[Cite as Daniels v. Schottenstein Stores Corp., 2011-Ohio-4959.]




                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96447


                                   KENNETH DANIELS

                                                            PLAINTIFF-APPELLEE

                                                      vs.

                            SCHOTTENSTEIN STORES
                             CORPORATION, ET AL.
                                                            DEFENDANTS-APPELLANTS



                                            JUDGMENT:
                                             DISMISSED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CV-660815 and CV-683562

        BEFORE: Stewart, P.J., Celebrezze, J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                           September 29, 2011
ATTORNEYS FOR APPELLANT

Corey V. Crognale
Meghan Dargay Majernik
Schottenstein Zox & Dunn Co., L.P.A.
250 West Street
Columbus, OH 43215


ATTORNEY FOR APPELLEE

George Mineff, Jr.
1630 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS  FOR              ADMINISTRATOR,   BUREAU   OF   WORKERS’
COMPENSATION

Michael DeWine
Ohio Attorney General

BY: Nancy Q. Walker
Assistant Attorney General
State Office Building, 12th Floor
615 W. Superior Avenue
Cleveland, OH 44113-1899
MELODY J. STEWART, P.J.:

       {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1,1 the records from the Cuyahoga County Court of Common

Pleas, and the briefs submitted by counsel.

       {¶ 2} Defendant-appellant, Schottenstein Stores Corporation (“Schottenstein”),

appeals from the trial court’s denial of its motion for judgment alleging that

plaintiff-appellee, Kenneth C. Daniels (“Daniels”), failed to timely prosecute his workers’

compensation claim in the lower court.                Schottenstein alleges that Daniels was

ineffective in refiling his voluntarily dismissed complaint within the one-year period

required by statute and also complains that it is subject to continuing responsibility for

Daniels’ medical expenses and compensation since a judgment denying Daniels’ right to

participate in the workers’ compensation fund has not been entered.                    Schottenstein

asserts that even though Daniels presently has no valid complaint pending, the trial court

nevertheless refuses to grant it relief by entering judgment.

       {¶ 3} The history of this case is complex and bears noting for purposes of

analysis. Daniels, while employed by Schottenstein, was granted workers’ compensation

benefits after suffering a right knee injury in December 1995. Thereafter, in December

2007, Daniels moved Ohio’s Industrial Commission to amend his claim to additionally


        App.R. 11.1(E) states: “Determination and judgment on appeal. It shall be sufficient
       1


compliance with App. R. 12(A) for the statement of the reason for the court’s decision as to each error
to be in brief and conclusionary form.” See, also, Form 3, Appendix of Forms to the Rules of
Appellate Procedure.
allow for the medical condition of “recurrent deep venous thrombosis.”               This

supplemental claim was denied, and on May 30, 2008, Daniels appealed to the Cuyahoga

County Court of Common Pleas in Case No. CV-660815. Schottenstein subsequently

filed an answer in opposition to the appeal.

       {¶ 4} On February 2, 2009, Daniels successfully filed a second supplementary

claim with the industrial commission for the condition of “major depression, single

episode.” Schottenstein appealed this decision in Case No. CV-683562 and Daniels, in

response, filed an opposing complaint pursuant to R.C. 4123.512(D).

       {¶ 5} On March 24, 2009, the common pleas court granted the parties’ joint

motion to consolidate the above-noted cases. Then, on November 25, 2009, Daniels

filed a notice of voluntary dismissal without prejudice of his appeal, and the court

journalized the same on December 31, 2009.

       {¶ 6} Daniels then allegedly filed a third motion with the industrial commission to

amend his original claim for the allowance of “right knee osteoarthritis.” The disposition

of this motion to amend is not completely clear since the pertinent records of the

industrial commission have not been included as part of the record in this accelerated

appeal. Nevertheless, this court takes judicial notice of Case No. CV-730712 reflecting

that Daniels filed a notice of appeal in Cuyahoga County Common Pleas Court on July 1,

2010. Schottenstein answered this filing on July 29, 2010, and on September 20, 2010,

the parties participated in a case management conference via telephone.
       {¶ 7} On November 16, 2010, Daniels filed a second appeal and complaint in

Case No. CV-741475, also allegedly from the industrial commission’s order denying

allowance of his claim of “right knee osteoarthritis.”2 Schottenstein answered by filing a

motion to dismiss and argued that the lower court lacked jurisdiction due to Daniels’s

untimely filing. Disposition of this motion to dismiss is also pending. Thereafter, on

February 23, 2011, this matter (Case No. CV-741475) was reassigned to the docket from

where the initial appeal was taken (Case No. CV-660815) with a case management

conference set for February 29, 2011.

       {¶ 8} On December 27, 2010, Schottenstein filed a motion for judgment in Case

No. CV-660815 requesting denial of Daniels’s right to workers’ compensation benefits

for the conditions of “recurrent deep venous thrombosis” and “major depression, single

episode,” alleging that Daniels did not timely refile his voluntarily dismissed complaint

within one year as mandated by R.C. 2305.19, Ohio’s savings statute. Schottenstein

appeals from the trial court’s denial of this motion.

       {¶ 9} Daniels contends that the record is devoid of evidence demonstrating that

he has not refiled the action in a timely fashion. Furthermore, he asserts that the validity

and timeliness of his filings subsequent to the voluntary dismissal are issues that are

properly pending for disposition before the trial court.

       {¶ 10} Judicial efficiency is facilitated by the consolidation of claims that share

common questions of law or fact, and therefore “[o]nce consolidated, all of the claims

       2
           It is unclear why two appeals were filed from what seems to be the same order.
and all of the parties in each case must be disposed of before a judgment is final, absent a

finding of ‘no just reason for delay’ pursuant to Civ.R. 54(B),” Bender v. Diemert (Mar.

21, 1991), 8th Dist. Nos. 58304 and 58368. A final order is defined as “an order that

affects a substantial right in an action that in effect determines the action and prevents a

judgment.”      R.C. 2505.02(B)(1). An order affects a substantial right if a party is

foreclosed from appropriate relief in the future if an appeal were not allowed without

delay. Bell v. Mt. Sinai Med. Ctr. (1993) 67 Ohio St.3d 60, 63, 616 N.E.2d 181. “When

more than one claim for relief is presented in an action *** the court may enter final

judgment as to one or more but fewer than all of the claims or parties only upon an

express determination that there is no just reason for delay.”        Civ.R. 54(B).     The

requirements of both R.C. 2505.02 and Civ.R. 54(B) must be satisfied in order for an

entry to constitute a final, appealable order when multiple claims and/or multiple parties

are involved.

       {¶ 11} Here, the trial court’s previous journal entry of Daniels’s notice of

voluntary dismissal could only dispose of Daniels’s amended claim for recurrent deep

venous thrombosis; Daniels is unable to voluntarily dismiss Schottenstein’s appeal with

regard to the industrial commission’s allowance for major depression and, as a result, it

remains pending below.

       {¶ 12} Schottenstein’s appeal is premature since it is not prevented from obtaining

judgment on any claim or claims as a result of the denial of its motion for judgment.
       {¶ 13} For the reasons stated above, the trial court’s decision is not a final,

appealable order. This court is, therefore, without jurisdiction. Accordingly, this appeal

is dismissed for lack of a final, appealable order.

       It is ordered that appellee recover of appellants his costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



___________________________________________
MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR
