[Cite as Dillard v. Automation Tool & Die, Inc., 2013-Ohio-5645.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

GLEN DILLARD                                               C.A. No.   12CA0091-M

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
AUTOMATION TOOL & DIE, INC., et al.                        COURT OF COMMON PLEAS
                                                           COUNTY OF MEDINA, OHIO
        Appellee                                           CASE No.   10CIV2236

                                 DECISION AND JOURNAL ENTRY

Dated: December 23, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Glen Dillard appeals the denial of his motion to dismiss pursuant to Civ.R.

41(A)(2). For the reasons set forth below, we conclude that we are without jurisdiction to hear

this appeal and dismiss for lack of jurisdiction.

                                                     I.

        {¶2}     In 2009, Mr. Dillard suffered an injury while working for Automation Tool &

Die, Inc. (“ATD”). He filed a worker’s compensation claim, and the Industrial Commission

granted a portion of his claim. ATD appealed the Commission’s decision to the court of

common pleas pursuant to R.C. 4123.511 and 4123.512 on December 30, 2010. Trial was set for

May 7, 2012; however, on April 30, 2012, Mr. Dillard moved pursuant to Civ.R. 41(A)(2) to

dismiss the case. In his motion, Mr. Dillard explained that the parties disagreed about whether

his disc injuries occurred as a result of the back injury sustained in the course of his employment

and that, in early 2012, a doctor recommended that he undergo back surgery. Mr. Dillard sought
                                                    2


dismissal to provide additional time to confer with his doctors and because the surgery could

provide valuable information about the nature and origin of his injury. ADT opposed Mr.

Dillard’s motion, and the trial court eventually denied the motion to dismiss on October 24,

2012.

        {¶3}      Mr. Dillard has appealed, raising a single assignment of error for review.

                                                  II.

        {¶4}      Prior to briefs being submitted in this case, ADT submitted a motion to dismiss

Mr. Dillard’s appeal in which it argued that the trial court’s denial of a Civ.R. 41(A)(2) motion

did not constitute a final, appealable order. Mr. Dillard responded in opposition, and this Court

deferred ruling on ADT’s motion until the final disposition of the case.

        {¶5}      This Court has an obligation to ensure that it has jurisdiction to hear an appeal.

Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). This Court

has jurisdiction to hear appeals only from final judgments. Article IV, Section 3(B)(2), Ohio

Constitution; R.C. 2505.02. In the absence of a final, appealable judgment or order, this Court

must dismiss the appeal for lack of subject matter jurisdiction. Lava Landscaping, Inc. v. Rayco

Mfg., Inc., 9th Dist. Medina No. 2930-M, 2000 WL 109108, *1 (Jan. 26, 2000).

        {¶6}      Mr. Dillard argues that the trial court’s denial of his Civ.R. 41(A)(2) motion was a

final, appealable order either because it affected a substantial right, see R.C. 2505.02(B)(1)-(2),

or because it was a provisional remedy. See R.C. 2505.02(B)(4).1 We disagree.

R.C. 2505.02(B)(1)-(2)

        {¶7}      R.C. 2505.02(B)(1)-(2) provides that

        [a]n order is a final order that may be reviewed, affirmed, modified, or reversed,
        with or without retrial, when it is one of the following:

        1
            It is undisputed that R.C. 2505.02(B)(3) and (5) are inapplicable in this case.
                                                  3


       (1) An order that affects a substantial right in an action that in effect determines
       the action and prevents a judgment;

       (2) An order that affects a substantial right made in a special proceeding or upon a
       summary application in an action after judgment;

“‘Substantial right’ means a right that the United States Constitution, the Ohio Constitution, a

statute, the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.

2505.02(A)(1).

       {¶8}    Mr. Dillard argues that the trial court’s denial of his motion to dismiss pursuant to

Civ.R. 41(A)(2) affects a substantial right. In support, he points to decisions that have held that a

trial court’s striking of a Civ.R. 41(A)(1)(a) notice of dismissal affected an employee’s

substantial right. See Keller v. Johns Manville, 178 Ohio App.3d 691, 2008-Ohio-5803, ¶ 17

(6th Dist.) (“We find that [the employee’s] right to dismiss her complaint pursuant to Civ.R.

41(A)(1)(a) is a ‘substantial right,’ in that it is a right that ‘a rule of procedure’ entitles her ‘to

enforce or protect,’ as stated in R.C. 2505.02(A)(1).”). See also Nixon v. Quality Mold, Inc. 9th

Dist. Summit No. 24314, 2008-Ohio-6618, ¶ 4 (citing Keller with approval). However, Mr.

Dillard’s argument fails to account for the distinctions between Civ.R. 41(A)(1)(a) and Civ.R.

41(A)(2). Civ.R. 41(A)(1)(a) permits “a plaintiff, without order of court, [to] dismiss all claims

asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time

before the commencement of trial unless a counterclaim which cannot remain pending for

independent adjudication by the court has been served by that defendant[.]” In other words,

Civ.R. 41(A)(1)(a) gives, subject to some limitation, the plaintiff the procedural right to dismiss

his or her complaint. See Keller at ¶ 17; Nixon at ¶ 4.

       {¶9}    By contrast, Civ.R. 41(A)(2) provides that “a claim shall not be dismissed at the

plaintiff’s instance except upon order of the court and upon such terms and conditions as the
                                                    4


court deems proper.” Unlike Civ.R. 41(A)(1)(a), “Civ.R. 41(A)(2) bestows no right or power of

decision upon the claimant.” Robinson v. B.O.C. Group, Gen. Motors Corp., 81 Ohio St.3d 361,

370 (1998). Instead “Civ.R. 41(A)(2) * * * forces a judicial determination as to the propriety of
                                            2
the dismissal prior to its effectuation.”       Id. at 371. Thus, we conclude that the trial court’s

denial of Mr. Dillard’s Civ.R. 41(A)(2) motion to dismiss does not affect a substantial right as it

is defined in R.C. 2505.02(A)(1) and, therefore, is not a final, appealable order under R.C.

2505.02(B)(1)-(2).

R.C. 2505.02(B)(4)

       {¶10} Mr. Dillard also suggests, without developing an argument on this point, that the

trial court’s denial of his motion for dismissal is a final, appealable order pursuant to R.C.

2505.02(B)(4). R.C. 2505.02(B)(4) provides that

       [a]n order is a final order that may be reviewed, affirmed, modified, or reversed,
       with or without retrial, when it is * * * [a]n order that grants or denies a
       provisional remedy and to which both of the following apply:

       (a) The order in effect determines the action with respect to the provisional
       remedy and prevents a judgment in the action in favor of the appealing party with
       respect to the provisional remedy.

       (b) The appealing party would not be afforded a meaningful or effective remedy
       by an appeal following final judgment as to all proceedings, issues, claims, and
       parties in the action.

A provisional remedy is

       a proceeding ancillary to an action, including, but not limited to, a proceeding for
       a preliminary injunction, attachment, discovery of privileged matter, suppression
       of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the
       Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised


       2
           Although Mr. Dillard initially argues that Civ.R. 41(A)(1)(a) and (A)(2) provide
equivalent rights to dismiss, he later recognizes the distinction between them when arguing that
the trial court could have granted his motion despite the prohibition in R.C. 4123.512(D) of an
employee dismissing an employer’s appeal without the employer’s consent. Because we dismiss
this appeal for lack of jurisdiction, we express no opinion on that argument.
                                                5


       Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the
       Revised Code.

R.C. 2505.02(A)(3). Although ancillary is not defined, the Supreme Court has held that an

ancillary proceeding is “one that is attendant upon or aids another proceeding.”          (Internal

quotations and citations omitted.) Community First Bank & Trust v. Dafoe, 108 Ohio St.3d 472,

2006-Ohio-1503, ¶ 24.

       {¶11} Given the Supreme Court’s definition of an ancillary proceeding, it is difficult to

see how a motion to dismiss would qualify. It is not an equitable remedy that is its own special

proceeding like a preliminary injunction. See id. at ¶ 30. It does not aid the principal proceeding

like the appointment of a receiver or a forced-medication order to restore a defendant’s

competency. See id. at ¶ 25. Instead, it brings the proceedings to a halt, much like a stay. See

id. at ¶ 31. However, that is precisely why the granting or denial of a stay is not a final,

appealable order: halting proceedings does not further the main action. See id. See also Novak v.

Studebaker, 9th Dist. Summit No. 24615, 2009-Ohio-5337, ¶ 12, citing Dafoe at ¶ 28-31 (The

denial of a stay is not a final, appealable order.). Thus, because a motion to dismiss does not

further the principal proceedings and is not a separate proceeding ancillary to the worker’s

compensation appeal similar to a preliminary injunction, we conclude that it is not a provisional

remedy as defined by R.C. 2505.02(A)(3).3 Accordingly, the denial of Mr. Dillard’s motion for

dismissal pursuant to Civ.R. 41(A)(2) is not a final, appealable order under R.C. 2505.02(B)(4).




       3
          We note that ATD argues that, even assuming Civ.R. 41(A)(2) was a provisional
remedy, Mr. Dillard could not demonstrate that R.C. 2505.02(B)(4)(b) is satisfied in this case.
See Ibeto Petrochemical Industries Ltd. v. M/T Beffen, 475 F.3d 56, 62 (2d Cir.2007)
(concluding that the denial of a motion to dismiss made pursuant to the Federal Rule equivalent
of Civ.R. 41(A)(2) is effectively reviewable following a final judgment). Regardless, we do not
reach this issue.
                                                   6


                                                III.

       {¶12} In light of the foregoing, Mr. Dillard’s appeal is dismissed.

                                                                               Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT


WHITMORE, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

ANGELIQUE M. HARTZELL, Attorney at Law, for Appellant.

FRANK MAMANA, Assistant Attorney General, for Appellee.

THOMAS P. MAROTTA and MICHAEL S. LEWIS, Attorneys at Law, for Appellee.
