Johnson v. Cuyahoga Cty.

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[Cite as Johnson v. Cuyahoga Cty., 2017-Ohio-4304.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 105040 ROBERT JOHNSON PLAINTIFF-APPELLEE vs. CUYAHOGA COUNTY, OHIO, ET AL. DEFENDANTS-APPELLANTS JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861770 BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J. RELEASED AND JOURNALIZED: June 15, 2017 ATTORNEYS FOR APPELLANT Michael C. O’Malley Cuyahoga County Prosecutor BY: Dale F. Pelsozy Nora Graham Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Donald Butler Donald Butler & Associates, Suite 600 75 Public Square Cleveland, Ohio 44113 Mike DeWine Ohio Attorney General BY: Steven K. Aronoff Assistant State Attorney General 615 West Superior Avenue, 11th Floor Cleveland, Ohio 44113 LARRY A. JONES, SR., J.: {¶1} Defendant-appellant, Cuyahoga County, appeals the trial court’s dismissal of plaintiff-appellee’s, Robert Johnson, complaint pursuant to Civ.R. 41(A). We affirm. {¶2} Robert Johnson claimed he was injured on September 8, 2015, during the course and scope of his employment with Cuyahoga County. He filed a claim with appellee, Ohio Bureau of Workers’ Compensation (“BWC”), and his claim was allowed for “partial thickness tear of the Achilles tendon right ankle.” {¶3} In April 2016, the county appealed to the court of common pleas. After the county filed its appeal to the common pleas court, Johnson, as mandated, filed his complaint for benefits in compliance with the procedure that places the burden on him to start anew in the common pleas court and prove his claim. {¶4} In September 2016, Johnson filed a notice of voluntary dismissal of his complaint under Civ.R. 41(A) and the trial court dismissed the case. Johnson did not obtain his employer’s consent before dismissing his complaint. {¶5} Cuyahoga County now appeals, raising one assignment of error for our review: The trial court erred in allowing a dismissal under Civil Rule 41(A) of the Ohio Rules of Civil Procedure when the appeal in the trial court was instigated. {¶6} In 2006, the Ohio General Assembly enacted Am.Sub.S.B. No. 7 (S.B. 7). In relevant part, S.B. 7 amended R.C. 4123.512(D) and “ended an employee-claimant’s unilateral ability to voluntarily dismiss the complaint in an appeal brought by an employer.” Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124, 2009-Ohio-360, 902 N.E.2d 482, ¶ 5. Pursuant to the amendment, an employer must now consent to the voluntary dismissal of the appeal without prejudice. Id. at ¶ 14. Cuyahoga County and the BWC both argue that, pursuant to the plain language of R.C. 4123.512(D), the trial court should have denied Johnson’s notice to dismiss his complaint. {¶7} This court has held, however, that the requirement in amended R.C. 4123.512(D) that a plaintiff obtain an employer’s consent prior to filing a motion to dismiss an appeal, violates the Ohio Constitution, Article IV, Section 5(B) because it is in contravention of Civ.R. 41(A)(1)(a). Ferguson v. State, 2015-Ohio-4499, 42 N.E.3d 804, ¶ 18 (8th Dist.), appeal accepted, 145 Ohio St.3d 1421, 2016-Ohio-1173, 47 N.E.3d 165. In Ferguson, this court found the amended statute unconstitutional because it violates the basic principles of separation of powers, equal protection, and due process. Id. at ¶ 37. {¶8} We note that Ferguson has been accepted by the Ohio Supreme Court as a discretionary appeal. Until such time as Ferguson is decided by the Ohio Supreme Court, the holding in Ferguson remains binding precedent in this district. Thus, the requirement that an injured worker obtain his or her employer’s consent before dismissing his or her complaint under Civ.R. 41 is not the law in this district. As such, the trial court did not err in accepting Johnson’s notice of voluntary dismissal under Civ.R. 41 or in dismissing the case without prejudice. {¶9} The sole assignment of error is overruled. {¶10} Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LARRY A. JONES, SR., JUDGE EILEEN A. GALLAGHER, P.J., CONCURS; MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION MELODY J. STEWART, J., DISSENTING: {¶11} There is nothing rational about a workers’ compensation administrative appeals process that allows an employee to unilaterally dismiss his or her complaint, required in an employer’s workers’ compensation appeal, all the while collecting workers’ compensation benefits, and then be able to take advantage of the one-year savings clause to refile the case. The legislature remedied this anomalous situation in R.C. 4123.512(D) by requiring an employee to obtain an employer’s consent before voluntarily dismissing a complaint in an employer’s administrative appeal. Nonetheless, in Ferguson v. State, 2015-Ohio-4499, 42 N.E.3d 804 (8th Dist.), a panel of this court found that R.C. 4123.512(D) violates due process, equal protection, and the separation of powers. I respectfully disagree with Ferguson. Review of that decision is currently pending with the Ohio Supreme Court, so a full statement of the reasons for my disagreement with Ferguson is unnecessary. {¶12} The Ohio Constitution not only establishes the workers’ compensation system, see Article II, Section 35 of the Ohio Constitution, it gives “wide latitude to the General Assembly to enact laws” to serve the purposes of the workers’ compensation system. Indus. Comm. of Ohio v. Warnke, 131 Ohio St. 140, 150, 2 N.E.2d 248 (1936). The General Assembly employed this wide latitude to create an undeniably unique appellate process where it is the obligation of the employee to file a complaint after an employer files a notice of appeal with the common pleas court from an adverse administrative ruling and can voluntarily dismiss the complaint and thus delay the appeal. That the legislature likewise used its wide latitude to create a consent provision to prevent an employee from unilaterally dismissing an employer’s appeal is not only rational, that provision resulted from judicial recognition of how irrational the prior system had been. Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 2006-Ohio-1712, 844 N.E.2d 1193, ¶ 29 (O’Donnell, J., concurring in judgment only). {¶13} I likewise find Ferguson’s separation-of-powers analysis — that the consent provision impedes upon the right of voluntary dismissal under Civ.R. 41(A) — to be misplaced. To the extent that the Ohio Supreme Court has the power to promulgate procedural rules, see Article IV, Section 5(B) of the Ohio Constitution, the Ohio Supreme Court exercised that rule-making authority to state that the Rules of Civil Procedure do not apply to “special statutory proceedings.” See Civ.R. 1(C)(8). The workers’ compensation appeals process is a special proceeding, Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶ 15, so the consent provision makes Civ.R. 41(A) “clearly inapplicable.” For these reasons, I dissent.

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