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Johnson v. Cuyahoga County

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

ROBERT JOHNSON PLAINTIFF-APPELLEE
v.
CUYAHOGA COUNTY, OHIO, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861770

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Dale F. Pelsozy Nora Graham Assistant County Prosecutors

          ATTORNEYS FOR APPELLEE Donald Butler Mike DeWine Ohio Attorney General BY: Steven K. Aronoff Assistant State Attorney General

          BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} Defendant-appellant, Cuyahoga County, appeals the trial court's dismissal of plaintiff-appellee's, Robert Johnson, complaint pursuant to Civ.R. 41(A). We affirm.

         {¶2} Robert Johnson claimed he was injured on September 8, 2015, during the course and scope of his employment with Cuyahoga County. He filed a claim with appellee, Ohio Bureau of Workers' Compensation ("BWC"), and his claim was allowed for "partial thickness tear of the Achilles tendon right ankle."

         {¶3} In April 2016, the county appealed to the court of common pleas. After the county filed its appeal to the common pleas court, Johnson, as mandated, filed his complaint for benefits in compliance with the procedure that places the burden on him to start anew in the common pleas court and prove his claim.

         {¶4} In September 2016, Johnson filed a notice of voluntary dismissal of his complaint under Civ.R. 41(A) and the trial court dismissed the case. Johnson did not obtain his employer's consent before dismissing his complaint.

         {¶5} Cuyahoga County now appeals, raising one assignment of error for our review:

The trial court erred in allowing a dismissal under Civil Rule 41(A) of the Ohio Rules of Civil Procedure when the appeal in the trial court was instigated.

         {¶6} In 2006, the Ohio General Assembly enacted Am.Sub.S.B. No. 7 (S.B. 7). In relevant part, S.B. 7 amended R.C. 4123.512(D) and "ended an employee-claimant's unilateral ability to voluntarily dismiss the complaint in an appeal brought by an employer." Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124, 2009-Ohio-360, 902 N.E.2d 482, ¶ 5. Pursuant to the amendment, an employer must now consent to the voluntary dismissal of the appeal without prejudice. Id. at ¶ 14. Cuyahoga County and the BWC both argue that, pursuant to the plain language of R.C. 4123.512(D), the trial court should have denied Johnson's notice to dismiss his complaint.

         {¶7} This court has held, however, that the requirement in amended R.C. 4123.512(D) that a plaintiff obtain an employer's consent prior to filing a motion to dismiss an appeal, violates the Ohio Constitution, Article IV, Section 5(B) because it is in contravention of Civ.R. 41(A)(1)(a). Ferguson v. State, 2015-Ohio-4499, 42 N.E.3d 804, ¶ 18 (8th Dist), appeal accepted, 145 Ohio St.3d 1421, 2016-Ohio-1173, 47 N.E.3d 165. In Ferguson, this court found the amended statute unconstitutional because it violates the basic principles of separation of powers, equal protection, and due process. Id. at ¶ 37.

         {¶8} We note that Ferguson has been accepted by the Ohio Supreme Court as a discretionary appeal. Until such time as Ferguson is decided by the Ohio Supreme Court, the holding in Ferguson remains binding precedent in this district. Thus, the requirement that an injured worker obtain his or her employer's consent before dismissing his or her complaint under Civ.R. 41 is not the law in this district. As such, the trial court did not ...


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