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Margaret H. Jones v. City of Xenia

October 28, 2011

MARGARET H. JONES
PLAINTIFF-APPELLEE
v.
CITY OF XENIA, ET AL.
DEFENDANT-APPELLANT



(Civil appeal from Common Pleas Court) T.C. NO. 10CV1029

The opinion of the court was delivered by: Donovan, J.

Cite as Jones v. Xenia,

OPINION

{¶1} Defendant-appellant City of Xenia (hereinafter "Xenia") appeals a decision of the Greene County Court of Common Pleas denying its motion to dismiss plaintiff-appellee Ohio Bureau of Workers' Compensation's (hereinafter "the BWC") complaint filed against Xenia for a subrogation interest regarding a negligence action originally filed by plaintiff-appellee Margaret H. Jones against Xenia. Xenia filed a timely notice of appeal with this Court on April 15, 2011.

I

{¶2} The instant appeal arises out of a negligence action against Xenia initiated by Jones after she allegedly tripped and fell in a parking lot owned by the city. In her original complaint, Jones named both Xenia and the BWC as defendants. On October 19, 2010, the BWC filed a motion requesting that the trial court realign it as a plaintiff in Jones' lawsuit against Xenia. The trial court granted the BWC's motion for realignment one day later, on October 20, 2010. On October 21, 2010, the BWC filed its complaint against Xenia for subrogation, pursuant to R.C. 4123.931. Specifically, the BWC sought a subrogation interest regarding reimbursement for medical expenses it paid to or on behalf of plaintiff-appellee Margaret H. Jones for injuries she received as a result of the alleged negligence of Xenia in maintaining the parking lot.

{¶3} On November 5, 2010, Xenia filed a motion to dismiss the BWC's complaint pursuant to Civ. R. 12(B)(6), in which it argued that R.C. 2744.05(B) bars subrogation actions against political subdivisions. The BWC filed its response to Xenia's motion to dismiss on December 2, 2010. On December 13, 2010, Xenia filed a motion to strike the BWC's response, or in the alternative, a reply in support of its motion to dismiss. The trial court denied Xenia's motion to dismiss and its motion to strike in a written decision filed on March 22, 2010.

{¶4} It is from this judgment that Xenia now appeals. II

{¶5} Because they are interrelated, Xenia's first and second assignments of error will be discussed together as follows:

{¶6} "THE TRIAL COURT ERRED IN CONCLUDING THAT O.R.C. 4123.931 AND O.R.C. 2744.05 ARE RECONCILABLE AND NOT IN CONFLICT."

{¶7} "THE TRIAL COURT ERRED IN NOT GIVING O.R.C. 2744.05 EFFECT PURSUANT TO O.R.C. 1.52."

{¶8} In its first assignment, Xenia contends that the trial court erred when it found that R.C. 4123.931 was not in conflict with R.C. 2744.05. In its second assignment, Xenia argues that the trial court failed to give effect to R.C. 2744.05 in conjunction with R.C. 1.52.

Specifically, Xenia asserts that since the current version of R.C. 2744.05 was enacted more recently than the current version of R.C. 4123.931, the language in R.C. 2744.05 prevails, thus barring any subrogation action against a political subdivision. We note that the BWC did not file a brief. Jones filed an appellee's brief, but her argument does not address any of the issues involved in the instant appeal.

{ΒΆ9} "The standard of review on a Civ.R. 12(B)(6) motion to dismiss, which raises questions of law, is de novo. (Citation omitted)." ...


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