Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State Ex Rel. Die Co., Inc. v. Eugene A. Lucci

October 7, 2011



The opinion of the court was delivered by: Mary Jane Trapp, J.

Cite as State ex rel. Die Co., Inc. v. Lake Cty. Court of Common Pleas,


Original Action for Writ of Mandamus. Judgment: Petition dismissed.

{¶1} This action in mandamus is presently before this court for consideration of the three separate motions to dismiss of respondents, Judge Eugene Lucci of the Lake County Court of Common Pleas, the Industrial Commission of Ohio, and Jerry Ackley, III. As the primary contention under two of these motions, Judge Lucci and Mr. Ackley maintain that the petition of relator, Die Co., Inc., fails to state a viable claim for the writ because its factual allegations support the conclusion that there is another adequate remedy it could pursue to resolve the underlying dispute. For the following reasons, we hold that this contention has merit and that the dismissal of the sole claim as to all three respondents is warranted.

{¶2} Procedural History

{¶3} A review of relator's petition indicates that its mandamus claim for relief is predicated upon the following basic allegations. In August 2005, Mr. Ackley submitted a claim for workers' compensation benefits, asserting that he had sustained a new injury to his back as a result of an accident that occurred during his employment with relator. Ultimately, a staff hearing officer for the Industrial Commission granted the claim in part, and Mr. Ackley was awarded temporary total compensation. The Industrial Commission rejected relator's appeal of the staff hearing officer's decision in February 2007.

{¶4} Approximately ten days after the release of the Commission's final order, relator instituted an appeal before the Lake County Court of Common Pleas. Pursuant to the procedure delineated in R.C. 4123.512, Mr. Ackley filed a complaint for benefits in May 2007. However, seven months later, he voluntarily dismissed that particular action without prejudice under Civ.R. 41(A)(1).

{¶5} In December 2008, Mr. Ackley re-filed his "benefits" complaint under Lake C.P. No. 08-CV-03807. This second action was assigned to Judge Lucci, who later set the matter for a jury trial on October 5, 2009. Three days before that date, though, Mr. Ackley informed Judge Lucci that he intended to move for the dismissal of the second action under Civ.R. 41(A)(2). As the basis for this request, Mr. Ackley asserted that he would not be available to attend the trial because he was incarcerated at that time.

{¶6} Although the manner of communication is not clear, relator was informed that Judge Lucci intended to grant Mr. Ackley's motion once it was properly filed. As a result, on October 5. 2009, relator submitted a motion to reconsider the dismissal of the action. One day later, Mr. Ackley filed his motion under Civ.R. 41(A)(2), and Judge Lucci immediately released a judgment entry granting the motion and dismissing the second case in its entirety. As part of the entry, Judge Lucci specifically stated that the dismissal was without prejudice.

{¶7} Relator immediately appealed the dismissal entry to this court. In Ackley v. Ryan, 11th Dist. No. 2009-L-143, 2010-Ohio-477, we dismissed that particular appeal for the reason that the subject entry was not a final appealable order. Our opinion noted that, since a dismissal without prejudice was not an adjudication upon the merits of the underlying case, it left both sides in the same relative position they had been prior to the filing of the case. Id. at ¶4. This court also emphasized that, even though Mr. Ackley had the ability to re-file his complaint for benefits, the delay in the final resolution of the case was not prejudicial to relator because the new proceeding had to be initiated within one year under R.C. 2305.19. Id. at ¶8, quoting Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124, 126-127, 2009-Ohio-360.

{¶8} Although relator attempted to appeal our decision, the Supreme Court of Ohio denied jurisdiction. Ackley v. Ryan, 125 Ohio St.3d 1463, 2010-Ohio-2753. Approximately three months following the conclusion of the Supreme Court proceeding, relator instituted the instant mandamus action against Judge Lucci, Mr. Ackley, and the Industrial Commission. As the grounds for its sole claim, relator alleged that Judge Lucci violated Ohio statutory and case law when he granted Mr. Ackley's motion to dismiss the second case without conducting a full hearing on the matter. As to the "statutory law" aspect of its allegations, relator also asserted that, under R.C. 4123.512(D), the dismissal of the case was improper because Mr. Ackley did not obtain its consent to the Civ.R. 41(A)(2) dismissal prior to the issuance of Judge Lucci's judgment entry. Based upon this, relator essentially seeks a writ which would mandate that the filing of the Civ.R. 41(A)(2) motion to dismiss had the legal effect of completely terminating Mr. Ackley's underlying claim for benefits.

{¶9} The Industrial Commission's Motion to Dismiss

{ΒΆ10} As was noted above, each of the three named respondents have moved to dismiss on the basis that relator's allegations are legally insufficient to state a viable claim in mandamus. Even though each of the motions have raised a similar argument under Civ.R. 12(B)(6), this court would indicate that the Industrial Commission's motion has asserted a distinct contention which warrants our initial consideration. Specifically, the Industrial Commission submits that it should be dismissed as a party to this action because relator's petition does not state a claim for relief against it. The Commission further submits that if it is not dismissed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.