[Cite as Yates v. G&J Pepsi-Cola Bottlers, Inc., 2016-Ohio-1436.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
Stephen Yates, : Case No. 15CA3711
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
G&J Pepsi-Cola Bottlers, et al., :
RELEASED: 3/31/2016
Defendants-Appellees. :
APPEARANCES:
Joseph A. Fraley, Mitchell + Pencheff, Fraley, Catalano & Boda Co., Columbus, Ohio,
for appellant.
Charles M. Stephan, Taft Stettinius & Hollister LLP, Cincinnati, Ohio, for appellee G&J
Pepsi-Cola Bottlers, Inc.
Crystal R. Richie, Ohio Attorney General’s Office, Columbus, Ohio, for appellee Bureau
of Workers’ Compensation.
Harsha, J.
{¶1} After a series of decisions at the administrative level of Stephen Yates’s
claims for “flow through” workers compensation injuries, both Yates and his employer
appealed to the court of common pleas. The court consolidated the two appeals and
prior to trial, Yates filed a notice of voluntary dismissal without prejudice of his part of
the consolidated appeal. After Yates refiled his complaint the employer filed a motion for
summary judgment, arguing that the dismissal of Yates’s complaint also acted as a
dismissal of his notice of appeal. The trial court agreed and granted summary judgment
to the employer, dismissing Yates’s appeal on the basis that the court lost jurisdiction
upon entry of the voluntary dismissal.
Scioto App. No. 15CA3711 2
{¶2} Now Yates claims he was entitled to refile his complaint, as the court
retained jurisdiction over his appeal. We agree. A workers’ compensation appeal
requires both a notice of appeal, which confers jurisdiction on the common pleas court,
and a “petition” or complaint, which states a cause of action. Yates’s dismissal entry,
which expressly dismissed his cause of action and specified that he could refile the
cause of action within one year, dismissed only his complaint, not his appeal. Therefore
the common pleas court was not divested of jurisdiction over his appeal. We sustain
Yates’s assignment of error.
I. FACTS
{¶3} After Yates sustained a work-related injury to his left shoulder while
employed by G&J Pepsi-Cola Bottlers, Inc., he filed a claim for workers’ compensation,
which the Industrial Commission allowed. Several years later, Yates filed a motion to
include a disc-herniation neck injury with his claim. The Commission granted his motion
and G&J appealed to the Scioto County Court of Common Pleas. In accordance with
R.C. 4123.512(D), Yates filed a complaint in G&J’s appeal.
{¶4} While G&J’s appeal was pending, Yates filed a second motion with the
Commission to include a right shoulder injury to his claim. When the Commission
denied it, Yates filed his notice of appeal and complaint in accordance with R.C.
4123.512. The trial court consolidated the two complaints for trial. Prior to trial Yates
filed a Notice of Partial Dismissal Without Prejudice, which provided:
Now comes the Plaintiff and hereby gives notice that portion of this cause
of action dealing with Plaintiffs’ appeal of the request condition of Right
Shoulder Impingement Syndrome is dismissed without prejudice pursuant
to the terms of Ohio Rule of Civil Procedure 41(A). Plaintiff’s Complaint
still is active for Defendant’s appeal of the allowed condition of C6-7 Disk
Scioto App. No. 15CA3711 3
Herniation. Such dismissal is without prejudice of future actions, shall be
for failure otherwise than upon the merits and shall specifically allow the
plaintiff to retain the right to re-file its cause of action within one year as
prescribed by law.
{¶5} Before the expiration of the one year limit,1 Yates refiled the complaint
corresponding to his appeal of the right shoulder claim denial. G&J filed a motion for
summary judgment arguing that “[t]he partial dismissal eliminated Plaintiff’s appeal on
the issue of right shoulder impingement, leaving only his allegation of a cervical disc
injury for trial.” G&J emphasized that the wording of the voluntary dismissal entry states
that Yates, “gives notice that [the] portion of this cause of action dealing with Plaintiff’s
appeal of the request [sic] condition of Right Shoulder Impingement Syndrome is
dismissed without prejudice pursuant to the terms of Ohio Rule of Civil Procedure
41(A)” and argued that this language dismissed Yates’s appeal. Yates argued that
G&J’s interpretation of the dismissal language was erroneous and that he dismissed
only his complaint relating to the right shoulder impingement appeal and not the appeal
itself. The trial court granted G&J’s motion, finding “that the dismissal of the workers’
compensation appeal deprives the Court of jurisdiction over this action.” Yates
appealed to us.
II. ASSIGNMENT OF ERROR
{¶6} Yates raises one assignment of error:
1. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
DEFENDANT-APPELLEE G&J PEPSI-COLA BOTTLERS, INC.
III. STANDARD OF REVIEW
1 The record indicates that the complaint was refiled on May 8, 2015. Yates’s and G&J’s briefs respectively
state that the complaint was re-filed on May 15, 2015 and May 6, 2015. Because all of the alleged dates
fall within one year of the voluntary dismissal date of May 30, 2014, the discrepancy is immaterial.
Scioto App. No. 15CA3711 4
{¶7} The existence of a court's jurisdiction presents a question of law that we
review de novo. In the Matter of D.P.J. and P.R.J., 4th Dist. Scioto No. 13CA3532,
2013-Ohio-4469, ¶ 11. Likewise, appellate review of summary judgment decisions is de
novo, governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d
199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the
party moving for summary judgment establishes that (1) there is no genuine issue of
material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion, which is adverse to the party against
whom the motion is made. Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129
Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v.
Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26.
{¶8} The moving party has the initial burden of informing the trial court of the
basis for the motion by pointing to summary judgment evidence and identifying the parts
of the record that demonstrate the absence of a genuine issue of material fact on the
pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996);
Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-
moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue remaining for trial. Dresher at 293.
IV. LAW AND ANALYSIS
A. Jurisdiction in a Workers’ Compensation Appeal
{¶9} “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.”
Kaiser v. Ameritemps, Inc., 84 Ohio St.3d 411, 413, 704 N.E.2d 1212 (1999).
Scioto App. No. 15CA3711 5
Regardless of whether the claimant or employer appeals the commission order, “[t]he
claimant shall, within thirty days after the filing of the notice of appeal, 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 common pleas
court's review in the appeal is de novo, and the claimant bears the burden of proving a
right to participate in the workers' compensation fund regardless of the commission’s
decision. Bennett v. Admr., Bur. of Workers' Comp., 134 Ohio St.3d 329, 2012–Ohio–
5639, 982 N.E.2d 666, ¶ 17. In other words, where the employer appeals an
unfavorable administrative decision, the claimant must re-establish the claim in the court
of common pleas in spite of prevailing at the administrative level. Kaiser at 413.
{¶10} In both a claimant-initiated and an employer-initiated workers’
compensation appeal, the dismissal of the complaint does not affect the appeal, which
remains pending until the refiling of the complaint or time lapses under the savings
statute. Lewis v. Connor, 21 Ohio St.3d 1, 487 N.E.2d 285 (1985) (trial court’s dismissal
without prejudice of claimant’s complaint did not divest the trial court of jurisdiction over
the appeal and claimant could refile complaint within one year under the saving statute,
R.C. 2305.19); Kaiser at 415; see also Thorton v.Montville Plastics & Rubber, Inc., 121
Ohio St.3d 124, 2009-Ohio-360, 902 N.E.2d 482; Fowee v. Wesley Hall, Inc., 108 Ohio
St.3d 533, 2006-Ohio-1712, 844 N.E.2d 1193. That is, in a workers' compensation
appeal under R.C. 4123.512, “the filing of the complaint does not commence the action
and confer jurisdiction.” McKinney v. Ohio Bur. of Workers' Comp., 10th Dist. Franklin
No. 04AP–1086, 2005–Ohio–2330, ¶ 4. Instead, under the plain language of the
Scioto App. No. 15CA3711 6
governing statute, the only act required to perfect the appeal is the timely filing of the
notice of appeal. Spencer v. Freight Handlers, Inc., 131 Ohio St.3d 316, 2012–Ohio–
880, 964 N.E.2d 1030, ¶ 8; R.C. 4123.512(A) (“The appellant shall file the notice of
appeal with a court of common pleas within sixty days after the date of the receipt of the
order appealed from or the date of receipt of the order of the commission refusing to
hear an appeal of a staff hearing officer's decision under division (D) of section
4123.511 of the Revised Code. The filing of the notice of appeal with the court is the
only act required to perfect the appeal”). Therefore, the only act that confers jurisdiction
on the common pleas court is the filing of the notice of appeal. See Gambrel v. C.J.
Mahan Constr. Co., 10th Dist. Franklin No. 07AP–1023, 2008–Ohio–3288, ¶ 8, citing
Fisher v. Mayfield, 30 Ohio St.3d 8, 505 N.E.2d 975 (1987), paragraph one of the
syllabus (“The filing of a notice of appeal is the only act required to vest jurisdiction in
the common pleas court”); Donini v. Manor Care, Inc., 4th Dist. Scioto App. No.
13CA3583, 2014-Ohio-1767.
{¶11} In his sole assignment of error Yates contends that the trial court retained
jurisdiction over his appeal because his voluntary dismissal did not extinguish his
appeal, it dismissed only the complaint related to his appeal. Yates’s assertion has merit
for several reasons. First, a review of the plain language of the voluntary dismissal
specifies that it was filed pursuant to Civ.R. 41(A)(1). R.C. 4123.512(D) provides that
within 30 days after the appeal is filed, the claimant must file a petition in the common
pleas court setting forth “a cause of action” to participate or to continue to participate in
the workers' compensation fund. After the claimant files the petition, “[f]urther pleadings
shall be had in accordance with the Rules of Civil Procedure, * * * and provided that the
Scioto App. No. 15CA3711 7
claimant may not dismiss the complaint without the employer's consent if the employer
is the party that filed the notice of appeal to court pursuant to this section.” R.C.
4123.512(D). Under Civ.R. 41(A)(1)(a), “a plaintiff, without order of court, may dismiss
all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal
at any time before the commencement of trial unless a counterclaim which cannot
remain pending for independent adjudication by the court has been served by that
defendant.” Therefore, the voluntary dismissal affected only the claims asserted by
Yates in his complaint; under the rule, the dismissal does not purport to dismiss either
his or G&J’s appeals or the cause of action Yates filed pursuant to G&J’s appeal. In
fact, the dismissal expressly clarifies that Yates is dismissing only the cause of action
associated with his appeal and not the cause of action associated with the employer’s
appeal.
{¶12} The language of the dismissal itself supports a construction limiting the
dismissal to Yates’s complaint because it states that “[s]uch dismissal is without
prejudice of future actions, shall be for failure otherwise than upon the merits and shall
specifically allow the plaintiff to retain the right to re-file its cause of action within one
year as prescribed by law.” This language relates to Yates’s duty under the statute
requiring him to file “a petition * * * showing a cause of action to participate ... (.)” See
R.C. 4123.512(D). There is no language in the dismissal that Yates intended to refile his
notice of appeal within one year.
{¶13} Next, R.C. 4123.512 requires a claimant to file a petition stating a cause of
action (which is commonly referred to as “complaint”) in both a claimant-initiated appeal
and an employer-initiated appeal. Here, both types of appeals were pending and Yates
Scioto App. No. 15CA3711 8
had filed two separate causes of actions – his complaint associated with his right-
shoulder appeal and his complaint associated with G&J’s herniated-disk appeal. And to
add further to potential confusion, both causes of action were consolidated for purposes
of trial. Thus, his dismissal entry included the clarifying language that, “that portion of
this cause of action dealing with Plaintiffs’ appeal of the request condition of Right
Shoulder Impingement Syndrome is dismissed without prejudice pursuant to the terms
of Ohio Rule of Civil Procedure 41(A). Plaintiff’s Complaint still is active for Defendant’s
appeal of the allowed condition of C6-7 Disk Herniation.” Contrary to G&J’s contention,
this clarification about which portion of the two causes of action was dismissed did not
also serve to additionally dismiss Yates’s appeal.
{¶14} Third, the cases cited by G&J—Feckner v. Donley's, Inc., 8th Dist.
Cuyahoga No. 88926, 2007–Ohio–5335, Sipes v. Sipes, 5th Dist. Richland No. 2011–
CA–00101, 2012–Ohio–3215, and Kusa v. United Parcel Service, Inc., 61 Ohio Misc.2d
556, 580 N.E.2d 851 (C.P. 1990) are inapposite. Sipes is inapplicable because it does
not involve an employer-initiated workers' compensation appeal pursuant to R.C.
4123.512.
{¶15} Feckner did not include a statement in the notice of stipulated dismissal
similar to the one here denoting that the claimant could refile the action within one year.
And Feckner involved only an employer-initiated appeal. Because the voluntary
dismissal was a joint dismissal signed by both the claimant and the employer and
dismissed “the foregoing matter,” the court concluded that the dismissal included both
the claimant’s complaint and the employer’s appeal. Finally, both Feckner and Kusa
hold that the savings statute in R.C. 2305.19 applies to both a complaint and a notice of
Scioto App. No. 15CA3711 9
appeal. Thus, under the holdings of both those cases, in the Eighth Appellate District, a
party who dismisses the complaint and appeal is entitled to re-file the appeal within one
year. Feckner at ¶ 15 (“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.”). Thus, if we were to apply the holdings in Feckner and Kusa
the trial court would retain jurisdiction over Yates’s appeal even if, as G&J contends, his
dismissal entry dismissed his appeal as well as his complaint.
III. CONCLUSION
{¶16} By the plain language of the voluntary dismissal and consistent with the
governing statutes, rule, and precedent, the common pleas court retained jurisdiction
over Yates’s appeal after he dismissed his complaint pursuant to Civ.R. 41(A)(1)(a).
Because Yates dismissed only his complaint and not his appeal and he refiled his
complaint within the one-year time limit of R.C. 2305.19, the trial court retained
jurisdiction over his appeal and erred in granting G&J’s motion for summary judgment.
JUDGMENT REVERSED AND
CAUSE REMANDED FOR
FURTHER PROCEEDINGS.
Scioto App. No. 15CA3711 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT be REVERSED and the CAUSE REMANDED
to the trial court for further proceedings consistent with this opinion and that the
Appellant recover of Appellees costs herein be taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.