[Cite as Dobransky v. Cleveland Metro. Park Sys., 2013-Ohio-266.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98533



                                 AMY L. DOBRANSKY

                                                          PLAINTIFF-APPELLEE

                                                    vs.

         CLEVELAND METRO PARK SYSTEM, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CV-707077 and CV-708492

        BEFORE: Stewart, A.J., Jones, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                         January 31, 2013
ATTORNEYS FOR APPELLANT BOARD OF PARK COMMISSIONERS OF
THE CLEVELAND METROPOLITAN PARK DISTRICT

Michael J. Bertsch
Kathleen E. Gee
Nicola, Gudbranson & Cooper, LLC
Republic Building, Suite 1400
25 West Prospect Avenue
Cleveland, OH 44115


ATTORNEYS FOR APPELLEE

Jerald A. Schneiberg
Stacy M. Callen
Jennifer L. Lawther
Nager, Romaine & Schneiberg Co., LPA
27730 Euclid Avenue
Cleveland, OH 44132


ATTORNEYS FOR DEFENDANT                ADMINISTRATOR,   BUREAU   OF
WORKERS’ COMPENSATION

Mike DeWine
Attorney General

BY: Mark E. Mastrangelo
Assistant Attorney General
Workers’ Compensation Section
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

         {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and

the briefs and oral arguments of counsel. Appellant Board of Park Commissioners of

the Cleveland Metropolitan Park District (“the board”) appeals from a court of common

pleas order that denied its motion to dismiss a workers’ compensation appeal filed by its

employee, appellee Amy Dobransky.

         {¶2} The underlying litigation involved separate appeals from the Industrial

Commission of Ohio on workers’ compensation claims filed by Dobransky against the

board:    one appeal filed by Dobransky (CV-707077); the other appeal filed by the board

(CV-708492). As required by R.C. 4123.512(D), Dobransky filed complaints in both

cases.    The appeals were consolidated.   Dobransky then filed, with the board’s consent,

a notice of    voluntary dismissal without prejudice.   After one year elapsed from the

date of the voluntary dismissal without Dobransky refiling the appeals, the board asked

the court to dismiss the appeals because the appeals would be time-barred under R.C.

2305.19, the savings statute. The court found the board’s motion was moot because

Dobransky’s dismissal without prejudice meant there was “no pending litigation before

this court.”
      {¶3} The court erred by concluding it lacked jurisdiction to consider the board’s

appeal.   “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.” Kaiser v. Ameritemps, Inc., 84 Ohio St.3d 411, 415, 1999-Ohio-360, 704

N.E.2d 1212. We thus held in Smith v. Continental Airlines, Inc., 8th Dist. No. 81010,

2002-Ohio-4181, that the court of common pleas “retained jurisdiction” over an

employer’s notice of appeal even though it had been dismissed by the employee and that

the court erred by refusing to grant the employer’s motion for judgment on the pleadings

when the employee failed to refile his complaint within the savings statute. Id. at ¶

16-21, citing Rice v. Stouffer Foods Corp., 8th Dist. No. 72515, 1997 Ohio App. LEXIS

4872 (Nov. 6, 1997). It follows that the court erred by refusing to dismiss Dobransky’s

complaint.

      {¶4} With the court having jurisdiction to rule on the board’s motion to dismiss,

that motion should have been granted on the authority of Nykiel v. Northcoast Moving

Ents., 8th Dist. No. 97009, 2012-Ohio-272.     Nykiel involved facts identical to those in

this case — an employer appealed a decision of the industrial commission, the employee

later dismissed the petition and failed to refile it within one year as required by the

savings statute, and the court refused to grant the employer’s motion for judgment on the

pleadings. We held that the court erred by refusing to grant judgment on the pleadings

because “Nykiel failed to re-file his dismissed complaint within the one-year prescribed in

R.C. 2305.19.” Id. at ¶ 9.    As in Nykiel, there is no question that Dobransky failed to
refile her complaint within the one-year savings statute, so the court erred by failing to

grant the board’s motion to dismiss.

       {¶5} Dobransky argues that Nykiel is distinguishable because the board gave its

consent to the voluntary dismissal in this case, whereas it “appears that in Nykiel, both

parties did not sign the Notice of Dismissal.” Appellee’s Brief at 10. We disagree.

The facts in Nykiel show that the voluntary dismissal occurred on August 5, 2009. This

was after R.C. 4123.512(D) was amended effective August 25, 2006, to end an

employee-claimant’s right to unilaterally dismiss a complaint brought by an employer and

require that an employee obtain the employer’s consent to the dismissal of the employer’s

appeal.   See Thorton v. Montville Plastics & Rubber, Inc., 121 Ohio St.3d 124,

2009-Ohio-360, 902 N.E.2d 482, fn. 2.        Nykiel was subject to the amended R.C.

4123.512(D) and could only have dismissed his employer’s complaint with the

employer’s prior approval. So no distinction exists between this case and Nykiel.

       {¶6} Finally, we reject Dobransky’s argument that the board should be estopped

from seeking to enforce the savings statute because it consented to her voluntary

dismissal. The board’s consent to Dobransky’s voluntary dismissal of its appeal did not

mean that it was conceding or settling the question of benefits in Dobransky’s favor and

that Dobransky did not have to refile her petition.   Had that been the case, the board

would arguably have consented to a dismissal with prejudice.

       {¶7} This cause is reversed and remanded to the trial court for further proceedings

consistent with this opinion.
      It is ordered that appellant recover of appellee its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.              A   certified

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

Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
PATRICIA ANN BLACKMON, J., CONCUR
