[Cite as Arthur v. Sequent, Inc., 2019-Ohio-3075.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                             JUDGES:
SCOTT E. ARTHUR                                      :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee          :       Hon. Patricia A. Delaney, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 19 CAE 02 0017
SEQUENT, INC.                                        :
                                                     :
                      Defendant-Appellee             :       OPINION
                                                     :

AND

SARAH MORRISON,
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                                 Civil appeal from the Delaware County
                                                         Court of Common Pleas, Case No. 19-
                                                         CVD-010046

JUDGMENT:                                                Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                  July 29, 2019

APPEARANCES:

For Plaintiff-Appellee Scott Arthur                      For Defendant-Appellant

ROBERT ROBINSON                                          NATALIE TACKETT
226 North Fifth Street, Ste. 501                         Assistant Attorney General
Columbus, Ohio 43215                                     150 East Gay Street
                                                         Columbus, Ohio 43215
[Cite as Arthur v. Sequent, Inc., 2019-Ohio-3075.]


Gwin, P.J.

        {¶1}     Scott Arthur and the Bureau of Workers’ Compensation both appeal the

January 29, 2019 judgment entry of the Delaware County Court of Common Pleas

dismissing Arthur’s case for lack of jurisdiction.

                                           Facts & Procedural History

        {¶2}     Scott Arthur (“Arthur”) was injured in 2009 while working for Sequent

Incorporated. Following his injury, Arthur filed an application for compensation and

benefits pursuant to the Workers’ Compensation Act. Arthur’s claim was allowed for

several conditions, including lumbar disc herniation and degenerative disc disease at the

L5-S1 level. In 2016, Arthur filed a motion for additional allowance of the claim for the

condition of substantial aggravation of pre-existing facet arthropathy L5-S1. After a

district hearing officer and staff hearing officer denied Arthur’s motion for additional

allowance, the Industrial Commission refused Arthur’s appeal on March 16, 2017.

        {¶3}     Arthur filed a notice of appeal with the Delaware Court of Common Pleas

on April 7, 2017, appealing the March 16, 2017 order of the Industrial Commission. Also

on April 7, 2017, Arthur filed a complaint requesting he be allowed to participate in the

Workers’ Compensation Fund. The Bureau of Workers’ Compensation (“BWC”) filed an

answer to Arthur’s complaint on May 9, 2017. On January 9, 2018, Arthur filed a notice

of dismissal without prejudice, stating he voluntarily dismissed the action, without

prejudice, pursuant to Civil Rule 41(A).

        {¶4}     Arthur refiled his complaint on December 19, 2018 in the Franklin County

Court of Common Pleas. On December 27, 2018, Arthur filed a motion for change of

venue, stating he erroneously refiled his complaint in Franklin County due to a clerical
Delaware County, Case No. 19 CAE 02 0017                                                    3


error and requesting the Franklin County Court of Common Pleas transfer the case to the

Delaware County Court of Common Pleas, where venue was appropriate. On January

3, 2019, the Franklin County Court of Common Pleas granted Arthur’s motion for change

of venue and ordered the action be transferred to the Delaware County Court of Common

Pleas. The Franklin County Clerk of Courts sent certified copies of the docket and

pleadings in the case to the Delaware County Clerk of Courts on January 14, 2019. On

January 25, 2019, the Clerk of the Delaware County Common Pleas Court sent notice to

the parties that the case had been transferred from the Franklin County Court of Common

Pleas to the Delaware County Court of Common Pleas.

       {¶5}   The trial court issued a judgment entry on January 29, 2019 dismissing the

case for lack of jurisdiction. The trial court stated that, in the absence of a timely-filed

notice of appeal, it lacked jurisdiction to consider an appeal from an order of the Industrial

Commission. The trial court noted Arthur’s original notice of appeal was timely filed less

than thirty days after the March 2017 Industrial Commission order. The trial court further

found when Arthur dismissed his action pursuant to Civil Rule 41(A), Arthur also

dismissed his appeal and it was incumbent upon Arthur to refile his notice of appeal with

the refiled complaint. The trial court determined since Arthur refiled only his complaint

within the one-year limitation period contained in the savings statute of R.C. 2305.19 and

because the timely filing of a notice of appeal is essential to invoking the jurisdiction of

the trial court, it lacked jurisdiction to proceed in the matter. On February 21, 2019, the

trial court granted the BWC’s motion for leave to file answer instanter.

       {¶6}   The BWC appeals the January 29, 2019 judgment entry of the Delaware

County Court of Common Pleas and assigns the following as error:
Delaware County, Case No. 19 CAE 02 0017                                                 4


       {¶7}   “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

IMPROPERLY IMPOSING A REQUIREMENT THAT THE PLAINTIFF FILE A ‘SECOND’

R.C. 4123.512 NOTICE OF APPEAL FOLLOWING THE DISMISSAL OF HIS

COMPLAINT UNDER CIV.R.41(A)(1) THAT IS NOT MANDATED BY ANY STATUTE,

RULE, OR OTHER CODE PROVISION.

       {¶8}   “II. THE TRIAL COURT ERRED BY TREATING THE R.C. 4123.512

NOTICE OF APPEAL THE SAME AS A COMPLAINT FOR PURPOSES OF APPLYING

THE SAVINGS STATUTE TO IMPROPERLY REQUIRE THAT BOTH THE NOTICE OF

APPEAL AND COMPLAINT MUST BE RE-FILED WITHIN ONE YEAR OF THE

DISMISSAL OF THE COMPLAINT UNDER CIV.R. 41(A)(1).”

                                             I. & II.

       {¶9}   In their assignments of error, the BWC argues the trial court erred in

dismissing Arthur’s complaint for lack of jurisdiction. The BWC contends if this Court lets

the decision of the trial court stand, it would negatively impact thousands of notices of

voluntary dismissals and refiled complaints in Ohio. Arthur, the appellee in this case,

adopts the brief of the BWC and agrees the trial court erred in finding it lacked subject-

matter jurisdiction over the case.

       {¶10} Determining whether a trial court has subject matter jurisdiction is reviewed

de novo. Wells Fargo Bank, N.A. v. Elliot, 5th Dist. Delaware No. 13 CAE 03 0012, 2013-

Ohio-3690.

       {¶11} The appeal in a workers’ compensation case begins with the filing of a

notice of appeal. R.C. 4123.512(A). R.C. 4123.512 provides that the notice of appeal

should state the following: the names of the administrator of workers’ compensation, the
Delaware County, Case No. 19 CAE 02 0017                                                     5


claimant, and the employer; the number of the claim; the date of the order appealed from;

and the fact that the appellant appeals therefrom. Within thirty days thereafter, the

claimant must “file a petition containing a statement of facts in ordinary and concise

language showing a cause of action to participate or to continue to participate in the fund

and setting forth the basis for the jurisdiction of the court over the action.”           R.C.

4123.512(D). The petition is for all intents and purposes a complaint. Robinson v. B.O.C.

Group, Gen. Motors Corp., 81 Ohio St.3d 361, 691 N.E.2d 419 (10th Dist. 1991).

       {¶12} The Ohio Supreme Court has held that a workers’ compensation claimant

may employ Civil Rule 41(A) to voluntarily dismiss an appeal to the court of common

pleas. Kaiser v. Ameritemps, 84 Ohio St.3d 411, 704 N.E.2d 1212 (1999). In the context

of an employee voluntarily dismissing an appeal of the employer, the Supreme Court held

that, if an employee does not refile his complaint within a year pursuant to the savings

statute, the employee cannot prove his entitlement to participate in the workers’

compensation system. Id. The Supreme Court stated, “the voluntary dismissal of the

claimant’s complaint does not affect the employer’s notice of appeal, which remains

pending until the refiling of claimant’s complaint.” Id. Similarly, in this case, the voluntary

dismissal of Arthur’s complaint did not affect the timely notice of appeal, which remains

pending until the refiling of the complaint.

       {¶13} In Lewis v. Connor, the Ohio Supreme Court held, “where a notice of appeal

is filed within the time prescribed by R.C. 4123.519 and the action is dismissed without

prejudice after expiration of that time, R.C. 2305.19, the savings statute, is applicable to

workers’ compensation complaints filed in the common pleas court.” 21 Ohio St.3d 1,

487 N.E.2d 285 (1985).       The Ohio Supreme Court found that the “timely filing of
Delaware County, Case No. 19 CAE 02 0017                                                     6


appellant’s notice of appeal was the only act necessary to vest jurisdiction in the common

pleas court” and nothing in R.C. 4123.519 prohibits the refiling of a complaint where the

original notice of appeal was timely filed. There is no language in Lewis that requires the

refiling of the notice of appeal after a voluntary dismissal by the employee in order to

utilize the savings statute. The Ohio Supreme Court held the savings statute also applies

to employee dismissals of employer-initiated appeals and held that, in an employer-

initiated appeal, if the employee voluntarily dismisses his or her petition and fails to refile

the complaint within one year as allowed by the savings statute, the employer is entitled

to judgment on its appeal. Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 2006-Ohio-

1712, 844 N.E.2d 1193. Again, the Supreme Court did not include any language requiring

the refiling of a notice of appeal after a voluntary dismissal in order to utilize the savings

statute. The Ohio Supreme Court again considered the use of a voluntary dismissal in

an employer’s appeal and determined a claimant must obtain the consent of an employer

to voluntarily dismiss a complaint in an employer’s appeal. Ferguson v. State, 151 Ohio

St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250. The Court discussed no requirement of a

refiling of the notice of appeal.

       {¶14} We find the cases cited by the trial court to be distinguishable from the

instant case. In Day v. Noah’s Ark Learning Center, 5th Dist. Delaware No. 01-CVE-12-

068, 2002-Ohio-4245, the appellant filed only a petition and not a notice of appeal and

thus we held the common pleas court was never vested with jurisdiction over the case.

In this case, Arthur filed a timely notice of appeal with his petition in 2017. In Beaumont

v. Kvaerner North American Construction, 11th Dist. Trumbull No. 2013-T-0047, 2013-

Ohio-5847, the Eleventh District dealt with jurisdiction over new issues presented in an
Delaware County, Case No. 19 CAE 02 0017                                                   7


employer’s counterclaim when an employer did not file a notice of appeal. In this case,

the employer did not file a counterclaim and Arthur did file a timely notice of appeal in

2017.

        {¶15} The trial court relied heavily on Jackson v. American Bulk Commodities,

Inc., 4th Dist. Washington No. 17CA33, 2018-Ohio-3706. We first note that Jackson, a

decision by the Fourth District Court of Appeals, is not binding on this Court. Moore v.

Michalski, 5th Dist. Fairfield No. 17-CA-44, 2018 WL 3904257. Second, we find Jackson

distinguishable from the instant case, as the dismissal in Jackson specifically states the

“dismissal terminates the case,” and the Fourth District’s finding that the appellant could

refile both its notice of appeal and untimely complaint led to a “result in line with R.C.

4123.95’s statutory mandate which requires courts to liberally construe the workers’

compensation laws in favor of employees.” In this case, the voluntary dismissal does not

specifically state the “dismissal terminates the case.” Further, the dismissal of Arthur’s

complaint is not in line with the requirement of R.C. 4123.95 to construe the workers’

compensation statutes liberally in favor of employees. R.C. 4123.95; see also Stoneman

v. Zimmer Orthopaedic Surgical Prods, Inc., 5th Dist. Tuscarawas No. 2007 AP 08 0045,

2008-Ohio-5336.

        {¶16} Courts have consistently held the only act that confers jurisdiction on the

common pleas court pursuant to R.C. 4123.512 is the filing of the notice of appeal, not

the complaint, and the trial court does not lose jurisdiction over a case when a claimant

voluntarily dismisses a case. Donini v. Manor Care, Inc., 4th Dist. Scioto No. 13CA3583,

2014-Ohio-1767 (stating the “only act that confers jurisdiction on the common pleas court

is the filing of the notice of appeal”); Rice v. Stouffer Foods Corp., 8th Dist. Cuyahoga No.
Delaware County, Case No. 19 CAE 02 0017                                                   8


72515, 1997 WL 691156 (Nov. 6, 1997) (holding a voluntary dismissal does not oust the

common pleas court of jurisdiction, as the employer’s appeal is still pending, subject to

the refiling of the complaint under the savings statute and the trial court did not lose

jurisdiction at the time of the voluntary dismissal); Case v. Ohio Bureau of Workers’

Compensation, 4th Dist. Washington No. 96 CA 1, 1996 WL 451359 (Aug. 1, 1996)

(holding the filing of a new complaint, not the filing of a new notice of appeal, invokes the

benefit of the savings statute); Gambrel v. C.J. Mahan Constr. Co., 10th Dist. Franklin

No. 07AP-1023, 2008-Ohio-3288 (holding the voluntary dismissal of a petition does not

divest the common pleas court of jurisdiction over the case, which is vested by the timely

filing of a notice of appeal); Harsco Corp. v. Bishop, 12th Dist. Madison No. CA2000-12-

052, 2001 WL 115548 (Oct. 1, 2001) (stating a Civil Rule 41(A) dismissal by the claimant

does not affect the employer’s notice of appeal, which remains pending until the refiling

of the complaint); Smith v. Continental Airlines, Inc., 8th Dist. Cuyahoga No. 81010, 2002-

Ohio-4181 (holding the mere voluntary dismissal of the complaint does not deprive the

common pleas court of jurisdiction, as only the complaint is dismissed and the notice of

appeal is the only act required to vest jurisdiction in the court); McKinney v. Ohio State

Bureau of Workers’ Comp., 10th Dist. Franklin No. 04AP-1086, 2005-Ohio-2330 (holding

the voluntary dismissal of the claimant’s complaint does not affect the notice of appeal,

which remains pending until the refiling of the complaint); Yates v. G&J Pepsi-Cola

Bottlers, 4th Dist. Scioto No. 15CA3711, 2016-Ohio-1436 (stating that by the plain

language of the voluntary dismissal and consistent with the governing statutes, rules, and

precedent, the common pleas court retained jurisdiction over the notice of appeal after

claimant voluntarily dismissed his complaint).
Delaware County, Case No. 19 CAE 02 0017                                                     9


       {¶17} Based on the foregoing, the BWC’s assignments of error are sustained.

Arthur perfected subject matter jurisdiction in the common pleas court by filing his timely

notice of appeal in 2017. Both Arthur and the BWC agree that nothing in the statutes,

case law, or civil rules of procedure require the refiling of a notice of appeal as well as the

complaint. We find the trial court committed error in dismissing Arthur’s complaint for lack

of subject matter jurisdiction.

       {¶18} The January 29, 2019 judgment entry of the Delaware County Court of

Common Pleas is reversed and remanded for proceedings consistent with this opinion.


By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
