Court of Appeals of Ohio, Seventh District, Mahoning
for Reconsideration Motion to Certify a Conflict
Plaintiff-Appellee: Atty. John Regginello Boyd, Rummel,
Carach, Curry, etc. Huntington Bank Building
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
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
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).
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.
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.
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.
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 ¶
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.
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.
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.
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.
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 ...