Arthur v. Sequent, Inc.

[Cite as Arthur v. Sequent, Inc., 2019-Ohio-3075.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
SCOTT E. ARTHUR : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 19 CAE 02 0017
SEQUENT, INC. :
:
Defendant-Appellee : OPINION
:
AND
SARAH MORRISON,
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Case No. 19-
CVD-010046
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 29, 2019
APPEARANCES:
For Plaintiff-Appellee Scott Arthur For Defendant-Appellant
ROBERT ROBINSON NATALIE TACKETT
226 North Fifth Street, Ste. 501 Assistant Attorney General
Columbus, Ohio 43215 150 East Gay Street
Columbus, Ohio 43215
[Cite as Arthur v. Sequent, Inc., 2019-Ohio-3075.]
Gwin, P.J.
{¶1} Scott Arthur and the Bureau of Workers’ Compensation both appeal the
January 29, 2019 judgment entry of the Delaware County Court of Common Pleas
dismissing Arthur’s case for lack of jurisdiction.
Facts & Procedural History
{¶2} Scott Arthur (“Arthur”) was injured in 2009 while working for Sequent
Incorporated. Following his injury, Arthur filed an application for compensation and
benefits pursuant to the Workers’ Compensation Act. Arthur’s claim was allowed for
several conditions, including lumbar disc herniation and degenerative disc disease at the
L5-S1 level. In 2016, Arthur filed a motion for additional allowance of the claim for the
condition of substantial aggravation of pre-existing facet arthropathy L5-S1. After a
district hearing officer and staff hearing officer denied Arthur’s motion for additional
allowance, the Industrial Commission refused Arthur’s appeal on March 16, 2017.
{¶3} Arthur filed a notice of appeal with the Delaware Court of Common Pleas
on April 7, 2017, appealing the March 16, 2017 order of the Industrial Commission. Also
on April 7, 2017, Arthur filed a complaint requesting he be allowed to participate in the
Workers’ Compensation Fund. The Bureau of Workers’ Compensation (“BWC”) filed an
answer to Arthur’s complaint on May 9, 2017. On January 9, 2018, Arthur filed a notice
of dismissal without prejudice, stating he voluntarily dismissed the action, without
prejudice, pursuant to Civil Rule 41(A).
{¶4} Arthur refiled his complaint on December 19, 2018 in the Franklin County
Court of Common Pleas. On December 27, 2018, Arthur filed a motion for change of
venue, stating he erroneously refiled his complaint in Franklin County due to a clerical
Delaware County, Case No. 19 CAE 02 0017 3
error and requesting the Franklin County Court of Common Pleas transfer the case to the
Delaware County Court of Common Pleas, where venue was appropriate. On January
3, 2019, the Franklin County Court of Common Pleas granted Arthur’s motion for change
of venue and ordered the action be transferred to the Delaware County Court of Common
Pleas. The Franklin County Clerk of Courts sent certified copies of the docket and
pleadings in the case to the Delaware County Clerk of Courts on January 14, 2019. On
January 25, 2019, the Clerk of the Delaware County Common Pleas Court sent notice to
the parties that the case had been transferred from the Franklin County Court of Common
Pleas to the Delaware County Court of Common Pleas.
{¶5} The trial court issued a judgment entry on January 29, 2019 dismissing the
case for lack of jurisdiction. The trial court stated that, in the absence of a timely-filed
notice of appeal, it lacked jurisdiction to consider an appeal from an order of the Industrial
Commission. The trial court noted Arthur’s original notice of appeal was timely filed less
than thirty days after the March 2017 Industrial Commission order. The trial court further
found when Arthur dismissed his action pursuant to Civil Rule 41(A), Arthur also
dismissed his appeal and it was incumbent upon Arthur to refile his notice of appeal with
the refiled complaint. The trial court determined since Arthur refiled only his complaint
within the one-year limitation period contained in the savings statute of R.C. 2305.19 and
because the timely filing of a notice of appeal is essential to invoking the jurisdiction of
the trial court, it lacked jurisdiction to proceed in the matter. On February 21, 2019, the
trial court granted the BWC’s motion for leave to file answer instanter.
{¶6} The BWC appeals the January 29, 2019 judgment entry of the Delaware
County Court of Common Pleas and assigns the following as error:
Delaware County, Case No. 19 CAE 02 0017 4
{¶7} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
IMPROPERLY IMPOSING A REQUIREMENT THAT THE PLAINTIFF FILE A ‘SECOND’
R.C. 4123.512 NOTICE OF APPEAL FOLLOWING THE DISMISSAL OF HIS
COMPLAINT UNDER CIV.R.41(A)(1) THAT IS NOT MANDATED BY ANY STATUTE,
RULE, OR OTHER CODE PROVISION.
{¶8} “II. THE TRIAL COURT ERRED BY TREATING THE R.C. 4123.512
NOTICE OF APPEAL THE SAME AS A COMPLAINT FOR PURPOSES OF APPLYING
THE SAVINGS STATUTE TO IMPROPERLY REQUIRE THAT BOTH THE NOTICE OF
APPEAL AND COMPLAINT MUST BE RE-FILED WITHIN ONE YEAR OF THE
DISMISSAL OF THE COMPLAINT UNDER CIV.R. 41(A)(1).”
I. & II.
{¶9} In their assignments of error, the BWC argues the trial court erred in
dismissing Arthur’s complaint for lack of jurisdiction. The BWC contends if this Court lets
the decision of the trial court stand, it would negatively impact thousands of notices of
voluntary dismissals and refiled complaints in Ohio. Arthur, the appellee in this case,
adopts the brief of the BWC and agrees the trial court erred in finding it lacked subject-
matter jurisdiction over the case.
{¶10} Determining whether a trial court has subject matter jurisdiction is reviewed
de novo. Wells Fargo Bank, N.A. v. Elliot, 5th Dist. Delaware No. 13 CAE 03 0012, 2013-
Ohio-3690.
{¶11} The appeal in a workers’ compensation case begins with the filing of a
notice of appeal. R.C. 4123.512(A). R.C. 4123.512 provides that the notice of appeal
should state the following: the names of the administrator of workers’ compensation, the
Delaware County, Case No. 19 CAE 02 0017 5
claimant, and the employer; the number of the claim; the date of the order appealed from;
and the fact that the appellant appeals therefrom. Within thirty days thereafter, the
claimant must “file a petition containing a statement of facts in ordinary and concise
language showing a cause of action to participate or to continue to participate in the fund
and setting forth the basis for the jurisdiction of the court over the action.” R.C.
4123.512(D). The petition is for all intents and purposes a complaint. Robinson v. B.O.C.
Group, Gen. Motors Corp., 81 Ohio St.3d 361, 691 N.E.2d 419 (10th Dist. 1991).
{¶12} The Ohio Supreme Court has held that a workers’ compensation claimant
may employ Civil Rule 41(A) to voluntarily dismiss an appeal to the court of common
pleas. Kaiser v. Ameritemps, 84 Ohio St.3d 411, 704 N.E.2d 1212 (1999). In the context
of an employee voluntarily dismissing an appeal of the employer, the Supreme Court held
that, if an employee does not refile his complaint within a year pursuant to the savings
statute, the employee cannot prove his entitlement to participate in the workers’
compensation system. Id. The Supreme Court stated, “the voluntary dismissal of the
claimant’s complaint does not affect the employer’s notice of appeal, which remains
pending until the refiling of claimant’s complaint.” Id. Similarly, in this case, the voluntary
dismissal of Arthur’s complaint did not affect the timely notice of appeal, which remains
pending until the refiling of the complaint.
{¶13} In Lewis v. Connor, the Ohio Supreme Court held, “where a notice of appeal
is filed within the time prescribed by R.C. 4123.519 and the action is dismissed without
prejudice after expiration of that time, R.C. 2305.19, the savings statute, is applicable to
workers’ compensation complaints filed in the common pleas court.” 21 Ohio St.3d 1,
487 N.E.2d 285 (1985). The Ohio Supreme Court found that the “timely filing of
Delaware County, Case No. 19 CAE 02 0017 6
appellant’s notice of appeal was the only act necessary to vest jurisdiction in the common
pleas court” and nothing in R.C. 4123.519 prohibits the refiling of a complaint where the
original notice of appeal was timely filed. There is no language in Lewis that requires the
refiling of the notice of appeal after a voluntary dismissal by the employee in order to
utilize the savings statute. The Ohio Supreme Court held the savings statute also applies
to employee dismissals of employer-initiated appeals and held that, in an employer-
initiated appeal, if the employee voluntarily dismisses his or her petition and fails to refile
the complaint within one year as allowed by the savings statute, the employer is entitled
to judgment on its appeal. Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 2006-Ohio-
1712, 844 N.E.2d 1193. Again, the Supreme Court did not include any language requiring
the refiling of a notice of appeal after a voluntary dismissal in order to utilize the savings
statute. The Ohio Supreme Court again considered the use of a voluntary dismissal in
an employer’s appeal and determined a claimant must obtain the consent of an employer
to voluntarily dismiss a complaint in an employer’s appeal. Ferguson v. State, 151 Ohio
St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250. The Court discussed no requirement of a
refiling of the notice of appeal.
{¶14} We find the cases cited by the trial court to be distinguishable from the
instant case. In Day v. Noah’s Ark Learning Center, 5th Dist. Delaware No. 01-CVE-12-
068, 2002-Ohio-4245, the appellant filed only a petition and not a notice of appeal and
thus we held the common pleas court was never vested with jurisdiction over the case.
In this case, Arthur filed a timely notice of appeal with his petition in 2017. In Beaumont
v. Kvaerner North American Construction, 11th Dist. Trumbull No. 2013-T-0047, 2013-
Ohio-5847, the Eleventh District dealt with jurisdiction over new issues presented in an
Delaware County, Case No. 19 CAE 02 0017 7
employer’s counterclaim when an employer did not file a notice of appeal. In this case,
the employer did not file a counterclaim and Arthur did file a timely notice of appeal in
2017.
{¶15} The trial court relied heavily on Jackson v. American Bulk Commodities,
Inc., 4th Dist. Washington No. 17CA33, 2018-Ohio-3706. We first note that Jackson, a
decision by the Fourth District Court of Appeals, is not binding on this Court. Moore v.
Michalski, 5th Dist. Fairfield No. 17-CA-44, 2018 WL 3904257. Second, we find Jackson
distinguishable from the instant case, as the dismissal in Jackson specifically states the
“dismissal terminates the case,” and the Fourth District’s finding that the appellant could
refile both its notice of appeal and untimely complaint led to a “result in line with R.C.
4123.95’s statutory mandate which requires courts to liberally construe the workers’
compensation laws in favor of employees.” In this case, the voluntary dismissal does not
specifically state the “dismissal terminates the case.” Further, the dismissal of Arthur’s
complaint is not in line with the requirement of R.C. 4123.95 to construe the workers’
compensation statutes liberally in favor of employees. R.C. 4123.95; see also Stoneman
v. Zimmer Orthopaedic Surgical Prods, Inc., 5th Dist. Tuscarawas No. 2007 AP 08 0045,
2008-Ohio-5336.
{¶16} Courts have consistently held the only act that confers jurisdiction on the
common pleas court pursuant to R.C. 4123.512 is the filing of the notice of appeal, not
the complaint, and the trial court does not lose jurisdiction over a case when a claimant
voluntarily dismisses a case. Donini v. Manor Care, Inc., 4th Dist. Scioto No. 13CA3583,
2014-Ohio-1767 (stating the “only act that confers jurisdiction on the common pleas court
is the filing of the notice of appeal”); Rice v. Stouffer Foods Corp., 8th Dist. Cuyahoga No.
Delaware County, Case No. 19 CAE 02 0017 8
72515, 1997 WL 691156 (Nov. 6, 1997) (holding a voluntary dismissal does not oust the
common pleas court of jurisdiction, as the employer’s appeal is still pending, subject to
the refiling of the complaint under the savings statute and the trial court did not lose
jurisdiction at the time of the voluntary dismissal); Case v. Ohio Bureau of Workers’
Compensation, 4th Dist. Washington No. 96 CA 1, 1996 WL 451359 (Aug. 1, 1996)
(holding the filing of a new complaint, not the filing of a new notice of appeal, invokes the
benefit of the savings statute); Gambrel v. C.J. Mahan Constr. Co., 10th Dist. Franklin
No. 07AP-1023, 2008-Ohio-3288 (holding the voluntary dismissal of a petition does not
divest the common pleas court of jurisdiction over the case, which is vested by the timely
filing of a notice of appeal); Harsco Corp. v. Bishop, 12th Dist. Madison No. CA2000-12-
052, 2001 WL 115548 (Oct. 1, 2001) (stating a Civil Rule 41(A) dismissal by the claimant
does not affect the employer’s notice of appeal, which remains pending until the refiling
of the complaint); Smith v. Continental Airlines, Inc., 8th Dist. Cuyahoga No. 81010, 2002-
Ohio-4181 (holding the mere voluntary dismissal of the complaint does not deprive the
common pleas court of jurisdiction, as only the complaint is dismissed and the notice of
appeal is the only act required to vest jurisdiction in the court); McKinney v. Ohio State
Bureau of Workers’ Comp., 10th Dist. Franklin No. 04AP-1086, 2005-Ohio-2330 (holding
the voluntary dismissal of the claimant’s complaint does not affect the notice of appeal,
which remains pending until the refiling of the complaint); Yates v. G&J Pepsi-Cola
Bottlers, 4th Dist. Scioto No. 15CA3711, 2016-Ohio-1436 (stating that by the plain
language of the voluntary dismissal and consistent with the governing statutes, rules, and
precedent, the common pleas court retained jurisdiction over the notice of appeal after
claimant voluntarily dismissed his complaint).
Delaware County, Case No. 19 CAE 02 0017 9
{¶17} Based on the foregoing, the BWC’s assignments of error are sustained.
Arthur perfected subject matter jurisdiction in the common pleas court by filing his timely
notice of appeal in 2017. Both Arthur and the BWC agree that nothing in the statutes,
case law, or civil rules of procedure require the refiling of a notice of appeal as well as the
complaint. We find the trial court committed error in dismissing Arthur’s complaint for lack
of subject matter jurisdiction.
{¶18} The January 29, 2019 judgment entry of the Delaware County Court of
Common Pleas is reversed and remanded for proceedings consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur