@completecounsel.comdi kCo?comp letecou nse l.com

Attorneys for Appellant Donley's, Inc.

JAN 0 7 Z008

OLVRK OF COURTSUPR^M^FHro

David E. Nager[0046792]Jerald Schneiberg [0062298]Jennifer Lawther [0066761]Nager, Romaine & Schneiberg Co., L.P.A.27730 Euclid AvenueCleveland, Ohio 44132Phone: (216) 289-4740Fax: (216) 289-4743E-mail: davenagerQaol.comjschneibergC?gmail.comjenniferlawther@gmail.com

Attorneys for Plaintiff-AppelleeChristopher Feckner

Eugene MeadorAssistant Attorney GeneralState Office Building, 12th Floor615 W. Superior AvenueCleveland, Ohio 44113

Attorney for the Administrator of theBureau of Workers' Compensation andthe Industrial Commission of Ohio

TABLE OF CONTENTS

Paqe

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST ...........................................................................................1

STATEMENT OF THE CASE AND FACTS .............................................................................2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...............................................4

PROPOSITION OF LAW NO. 1: In a R.C. 4123.512 appeal, the onlyact required by the appealing party to vest the trial court withjurisdiction is the timely filing of a notice of appeal .............................................4

PROPOSITION OF LAW NO. 2: In an employer-initiated R.C. 4123.512Appeal, the Plaintiff's obligation to prosecute the action remainsinviolate regardless of whether the parties avail themselves of thevoluntary dismissal options provided within Civ. R. 41(A)(1)(a);41(A)(1)(b) OR 41(A) (2) ..........................................................................................5

PROPOSITION OF LAW NO. 3: The Appellee Plaintiff in anemployer-initiated worker's compensation appeal cannot avoidjudgment by failing to refile his complaint pursuant to the savingsstatue following a joint voluntary dismissal ............................................................9

CONCLUSION ............................................................................................................15

PROOF OF SERVICE ............................................................................................................16

APPENDIX Appendix Page

Opinion of the Cuyahoga County Court of Appeals(October 4, 2007) ......................................................................................................1

judgment Entry of the Cuyahoga County Court of Appeals(November 21, 2007) .................................................................................................11

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST

This case presents critical issues for the future of all injured workers and employers in Ohio

who must utilize and therefore understand the application of R.C. 4123.512 and its interplay with

the Ohio Rules of Civil Procedure, particularly Civ. R. 41.

In this case, the court of appeals has decided to permit employers to dismiss their R.C.

4123.512 appeals, without the consent of the injured workers who have the burden of proof in a

R.C. 4123.512 appeal. This decision creates a procedure contrary to the 2006 legislative changes

made to R.C. 4123.512 within Senate Bill 7 whereby injured workers are required to obtain the

consent of the employer prior to filing a voluntary dismissal in an employer-initiated appeal. The

court of appeals also decided to permit employer's to refile those previously dismissed notices of

appeal within the one year savings statute contained within R.C. 2305.19 rather than the sixty-day

statute of limitations contained within 4123.512.

In order to create this contrary procedure, the appellate court concluded that this Court's

decision in Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 536, 2006-Ohio-1712 did not control

this case stating: "The instant case, however, is distinguishable from Fowee because the parties filed

a joint voluntary dismissal without prejudice pursuant to Civ.R.41(A)(1)(b). Therefore, both

Feckner's complaint and Donley's appeal were voluntarily dismissed without prejudice. Donley's

notice of appeal did not remain pending until the refiling of Feckner's petition." (Opinion @ p. 5)

As a result, the appellate court obliterated the sixty-day statute of limitations contained within R.C.

4123.512 and created new law in conflict with the amended statute when it held: "We thus hold

that a plaintiff-employee and defendant-employer may employ Civ. R. 41(A)(1)(b) to jointly and

voluntarily dismiss their respective notice of appeal and complaint to the common pleas court

brought by an employer under R.C. 4123.512. Joint voluntary dismissals are subject to R.C. 2315.19

[sic.], and both the claimant's petition and the employer's notice of appeal are voluntarily dismissed

without prejudice as a result thereof. Donley's failed to timely refile its notice of appeal pursuant to

R.C. 2305.19 following the parties' joint notice of voluntary dismissal and, therefore, the trial court

lacked jurisdiction to rule on Donley's motion for judgment on the pleadings." (Opinion Q p. 7)

If this decision is allowed to stand, the workers compensation appellate process will be

chaotic and uncertain and would lack finality. In order to reduce confusion and clarify the rights of

the parties involved in an appeal from the Industrial Commission of Ohio ("ICO"), this court must

grant jurisdiction to hear this case and review the erroneous and dangerous decision of the court of

appeals.

STATEMENT OF THE CASE AND FACTS

On February 15, 2000, Appellee Christopher Feckner injured himself while working for

Appellant Donley's. [See Pagination of Record ("POR") 2, Paragraph 4.] Appellee filed a workers

compensation claim with the Ohio Bureau of Workers Compensation ("BWC"). [See POR 2,

Paragraph 6.] The BWC assigned Claim Number 00-328899. [See POR 2, Paragraph 6.] The

Industrial Commission of Ohio ("ICO") allowed the claim for the soft tissue conditions described as

"cervical strain and lumbar strain". [See POR 2, Paragraph 6.]

On December 5, 2000, Appellee moved the ICO to amend his claim to include an additional

condition of "herniated disc L5-S1 or aggravation." [See POR 2, Paragraph 7.] By Order dated and

mailed April 7, 2001, the ICO allowed the additional condition. [See POR 2, Paragraph 7.]

Appellant appealed from this decision, however the ICO affirmed the allowance of the claim. [See

POR 2, Paragraph 8.] The ICO refused the Appellant's final administrative appeal. [See POR 2,

Paragraph 9.]

Appellant ("Donley's") commenced the underlying action by filing it's notice of appeal on

August 13, 2001 from the ICO order allowing Appellee to participate in the workers' compensation

2

fund for the additionalcondition of "herniated disc L5-S1 or aggravation". [See POR 1] Pursuant to

R.C. 4123.512 Appellee filed his complaint on August 20, 2001 and Appellant Donley's timely filed

it's answer. [See POR 2 & 9]

Appellee then filed a "Notice of joint Voluntary Dismissal Without Prejudice" pursuant to Rule

41(A) of the Ohio Rules of Civil Procedure, [See POR 20] The dismissal was signed by both parties.

[See POR 20] In response, the Court entered the following journal entry:

Court notified case is dismissed without prejudice at plaintiff's costs.Plaintiff ordered to notify the court of refiling of the complaint withinseven days of same by providing the court with a courtesy copy ofthe refiled complaint. OSJ Vol. 2674 Pgs. 0517-0519. [See POR 21]

Appellee did not comply with this court order and did not re-file his complaint on or before

December 3, 2002 in accordance with the savings statute.

As a result, on September 21, 2006, Appellant filed a Motion for Judgment on the Pleadings,

arguing that Appellee's claim for the additional condition must be denied. [See POR 22]

On September 26, 2006, the Court issued an order stating:

Motion for judgment on pleadings is stricken; this court has nojurisdiction to issue judgment on the pleadings on a dismissed cse.Book 3677 Page 0207 [See POR 23]

On September 29, 2006, Appellee filed a Brief in Opposition to Appellant Ernployer's Motion for

judgment on the Pleadings, apparently before receipt of the trial court's order striking Appellant

Employer's motion for judgment. [See POR 25] In response, on October 5, 2006, the Court issued

the following order:

Counsel are ordered to cease filing pleadings on this dismissed case.The case was DWOP on 12/3/01; therefore, this court's jurisdictionended on the date of journalization of that order. As this was avoluntary dismissal, no jurisdiction is retained for post-judgmentmotions and no jurisdiction exists. This case number is inactive, andmust remain inactive due to the DWOP. The clerk is directed not toaccept or file any future pleadings filed under this case number. Book3686 Page 0144 [See POR 26]

3

Appellant initiated the within appeal by filing it's notice of appeal on October 26, 2006.

[See POR 27] The parties briefed the court and orally argued their positions before the appellate

court. On October 4, 2007, the court of appeals issued its announcement of decision affirming the

trial court order. [See Appendix @ 1] Appellant timely filed its application for reconsideration, which

the court denied by journal entry filed on November 21, 2007. [See Appendix Q 11]

In support of its position on these issues, the Appellant presents the following arguments.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1

IN A R.C. 4123.512 APPEAL, THE ONLY ACT REQUIRED BY THE APPEALINGPARTY TO VEST THE TRIAL COURT WITH JURISDICTION IS THE TIMELY FILINGOF A NOTICE OF APPEAL.

R.C. 4123.512 governs workers compensation appeals to court and states, in relevant part:

(A) The claimant or the employer may appeal an order of theindustrial commission made under division (E) of section 4123.511 ofthe Revised Code in any injury or occupational disease case, otherthan a decision as to the extent of disability to the court of commonpleas of the county in which the injury was inflicted or in which thecontract of employment was made . . . The appellant shall file thenotice of appeal with a court of common pleas within sixty days afterthe date of the receipt of the order appealed from or the date ofreceipt of the order of the commission refusing to hear an appeal of astaff hearing officer's decision under division (D) of section 4123.511of the Revised Code. The fi/ing of the notice of the appeal with thecourt is the only act required to perfect the appeal

(B) The notice of appeal shall state the names of the claimant and theemployer, the number of the claim, the date of the order appealedfrom, and the fact that the appellant appeals therefrom.

(D) Upon receipt of notice of appeal the clerk of courts shall providenotice to all parties who are appellees and to the commission.

4

Appellant Donley's complied with R.C. 4123.512 by filing its Notice of Appeal within sixty (60) days

from its receipt of the final order of the ICO allowing his claim for the additional condition of

"herniated disc L5-S1 or aggravation". [See POR 1] This act vested the trial court with jurisdiction.

The court of appeals however, reasoned that the trial court did not have jurisdiction to rule

on Donley's motion for judgment on the pleadings as follows: "Thus, when Feckner failed to refile

his complaint within one year and Donley failed to refile its notice of appeal or its motion for

judgment on the pleadings within one year, the trial court lacked jurisdiction to rule on Donley's

motion for judgment on the pleadings four years later," [See Appendix, Opinion Q 61 This

reasoning confuses the notice of appeal, which vests the trial court with jurisdiction, and the petition

or complaint, which commences the substantive appeal.

The petition or complaint could not be filed unless the notice of appeal preceded it, which it

did. For the court of appeals to say it did not have jurisdiction to rule on Donley's motion because it

was not filed within the one year savings statute is wholly inconsistent with its prior statement that it

did not have jurisdiction because Feckner failed to refile his complaint. The trial court had

jurisdiction because Donley's filed its notice of appeal. No further act was required.

PROPOSITION OF LAW NO. 2

IN AN EMPLOYER-INITIATED APPEAL, THE PLAINTIFF'S OBLIGATION TOPROSECUTE THE ACTION REMAINS INVIOLATE REGARDLESS OF WHETHER THEPARTIES AVAIL THEMSELVES OF THE VOLUNTARY DISMISSAL OPTIONSCONTAINED WITHIN CIV. R. 4](A)(1)(a); 41(A)(1)(b) or 41(A)(2).

Appellee is considered the plaintiff for all aspects of the employer-initiated appeal following

the filing of the notice of appeal. Fowee, citing Robinson u B.O.C. Group, Gen. Motors Corp.

(1998), 81 Ohio St.3d 361, 691 N.E.2d 667 and Kaiser v. Ameriternps, Inc. (1999), 84 Ohio St.3d

411, 414, 704 N.E.2d 1212. As noted in Robinson, [r]egardless of who files the notice of appeal,

the action belongs to the claimant. The claimant has the burden of going forward with evidence

5

and proof to the satisfaction of the common pleas court, despite already having satisfied a similar

burden before the Industrial Commission." Id. at 366.

As noted in Kaiser, "R.C. 4123.512 provides a unique process for an appeal to the court of

common pleas regarding a claimant's right to participate in the State Insurance Fund. It gives the

claimant or the employer the right to appeal a decision of the Industrial Commission to the court of

common pleas. However, regardless of whether the claimant or the employer appeals the decision

of the Industrial Commission, it is the claimant's responsibility to file a petition showing a cause of

action to participate or continue to participate in the fund and setting forth the basis for the

jurisdiction of the court over the action." Kaiser at 413. See also, Zulevic v. Midland-Ross Corp.

(1980), 62 Ohio St.2d 116, 16 0.O.3d 140, 403 N.E.2d 986, in which the Ohio Supreme Court

stated that "where an employer appeals an unfavorable administrative decision to the common pleas

court, the claimant must re-establish his workers' compensation claim in that court even though the

claimant previously satisfied a similar burden at the administrative level." Id. at 18.

Thus, even though Appellee was successful administratively, the Appellant Donley's has a

right to appeal to the court of common pleas under ORC 4123.512. The employer-initiated appeal

is unique in that the appealing party is not the party with the burden of proof. Instead, Appellee

must prove by a preponderance of the evidence that he is entitled to participate in the benefits of

the workers compensation system for the additional conditions of herniated disc L5-S1 or

aggravation. Appellee's first step in this process since he was not the appealing party was the filing

of his petition or complaint. Appellee complied with this step by filing his Petition within thirty (30)

days following service. [See POR 2] Appellee was then afforded all of the rights provided by the

rules of civil procedure.

As a result of the statutory obligation to prosecute the claim and file the petition; Appellee

had the procedural "voluntary dismissaP" tool contained within Rule 41(A) of the Ohio Rules of Civil

6

Procedure at his disposal. The dismissal rule is available to plaintiff's alone because plaintiff's have

the burden of proof even in an employer-initiated workers compensation appeal. As with any other

plaintiff, the claimant in an R.C. 4123.512 appeal, may avail himself to the benefit of Civ.R. 41(A)

and voluntarily dismiss his complaint. Kaiser v. Ameritemps, lnc. (1999), 84 Ohio St.3d 411;

Robinson, supra.

Rule 41(A) of the Ohio Rules of Civil Procedure governs voluntary dismissals and states;

(A) Voluntary dismissal: effect thereof.

( 1) By plaintiff; by stipulation. Subject to the provisions of Civ. R.23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court,may dismiss all claims asserted by that plaintiff against a defendant bydoing either of the following:

(a) filing a notice of dismissal at any time before thecommencement of trial unless a counterclaim which cannot remainpending for independent adjudication by the court has been servedby that defendant;

(b) filing a stipulation of dismissal signed by all parties who haveappeared in the action.

Unless otherwise stated in the notice of dismissal or stipulation,the dismissal is without prejudice, except that a notice of dismissaloperates as an adjudication upon the merits of any claim that theplaintiff has once dismissed in any court.

Appellee took advantage of this rule of procedure and with the consent of Appellant

Donley's filed a joint voluntary dismissal. Rule 41 provides Appellee with this option. The rule

clearly states that "a plaintiff" may dismiss all claims asserted by that plaintiff against a defendant".

The rule does not provide the same option to a defendant. This is consistent with the case law

referenced herein that the action, regardless of which party files the appeal, belongs to the plaintiff.

Robinson, Kaiser, Zulevic, infra.

7

The dismissal was taken "pursuant to Ohio Civ. R. 41(A)" [See POR 20], which rule provides

three distinct dismissal options available to plaintiffs alone, not to defendants. As this Court has

recently explained in Olynyk v Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878:

"Civ.R. 41(A) establishes three mechanisms by which a plaintiffcan voluntarily

dismiss his or her own case" without prejudice. Frysinger v. Leech (1987), 32 Ohio

St.3d 38, 42, 512 N.E.2d 337. First, the plaintiff can dismiss the case without

approval of the court and without approval from any adverse party by simply filing a

written notice of dismissal before the trial begins. Civ.R. 41(A)(1)(a). Second, the

/ao intiffcan dismiss the case without court approval by filing a stipulation of dismissal

agreed to by all parties. Civ.R. 41(A)(1)(b). Third, the plaintiffcan ask the trial court

to dismiss the case. Civ.R. 41(A)(2). Frysinger, 32 Ohio St.3d at 42-43, 512 N.E.2d

337. See, also, Chadwick v. Barba Lou, (1982), 69 Ohio St.2d 222, 229, 23 0.O.3d

232, 431 N.E.2d 660. Each of the three methods places concrete limitations on the

p/aintifi"s ability to refile his or her complaint. Frysinger, 32 Ohio St.3d at 42-43, 512

N.E.2d 337; Chadwick, 69 Ohio St.2d at 229, 23 0.O.3d 232, 431 N.E.2d 660.

Olynyk, supra G^59. [Emphasis added.]

The appellate court suggests that the dismissal, because it was "joint" applied to both the

notice of appeal and the complaint; however, neither the trial court record nor the law support this

suggestion. Donley's submits it would be, at the least inconsistent and arguably an abomination of

the laws of construction, to imply that a workers compensation claimant is a plaintiff for purposes of

Civ.R. 41(A)(1)(a) and 41(A)(2), but not for purposes of 41(A)(1)(b), simply because the parties are

in agreement that dismissal of the complaint is the appropriate procedural tool. See, e.g., Robinson,

at 367.

The trial court not only accepted the voluntary dismissal, but also in its December 3, 2001

journal entry acknowledged that the voluntary dismissal was, without prejudice. [See POR 21] The

trial court, in its journal entry, acknowledged Appellee's continuing obligation to re-file his complaint

and further ordered Appellee to notify the court when he had so complied, as follows:

Court notified case is dismissed without prejudice at plaintiff's costs.Plaintiff ordered to notify the court of refiling of the complaint withinseven days of same by providing the court with a courtesy copy ofthe refiled complaint. OSJ Vol. 2674 Pgs. 0517-0519. [See POR 21]

8

It is axiomatic that in Ohio a court speaks through its journal entries. State V. King (1994), 70 Ohio

St.3d 158, 637 N.E.2d 903. See, also, State ex reL Worcester v. Donnellon (1990), 49 Ohio St.3d

117. The journal entry at issue clearly directed Appellee to notify the court of his re-filing of the

complaint. The court did not order Appellant Donley's to re-file its notice of appeal.

If there was any evidence that Appellant Donley's had dismissed its notice of appeal, the

dismissal and journal entry would not have been "without prejudice' because the savings statute

would not apply to the re-filing of a notice of appeal by a defendant. The parties do not disagree

on this point. If Appellee intended the Rule 41(A) dismissal to dismiss the notice of appeal with

prejudice rather than to dismiss the complaint without prejudice, Appellee had a duty pursuant to

Civ. R. 60(A) to ask the trial court to correct the record. Appellee did not make such a motion.

PROPOSITION OF LAW NO. 3

THE APPELLEE PLAINTIFF IN AN EMPLOYER-INITIATED WORKER'SCOMPENSATION APPEAL CANNOT AVOID JUDGMENT BY FAILING TO REFILEHIS COMPLAINT FOLLOWING A JOINT VOLUNTARY DISMISSAL.

Appellee had one year from the date of the entry of voluntary dismissal to re-file his

complaint as set forth within R.C. 2305.19.

R.C. 2305.19 describes the applicable one-year statute of limitations as follows:

(A) In any action that is commenced or attempted to be commenced,if in due time a judgment for the plaintiff is reversed or if the plaintifffails otherwise than upon the merits, the plaintiff or, if the plaintiff diesand the cause of action survives, the plaintiff's representative maycommence a new action within one year after the date of thereversal of the judgment or the plaintiff's failure otherwise than uponthe merits or within the period of the original applicable statute oflimitations, whichever occurs later. This division applies to any claimasserted in any pleading by a defendant.

9

Appellee did not comply with this mandatory one-year re-filing deadline. Appellee did not dispute

this fact. More than three years passed since the expiration of the statute of limitations on

December 3, 2002 before Donley's filed its motion for judgment on the pleadings. [See POR 231

In response, Appellee did not re-file his complaint; request leave to re-file his complaint; and

does not now claim any right to re-file his complaint. Nonetheless, despite these failures, and in

fact, because of them, Appellee's claim remains allowed for the additional condition described as

"herniated disc L5-S1 or aggravation".

As stated, R.C. 2305.19 only applies to a defendant who is assert/ng a claim in a pleading.

Here, as in all workers compensation appeals pursuant to RC 4123.512, the defendant does not

assert any claim (because a "claimant is considered the plaintiff regardless of who brings the appeal

under R.C. 4123.512." Robinson, supra.), but rather files its answer to plaintiff's complaint and

asserts defenses only. In fact, the only claim subject to a RC 4123.512 appeal and set forth in a

plaintiff's complaint is "a statement of facts in ordnary and conclse language showing a cause of

action to participate or to continue to participate in the fund. See, R.C. 4123.512. That claim must

be asserted by the plaintiff regardless of who initiated the appeal. Robinson, supra @ 366.

Because of this unique administrative appeal framework, defendant employers have long

urged the legislature to limit a plaintiff's ability to dismiss its complaint in an employer-initiated

appeal, particularly on the eve of trial. In 2006, Ohio's legislature complied with these requests and

Senate Bill 7, modified R.C. 4123.512, directly addressing this issue. R.C. 4123.512 now specifically

prohibits a plaintiff from dismissing an employer-initiated complaint unilaterally or without the

employer's consent. The statute now reads:

(D) Upon receipt of notice of appeal, the clerk of courts shall provide notice to all parties

who are appellees and to the commission.

10

The claimant shall, within thirty days after the filing of the notice of appeal, file apetition containing a statement of facts in ordinary and concise language showing acause of action to participate or to continue to participate in the fund and settingforth the basis for the jurisdiction of the court over the action, Further Aleadings shallbe had in accordance with the Rules of Civil Procedure, provided that service ofsummons on such Aetition shall not be reguired and Arovided that the claimant maynot dismiss the complaint without the employer's consent if the employer is the Aartythat filed the notice of appeal to court pursuant to this section. The clerk of the courtshall, upon receipt thereof, transmit by certified mail a cbpy thereof to each partynamed in the notice of appeal other than the claimant. Any party may file with theclerk prior to the trial of the action a deposition of any physician taken in accordancewith the provisions of the Revised Code, which deposition may be read in the trial ofthe action even though the physician is a resident of or subject to service in thecounty in which the trial is had. The bureau of workers' compensation shall pay thecost of the stenographic deposition filed in court and of copies of the stenographicdeposition for each party from the surplus fund and charge the costs thereof againstthe unsuccessful party if the claimant's right to participate or continue to participateis finally sustained or established in the appeal. In the event the deposition is takenand filed, the physician whose deposition is taken is not required to respond to anysubpoena issued in the trial of the action. The court, or the jury under theinstructions of the court, if a jury is demanded, shall determine the right of theclaimant to participate or to continue to participate in the fund upon the evidenceadduced at the hearing of the action. [Emphasis Added.]

This statutory change became effective October 11, 2006 and is instructive because it

adopts the exact procedural fact pattern at issue here. R.C. 4123.512 now complements Civ. R.

41(A)(1)(b) and, in fact, limits a Plaintiff's options in an employer-initiated appeal to the consent or

stipulated dismissal. Now, R.C. 4123.512 requires the plaintiff in an employer-initiated appeal to

obtain the consent or stipulation of the defendant-employer before dismissing the complaint. The

revisions to R.C. 4123.512 mirror the conduct of the parties here and further highlight the fact that

the comAlaint, not the notice ofaAAeal is dismissed by utilizing the consent or stipulated dismissal.

The revision clearly explains the plaintiff may dismiss his complaint only with the consent of

the employer if the employer filed the notice of appeal. If the legislature intended to give the

employer the option of dismissing its notice of appeal, it would have so provided. It did not.

Instead, the updated R.C. 4123.512 removes one of Civ. R. 41(A)'s three dismissal options,

11

specifically the voluntary or unilateral dismissal, available to a plaintiff in an employer-initiated

appeal.

Appellee's failure to comply with the trial Court's December 3, 2001 order, left Appellant

with no avenue to pursue its right to appeal under R.C. 4123.512. As a direct result of Appellee's

failure, Appellant Donley's filed its motion for judgment on the pleadings. [See POR 231 Appellant

Donley's was entitled to judgment as requested based upon established and binding case law from

lower courts around the state as well as from this Court. Sayre v Valley Ford Truck Sales, Inc.,

2000 OH 45463 (OHCA 2000); Rice v. Stouffer Foods Corp., (Nov. 6, 1997) Cuyahoga App. No.

72515; Fowee, supra, 108 Ohio St.3d 533, 2006-Ohio-1712; Robinson v. 8.0.C Group, Gen,

Motors Corp..(1998), 81 Ohio St.3d 361, 691 N.E.2d 667; Kaiser v Ameritemps, lnc. (1999), 84

Ohio St.3d 411, 415.

This Supreme Court held in Fowee, supra, 108 Ohio St.3d 533, 2006-Ohio-1712:

In an employer-initiated workers' compensation appealpursuant to R.C. 4123.512, after the employee-claimant files thepetition as required by R.C. 4123.512 and voluntarily dismisses it asallowed by Civ. R. 41(A), if the employee-claimant fails to refile withinthe year allowed by the saving statute, R.C. 2305.19, the employer isentitled to judgment on its appeal.

Fowee does not distinguish between voluntary dismissals taken under Civ. R. 41(Ax1)(a) or (b), but

rather addresses the entirety of Civ. R. 41(A).

In Fowee, the further issue before the court was whether the savings statute, R.C. 2305.19,

applied to employer-initiated appeals, pursuant to R.C. 4123.512. The court's stated primary

concern in holding that the employee could dismiss the employer's appeal was the employee's ability

to interminably prolong the proceedings. Here, Appellee prolonged the proceedings for an

additional three years. The Fowee decision confirms that Appellee will not be rewarded for his

inaction.

12

The Fowee decision is not a new statement of the law. As noted by this Supreme Court in

1998, in Robinson, supra:

[r]egardless of who files the notice of appeal, the action belongs tothe claimant. The claimant has the burden of going forward withevidence and proof to the satisfaction of the common pleas court,despite already having satisfied a similar burden before the IndustrialCommission. Our opinions have consistently held that the employee-claimant, despite having proven her claim before the IndustrialCommission, continues to carry the burden . of initially filing thepetition and proving her cause of action in what is essentially a trialde novo. Youghiogheny dr Ohio Coal Co. v. Mayfield (1984), 11Ohio St.3d 70, 71, 11 OBR 315, 464 N.E.2d 133. This remains trueeven when the employer seeks the appeal. As a result of theadjudication structure in these cases, some of the privileges ofplaintiff status are conferred on the employee-claimant. This decisionmakes clear that with those privileges come some of the plaintiff'sresponsibilities as well.

This issue has also been addressed in Kaiser v. Ameritemps, /nc. (1999), 84 Ohio St.3d 411,

415, 704 N.E.2d 1212, a case recognizing an employee's right to voluntarily dismiss an employer's

appeal to the court of common pleas. There, the Ohio Supreme Court noted:

Furthermore, an employee cannot perpetually delay refiling after avoluntary dismissal because the saving statute, R.C. 2305.19,precludes claims refiled beyond a year from the time of the dismissalof the original complaint. Lewis v. Connor (1985), 21 Ohio St.3d 1,21 OBR 266, 487 N.E.2d 285; Ross v. Wolf Enve%pe Co. (Aug. 2,1990), Cuyahoga App. No. 57015, unreported, 1990 WL 109082.

If an employee does not refile his complaint within a year's time, hecan no longer prove his entitlement to participate in the workers'compensation system. Rice v. Stouffer Foods Corp., (Nov. 6, 1997),Cuyahoga App. No. 72515. The voluntary dismissal of the claimant'scomplaint does not affect the employer's notice of appeal, whichremains pending until the refiling of claimant's complaint.

Additionally, in McKinney v. Ohio State Bureau Workers' Cornp., 10th Dist. No. 04AP-1086,

2005-Ohio-2330, appellant's claim was allowed for a lumbosacral sprain/strain. Thereafter, appellant-

McKinney filed a request to amend the allowance of the claim for an additional psychiatric disability.

13

The Industrial Commission recognized the claim for the psychiatric condition of "depressive

disorder." Pursuant to R.C. 4123.512, Appellee filed an appeal. Appellant-McKinney filed a

complaint, but thereafter voluntarily dismissed the complaint on July 3, 2003, pursuant to Civil Rule

41(A)(1). On September 27, 2004, Appellee filed a motion for judgment, requesting that the court

find in its favor as a matter of law, based on appellant's failure to re-file his complaint within one

year pursuant to the savings statute codified in R.C. 2305.19. On September 29, 2004, the trial

court granted Appellee's motion.

Appellant-McKinney argued that because he voluntarily dismissed his complaint and the Clerk

of Court subsequently terminated the case, the trial court did not have jurisdiction to enter judgment

in favor of Appellee without the case being reactivated. The court's reasoning relative to its

jurisdiction follows:

In a workers' compensation action, the filing of the complaint doesnot commence the action and confer jurisdiction. "The filing of anotice of appeal with the Industrial Commission of Ohio and theCourt of Common Pleas is the only act required to perfect the appealand vest jurisdiction in the court." Rice v. Stouffer Foods Corp. (Nov.

6, 1997), Cuyahoga App. No. 72515 at `5, citing Singer SewingMachine Co: u PuckePt(1964), 176 Ohio St. 32. If an employee filesa complaint, then dismisses said complaint, and "does not re-file hiscomplaint within a year's time, he can no longer prove his entitlementto participate in the workers' compensation system." Kaiser v.

Ameritemps, Inc. (1999), 84 Ohio St.3d 411, 415, citing Rice, supra."The voluntary dismissal of the complaint does not affect theemployer's notice of appeal, which remains pending until the re-filingof claimant's complaint." Id.

Therefore, the voluntary dismissal of appellant's complaint didnot dismiss Appellee's appeal, nor did it divest the court of itsjurisdiction. While the complaint may be dismissed, the appeal remainspending subject to a re-filing of the complaint under the savingsstatute. Rice, supra at *16. Accordingly, the court had jurisdiction todecide Appellee's motion for judgment.

While appellant did voluntarily dismiss his complaint, suchdismissal did not divest the court of its jurisdiction, nor did it dismissAppellee's appeal. Appellant failed to re-file his complaint within one

14

year in accordance with R.C. 2305.19, and therefore, appellee wasclearly entitled to judgment. Lewis v. Connor (1985), 21 Ohio St.3d1. There is no evidence, or even an allegation, that any differentresult was warranted.

In the case pending before this Court, there is no evidence that any different result is

warranted. The trial court record confirms that Appellee filed a voluntary dismissal of the Appellant's

appeal under Civ. Rule 41(A), with the consent of Appellant. The court ordered Appellee to pay

costs and to notify the court of his re-filing of his complaint. Appellee failed to re-file liis complaint

within one year in accordance with R.C. 2305.19, and therefore, Appellant was clearly entitled to

judgment.

The parties' choice here to file a voluntary dismissal under Civ. R. 41(A)(1)(b) rather than

Civ. R. 41(A)(1)(a) had absolutely no bearing on the court's jurisdiction and judgment should be

entered in favor of Appellant.

CONCLUSION

For all the foregoing reasons, this case involves matters of public and great general interest.

The Appellant requests that this court accept jurisdiction in this case so that the important issues

presented will be reviewed on the merits.

IS J1 ATA [0007034]JI Y f^2KINS RYAN [0052036]

VID J . KOVACH [0021117]CATA & TOEREK

Attorneys for Defendant Appellant Donley's, Inc.6480 Rockside Woods Blvd. South, Suite 180Independence, Ohio 44131Telephone: (216) 573-6000Facsimile: (216) 573-6333l i l©l icata law.co mjprQcompletecounsel.com;djk@completecounsel.comm

15

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Support of jurisdiction of Appellant Donley's, Inc.

G(has been sent by U. S. ordinary mail this ^ day of January, 2008 to:

David E. NagerJerald SchneibergJennifer LawtherNager, Romaine & Schneiberg Co., L.P.A.27730 Euclid AvenueCleveland, Ohio 44132

Attorneys for Plaintiff-AppelleeChristopher Feckner

Eugene MeadorAssistant Attorney GeneralState Office Building, 12th Floor615 W. Superior AvenueCleveland, Ohio 44113

Attorney for the Administrator of theBureau of Workers' Compensation andthe Industrial Commission of Ohio

i'Stovney f,6r Defendant-Appellant Donley's, Inc.

16

APPENDIX

NOV 2 12007

Talut a-f' .^^^^^^ ^^italo o:^^ ^ ^l'ifEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINI(4N? --_--- _._.^-No. 88926

CHRISTOPI-IER FECKNER

PLAINTIFF-APPELLEE

vs.

DONLEY'S, INC., ET A.L.

DEFENDANTS-APPELLANTS

JllD1.S11TE1V T:

AFFIRMED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-446226

BEFORE: Kilbane, J., Celebrezze, A.J., and Dyke, J.

RELEASED: October 4, 2007

JOURNALIZED: NOV 2 12007CA06088926 487543721![[ill [I[tl i[III I[C[I [Ili( ll[I^ [dlf [[^[IC ll^l if [f

VO647 Pooi®g

-1-

ATT'ORNEYS FOR APPELLANT

For Donley's, Inc.:

Jody Perkins RyanLouis J. LicataLicata & Toerek6480 Rockside Woods Boulevard, S.Suite 390Independence, Ohio 44131

ATTORNEYS FOR APPELLEES

For Christopher Feckner:

David E. NagerJerald A. SchneibergJennifer L. LawtherNager, Romaine & Schneiberg Co., L.P.A.27730 Euclid AvenueCleveland, Ohio 44132

For Administrator, OBWC:

Marc DannAttorney GeneralEugene B. MeadorAssistant Attorney GeneralState Office Building - 12t' Floor615 West Superior AvenueCleveland, Ohio 44113-1899

FILED AND JOIJRN.ALIZEDPER APP. R. 22(E)

(JOU 21 2007GERALD E. FUERST

CLERI; OF TpIE C^Uf^T OF AI>PElL3Rv- ^• ^.J\ DeP.

ANNOUNCEMENT OF DECISIONPERAPP. R. 221^^ 22(DJ At^l 261A)

REfi IvE;D

OCT 4 - 2007

GERALD E. F'UERSTCLERK QF^T,HE 0 RTAF APPEALS

6Y ^/ Dop.

f IA[i(1 [fl II 1[[[I ([[{[ If H[ (^IL( [(1([ Il41 7tII{ I[t[N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

vOR F, 4 7po n i t n

-1-

MARY EILEEN IKILBANE, J.:

On August 13, 2001, defendant-employer/appellant Donley's, Inc.

("Donley") filed an appeal to the trial court from a determination by the Ohio

Industrial Commission allowing plaintiff-employee/appellee Christopher Feckner

("Feckn.er") an additional claim for "herniated disc L5-S1 or aggravation."

On August 20, 2001, Feckner filed his complaint with the trial court. On

September 12, 2001, Donley filed its answer.

On November 28, 2001, the parties signed and filed a joint notice of

voluntary dismissal with the trial court stating:

"Now come the Plaintiff, Christopher Feckner, andDefendant Donley's Inc., through respective counsel, andhereby give notice to this Honorable Court ofjoint voluntarydismissal of the foregoing matter, without prejudice,pursuant to Civil Rule 41(A):'

On December 3, 2001, the trial court journalized the following:

"Court notified case is DWOP, at Pltfs costs. Pltf ordered tonotify the Court of refiling of the complaint within 7 days ofsame by providing the Court with a courtesy copy of theref°iled complaint. OSJ. Final."

On September 21, 2006, Donley, filed a motion for judgment on the

pleadings. On September 26, 2006, the trial court journalized the following,

"Motion for judgment on the pleadings is stricken; this court has no jurisdiction

VF1^647 R®It1

•2-

to issue judgment on the pleadings in a dismissed ese [sic] ." On September 29,

2006, Feckner filed a brief in opposition to Donley's motion for judgment on the

pleadings. On October 5, 2006, the trial court journalized the following:

"Counsel are ordered to cease. filing pleadings on thisdismissed case. The case was DWOP oin 12/3101; therefore,this court's jurisdiction ended on the date of journalizationof that order. As this was a voluntary dismissal, nojurisdiction is retained for post-judgment motions and nojurisdiction exists. This case number is inactive, and inustreinain inactive due to the DWOP. The Clerk is directed notto accept or file any future pleadings under this casenumber: '

On October 26, 2006, Donley timely appealed, raising two assignments of

error,

ASSIGNMENT OF ERROR NUMBER ONE

"The trial court erred to the prejudice of appellant employerby striking appellant employer's motion for judgment on thepleadings when such action had the effect of terminatingappelant [sic] employer's appeal under ORC 4123.512 froman Industrial Commission order and therefore allowingappellee employee to participate in the Worker'sCompensation Fund for the additional condition of"herniated disc L5-S1 or aggravation."

Donley argues that the trial court erred in striking its motion for judgment

on the pleadings for lack of jurisdiction. We disagree.

The Ohio Supreme Court held the following regarding Workers'

Compensation claims filed with the court of common pleas pursuant to R.C.

ti'fl, @ 64 7P 0 0 1 12

-3-

4123.512: a petition filed pursuant to R.C. 4123.512 is a "complaint"; regardless

of which party files a notice of appeal, the "action" is prosecuted by the

"claimant"; the claimant is the plaintiffin an employer-initiated appeal pursuant

to R.C. 4123.512; an employer's appeal pursuant to 4123.512 is not comparable

to a counterclaim in a civil matter; and lastly, the Ohio Rules of Civil Procedure

apply to R.C. 4123.512. Robinson v. B.O.C, Group, General Motors Corp., 81

Ohio St.3d 361, 1998-Ohio-432; see, also, Kaiser v. Ameritemps, Inc., 84 Ohio

St.3d 411, 1999-Ohio-360.

Additionally,

"The claimant files a complaint, pleads all jurisdictionalfacts, presents a claim for relief, appears in the caption ofthe complaint as a plaintiff, opens and closes the case, hasthe burden of production and persuasioii, and has the dutyto prosecute the action. A trial de novo takes place in theconunon pleas court within the traditional framework ofcivil trial, and the claimant is required to take allaffirmative steps necessary to have his or her claimlitigated" Robinson, 81 Ohio St.3d at 367.

Regarding voluntary dismissals and their application to claims made

under R.C. 4123.512, "A workers' coinpensation claimant may employ Civ.R.

41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought

by an employer under R.C. 4123.512," Kaiser, 84 Ohio St.3d at 412.

Additionally, "when an employer has appealed a decision of the Industrial

Commission to a court of common pleas under R.C. 4123.512, the court of

P610 6 4 7 Po®I 13

-4-

common pleas may subsequently grant a motion to voluntarily dismiss the

employee's complaint without prejudice under Civ.R. 41(A)(2)." Robinson, supra.

Lastly, the savings statute set forth in R.C. 2305.19 applies to R.C. 4123.512

appeals to the court of common pleas. Lewis v. Connor (1985), 21 Ohio St.3d 1.

Here, however, the plaintiff-employee and defendant-employer filed a joint

notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(b). Thus belies the

following issues for our review: whether Civ.R. 41(A)(1)(b) provides for both

parties to sign a voluntary dismissal without prejudice when an employer files

a notice of appeal pursuant to R.C. 4123.512; whether either party timely refiled

their respective complaint or notice of appeal pursuant to R.C. 2305.19 following

the parties' joint notice of voluntary dismissal in the instant action; and lastly,

whether the trial court retained jurisdiction to rule on defendant-employer's

motion for judgment on the pleading, filed four years and ten months after

dismissal of the case.

Ohio courts have held that where the plaintiff-employee voluntarily

dismisses his complaint with the trial court, defendant-employer's appeal

remains pending, subject to a refiling of the complaint under the savings statute,

R.C. 2305.19. See Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 2006-Ohio-

1712. This is so because "[t]he voluntary dismissal of the claimant's complaint

does not affect the employer's notice of appeal ***." Kaiser, supra. Thus, the

UP 64 7 1'0 0 1 1 4

-5-

trial court not only has jurisdiction to decide defendant-employer's motion for

judgment on the pleadings, but defendant-employer is entitled to judgment on

the pleadings when the plaintiff-employee fails to refile the petition within one

year pursuant to R.C. 2305.19. Fowee, supra.

The instant case, however, is distinguishable from Fowee because the

parties filed a joint voluntary dismissal without prejudice pursuant to Civ.R.

41(A)(1)(b). Therefore, both Feckner's complaint and Donley's appeal were

voluntarily dismissed without prejudice. Donley's notice of appeal did not

remain pending until the refiling of Feckner's petition.

Where a defendant-employer such as Donley files a notice of appeal from

the Industrial Commission to a court of common pleas pursuant to 4123.512, and

where defendant-employer and plaintiff-employee subsequently file a joint notice

of voluntary dismissal, R.C. 2315.19 applies, regardless of whether the refiled

document is a notice of appeal or a complaint. Cf., Kusa v. United Parcel Serv.,

Inc. (1990), 61 Ohio Misc. 2d 556, citing syllabus.

We interpreted Kusa as holding that the "employer's re-filed notice of

appeal is timely when filed within the time constraints of the savings statute

even though the date of re-filing falls outside the sixty-day statutory

requirement set forth in R.C. 4123.512." Ciomek u. LTV Steel Co., Cuyahoga

App. Nos. 74646 and 74647, 2000 Ohio app. LEXIS 226.

V0 6 4 7 gQ 115

-6-

In applying the aforementioned law to the facts of the instant case,

Feckner and Donley's filing of a joint notice of voluntary dismissal are subject

to the one-year savings statute set forth in R.C. 2315.19. However, Feckner

never refiled his complaint and Donley never refiled its notice of appeal or any

other motions, thus, failing R.C. 2315.19.

On September 21, 2006, nearly five years after the joint dismissal of the

complaint and four years after the savings statute lapsed pursuant to R.C.

2315.19, Donley filed a motion for judgment on the pleadings. 'Phus, when

Feckner failed to refile his complaint within one year and Donley failed to refile

its notice of appeal or its motion for judgment on the pleadings within one year,

the trial court lacked jurisdiction to rule on Donley's motion for judgment on the

pleadings four years later.

Donley's first assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER TWO

"The trial court erred by ordering the parties to cease filingpleadings because of its erroneous position that the previousdismissal without prejudice in a Workers' Coinpensationappeal filed by an employer divested the trial court ofjurisdiction for post judgment motions."

In light of our ruling on Donley's first assignment of error, assignment of

error number two is moot.

VBLB 6 4 7 g 0 1 16

-7-

We thus hold that a plaintiff-employee and defendant-employer may

employ Civ.R. 41(A)(1)(b) to jointly and voluntarily dismiss their respective

notice of appeal and complaint to the common pleas court brought by an

employer under R.C. 4123.512. Joint voluntary dismissals are subject to R.C.

2315.19, and both the claimant's petition and the employer's notice of appeal are

voluntarily dismissed without prejudice as a result thereof.

Donley failed to timely refile its notice of appeal pursuant to R.C. 2305.19

following the parties' joint notice of voluntary dismissal and, therefore, the trial

court lacked jurisdiction to rule on Donley's motion for judgment on the

pleadings.

Donley's second assignment of error is moot.

Judgment affirmed.

It is ordered that appellee recover from appellant 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.

Y.O 647 V6Q1 17

-8-

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

MARY ERLEEN KILBANE, JUDGE

FRANK D. CELEBREZZE JR., A.J., andANN DYKE, J., CONCUR

NO 6 4 7 0 0 1 18

DONLEY'S, INC., ET AL.

Date 1 112 1 /2007

^^{^jyeaf.a .^f (011tia: f-i.^^lth, 3ailatCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

Appeilee COA NO. LOWER COURT NO.88926 CP CV-446226

COMMON PLEAS COURT

Appellant MOTION NO. 4019923^

Journal Entry

APPELLANT DONLEY'S INC. ("DONLEY") FILED A TIMELY APPLICATION FOR RECONSIDERATIONOF OUR OCTOBER 4, 2007 OPINION AFFIRMING THE TRIALCOURT.

THE STANDARD FOR REVIEWING SUCH AN APPLICATION IS "WHETHER THE APPLICATIONCALLS TO THE ATTENTION OF THE COURT AN OBVIOUS ERROR IN ITS DECISION OR RAISES ANISSUE FOR CONSIDERATION THAT WAS EITHER NOT CONSIDERED OR WAS NOT FULLYCONSIDERED BY US WHEN IT SHOULD HAVE BEEN." CUNNINGHAM V. ST. ALEXIS HOSP. MED.CTR. (2001), 143 OHIO APP.3D 353.

"A MOTION FOR RECONSIDERATION 'IS A MECHANISM BY WHICH A PARTY MAY PREVENTMISCARRIAGES OF JUSTICE THAT COULD ARISE WHEN AN APPELLATE COURT MAKES ANOBVIOUS ERROR OR RENDERS AN UNSUPPORTABLE DECISION UNDER THE LAW."' SCOTT V.FALCON TRANSP. CO., MAHONING APP. NO. 02CA 145, 2004-OHIO-389. RECONSIDERATIONMOTIONS ARE RARELY CONSIDERED WHEN THE MOVANT SIMPLY DISAGREES WITH THECONCLUSIONS REACHED AND THE LOGIC USED BY AN APPELLATE COURT.

IN ITS APPLICATION FOR RECONSIDERATION, DONLEY ARGUES AS FOLLOWS: CIV.R. 41(A), BYITS VERY TERMS, APPLIES ONLY TO PLAINTIFFS AND ONLY TO CLAIMS; THAT WE EXPANDEDTHE CIVIL RULES WITHOUT AUTHORITY; THAT OUR DECISION PREVENTS A FINAL JUDGMENTFROM BEING ENTERED.

WE FIND THAT DONLEY SIMPLY DISAGREES WITH THE LOGIC APPLIED BY THIS COURT ANDTHE ENSUING RESULTS. THEREFORE, WE DENY DONLEY'S APPLICATION FORRECONSIDERATION.Adm. Judge, FRANK D. CELEBREZZE,JR.,Concurs

Judqe ANN DYKE Concurs^T^^^^f7r--D-fZGR+([j, N

NOV 2 i 2007

oL^ ^^rH^OOLJFlF'i i, ppEl1,SBYN`-^^ ®FP,

ARY EIL EN K^

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