Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor BY: Dale F. Pelsozy Nora Graham Assistant
ATTORNEYS FOR APPELLEE Donald Butler Mike DeWine Ohio
Attorney General BY: Steven K. Aronoff Assistant State
BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
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.
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."
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
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.
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.
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.
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.
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 ...