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Cosgrove v. Manor

Court of Appeals of Ohio, Seventh District, Mahoning

February 16, 2017

ELIZABETH COSGROVE, PLAINTIFF-APPELLEE,
v.
OMNI MANOR et al., DEFENDANT-APPELLANT.

         Application for Reconsideration Motion to Certify a Conflict

          For Plaintiff-Appellee: Atty. John Regginello Boyd, Rummel, Carach, Curry, etc. Huntington Bank Building

          For Defendant-Appellant: Atty. C. Scott Lanz Atty. Adam Buente Manchester, Newman & Bennett LPA

          JUDGES: Hon. Carol Ann Robb Hon. Timothy P. Cannon of the Eleventh District Court of Appeals, Sitting by assignment. Hon. Thomas R. Wright of the Eleventh District Court of Appeals, Sitting by assignment.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Defendant-Appellant Omni Manor, Inc. ("the employer") has filed a timely application for reconsideration of our December 16, 2016 judgment, wherein we affirmed a jury verdict and judgment rendered in favor of Plaintiff-Appellee Elizabeth Cosgrove ("the worker"). The employer has also filed a timely motion to certify a conflict. For the following reasons, we find no obvious error in our decision, and we deny the application for reconsideration. In addition, the motion to certify a conflict is denied as we do not find the cited cases contain dispositive holdings on the same rule of law set forth in this case and/or they are distinguishable for various reasons.

         {¶2} This case originated in the Mahoning County Common Pleas Court upon the worker's appeal of a workers' compensation decision. The case was tried to a jury with a magistrate presiding. The jury was presented with three verdict forms, each describing an injury discussed in the trial testimony and named in the petition filed after the notice of appeal pursuant to R.C. 4123.512(D). The employer did not object to the testimony or the verdict forms. The jury found in favor of the worker for L3-L4 right-sided disc extrusion (herniation) with migrating free fragment (and found against the worker for two levels of stenosis contained in the other two verdict forms).

         {¶3} In objecting to the magistrate's memorialization of the jury verdict, the employer claimed the court lacked subject matter jurisdiction because the injury for which the verdict was rendered was not the injury adjudicated (and denied) administratively. This defense was set forth in the employer's answer but was not mentioned again until the employer objected to the magistrate's decision. The trial court overruled the objection and entered judgment for the worker in accordance with the jury verdict.

         {¶4} In appealing to this court, the employer argued the injury was a claim which never proceeded through the administrative process, claiming only lumbar strain/sprain was administratively adjudicated. The parties disputed whether the extrusion/herniation injury proceeded through the administrative process and, if not, whether the Supreme Court's decision in Ward prohibited a verdict on the extrusion/herniation injury. See Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155 (concluding the scope of an R.C. 4123.512 appeal is limited to the medical conditions addressed in the order from which the appeal was taken). We opined the employer would have been justified in arguing against submission of a jury verdict form for the extrusion/herniation condition before or during trial. Cosgrove v. Omni Manor, Inc., 7th Dist. No. 15 MA 0207, 2016-Ohio-8481, ¶ 44.

         {¶5} However, we concluded the employer waived the issue by allowing the injury to be tried and submitted to the jury without maintaining the defense regarding the scope of the trial. Id. at ¶ 45-47. In Ward, the issue was raised prior to trial when the employer opposed the plaintiffs motion to amend the complaint to add a different injury. Ward, 106 Ohio St.3d 35 at ¶ 2. We pointed out the Ward Court noted how some appellate decisions hold a trial court exceeds its "jurisdiction" if it hears a condition which was not administratively adjudicated. Cosgrove, 7th Dist. No. 15 MA 0207 at ¶ 49. The Supreme Court said these courts "come closer to the mark, although their reasoning requires some amplification." Id., quoting Ward, 106 Ohio St.3d 35 at ¶ 9. Notably, the Ward Court did not then refer to subject matter jurisdiction or a void judgment.

         {¶6} In the case at bar, we recognized a lack of subject matter jurisdiction can be challenged at any time as it renders a judgment void ab initio. Id. at ¶ 49, citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 17 and Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11. We then concluded the issue (concerning the scope of the trial in relation to the scope of the administrative proceeding denying the right to participate) was not a question of subject matter jurisdiction. We pointed out the use of the word "jurisdiction" does not necessarily refer to subject matter jurisdiction; besides the matter of personal jurisdiction, the use of the word "jurisdiction" is often used to refer to a third category of jurisdiction: the court's jurisdiction over a particular case. Cosgrove, 7th Dist. No. 15 MA 0207 at ¶ 50, citing Kuchta, 141 Ohio St.3d 75 at ¶ 18 (noting how unspecified use of the word leads to confusion) and Pratts, 102 Ohio St.3d 81 at ¶ 12, 33.

         {¶7} This court pointed out how subject matter jurisdiction is to be "determined without regard to the rights of the individual parties involved in a particular case" whereas individual rights are considered when ascertaining the third category of jurisdiction. Cosgrove, 7th Dist. No. 15 MA 0207 at ¶ 51, quoting Kuchta, 141 Ohio St.3d 75 at ¶ 19. The third category of jurisdiction pertains to "the court's authority to proceed or rule on a case that is within the court's subject-matter jurisdiction." Kuchta, 141 Ohio St.3d 75 at ¶ 19. Where there is subject matter jurisdiction "any error in the invocation or exercise of jurisdiction over a particular case causes a judgment to be voidable rather than void." Id. We concluded the issue in Ward dealt with a court's authority to proceed or rule in a particular case within the court's subject matter jurisdiction. Cosgrove, 7th Dist. No. 15 MA 0207 at ¶ 52.

         {¶8} The employer disagrees with our conclusion and seeks reconsideration under App.R. 26(A)(1). The standard for reviewing an application for reconsideration is whether the application calls to the attention of the court a legally unsupportable holding or an obvious error in its decision, or whether it points to an issue that should have been but was not fully considered. See, e.g., Niki D'Atri Ents. v. Hines, 7th Dist. No. 13 MA 0057, 2014-Ohio-803, ¶ 3. An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusion reached and the logic used by an appellate court. Id.

         {¶9} The employer believes our holding constituted an obvious error. The employer insists the trial court lacked subject matter jurisdiction over the extrusion/herniation condition, claiming the worker failed to comply with the requirements for judicial review set forth in the R.C. 4123.512. The employer relies on four Ohio Supreme Court cases, a case from this court, and cases from various other appellate courts. (As some cases are not recent, we note the requirements for a workers' compensation appeal contained in R.C. 4123.512 were once contained in R.C. 4123.519.) The worker's response distinguishes this case (where the claim was completely denied administratively) from cases where a condition was allowed below.

         {¶10} In one case cited by the employer, the Supreme Court found a lack of subject matter jurisdiction where the notice of appeal was not filed in "the common pleas court of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state" as required by R.C. 4123.519. Jenkins v. Keller, 6 Ohio St.2d 122, 216 N.E.2d 379 (1966). Since the contract of employment was entered into in Maryland and decedent was killed in that state, the Jenkins Court held the Mahoning County Common Pleas Court lacked subject matter jurisdiction. Id. at 126 (and the matter could be raised for the first time on appeal). We do not find this holding on point.

         {¶11} In another case cited by the employer, the Supreme Court found the trial court did not have subject matter jurisdiction over an executor's appeal because the worker's legal representative had no right to appeal under R.C. 4123.519. Breidenbach v. Mayfield, 37 Ohio St.3d 138, 141, 524 N.E.2d 502, 504 (1988). However, this decision was ...


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