[Cite as Clemons v. Ohio Bur. of Workers' Comp., 2014-Ohio-1259.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

Cornelius J. Clemons,                              :

                Plaintiff-Appellant,               :

v.                                                 :                   No. 13AP-691
                                                                     (C.P.C. No. 13CV-5646)
Ohio Bureau of Workers' Compensation               :
et al.,                                                             (REGULAR CALENDAR)
                                                   :
                Defendants-Appellees.
                                                   :


                                        D E C I S I O N

                                    Rendered on March 27, 2014


                Cornelius J. Clemons, pro se.

                Michael DeWine, Attorney General, and Patsy A. Thomas, for
                appellees Ohio Bureau of Workers' Compensation, Industrial
                Commission of Ohio, and, acting in their official capacities,
                Stephen Buehrer, Robin K., Matthew Tyack, Sandra Rolletta,
                Karen Sampson, D. Greim, J. Stavridis, Deborah Charney, C.
                Albrecht, David Packer, David Binkovitz, Jon Grandon,
                Felicity Hillmer and Lori Ransom.

                Michael DeWine, Attorney General, and Mia Meucci Yanika,
                for appellees The Ohio State University Occupational
                Medicine West and Dr. Eric Schaub.

                  APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Plaintiff-appellant, Cornelius J. Clemons, appeals from a judgment of the
Franklin County Court of Common Pleas dismissing, for the lack of subject-matter
jurisdiction, appellant's complaint against the State of Ohio and several state employees.
For the reasons that follow, we affirm.
No. 13AP-691                                                                                         2

A. Facts and Procedural History
        {¶ 2} On May 21, 2013, appellant filed a 28-page complaint against appellees
seeking both compensatory and punitive damages under several common law theories
including breach of contract, breach of fiduciary duty, and                 intentional infliction of
emotional distress. The "Preliminary Statements" in the complaint read, in relevant part,
as follows:
                In this action plaintiff requests the redress for harm done his
                person and etc.; by joint Defendants Ohio Bureau of
                Workers['] Compensation/Ohio Industrial Commission and
                their representatives in their official capacities. * * * This
                action also seeks redress for harm done to the Plaintiff by
                severally liable Defendants OSU Occupational Medicine West
                Treatment Center and Medical Practitioner in his official
                capacity Dr. Eric Schaub.

In addition to the Bureau of Workers' Compensation ("BWC"), the Industrial Commission
of Ohio ("commission"), The Ohio State University-West Treatment Center ("OSU"), and
Dr. Schaub, the title of the complaint names several individuals as "Agents in their Official
Capacities."1
        {¶ 3} The body of the complaint contains a detailed history of appellant's workers'
compensation claim filed on December 23, 2010. Appellant filed claim No. 10-858586
after he sustained injuries in an October 1, 2010 "T-bone collision accident" while
employed as a "full-time clamp-lift operator for Kenco Logistics." (Complaint, 1-2.) The
complaint chronicles appellant's effort to obtain workers' compensation benefits
including allowances of certain medical conditions, compensation for temporary total and
permanent partial disability, approval of various forms of medical treatment, and
payment of his medical expenses. The complaint describes the rulings made by the BWC
and ICO regarding his benefit applications, the efforts he made to administratively appeal
adverse rulings, and the outcome of his appeals. The complaint does not indicate whether
appellant ever filed an action, pursuant to R.C. 4123.512, seeking court review of any ICO
or BWC ruling.



1 Specifically, Stephen Buehrer and Robin K., are identified as BWC agents; Mathew Tyack, Sandra Roletta,

Karen Sampson, D. Greim, J. Stavridis, Deborah Charney, C. Albrecht, David Packer, Jon Grandon, Felicity
Hillmer, and Lori Ransom are identified as commission agents.
No. 13AP-691                                                                          3

      {¶ 4} On June 21, 2013, BWC and ICO, along with their respective "agents," filed
a joint motion to dismiss the complaint pursuant to Civ.R. 12(B)(1) and (6). On that same
date appellees, OSU and Dr. Schaub, filed a motion to dismiss the complaint pursuant to
Civ.R. 12(B)(1). In a decision and judgment entry dated August 5, 2013, the trial court
granted appellees' motions and dismissed the case, with prejudice. Appellant timely
appeals to this court from the judgment of the Franklin County Court of Common Pleas.
 B. Assignments of Error
               [I.] Matter of Law: Assignment of Error in the Trial Court
               Judge's admonishment of dismissal of all claims upon
               premise of Court of Claims subject matter jurisdiction.

               [II.] Matter of Law: Assignment of Error in the Trial Court
               Judge's prejudice accompaniment with dismissal of claims.

               [III.] Matter of Fact: Assignment of Error in Trial Court's
               apprehension of recording the Appellant's claims as vehicles
               of challenging requested denial of workers' compensation
               benefits).

               [IV.] Matter of Law: Assignment of Error in the Trial Court
               Judge's dismissal of Breach of Contract claim against Bureau
               of Workers Compensation and Ohio Industrial Commission
               for failure to state claim upon which relief may be granted in
               assertion that the claim Breach of Contract is not a proper
               vehicle.

               [V.] Mater [sic] of Law: Assignment of Error in the Trial Court
               Judge's dismissal of Breach of Fiduciary Duty claim against
               Bureau of Workers Compensation and Ohio Industrial
               Commission for failure to state claim upon which relief may
               be granted in assertion that the claim Breach of Fiduciary
               Duty is not a proper vehicle.

               [VI.] Matter of Law: Assignment of Error in the Trial Court
               Judge's dismissal of Intentional/Reckless and Wanton
               Infliction of Severe Emotional Distress claim against Bureau
               of Workers Compensation and Ohio Industrial Commission in
               entirety with all claims for failure to state claim upon which
               relief may be granted.

               [VII.] Matter of Law: Assignment of Error in the Trial Court
               Judge's dismissal of Breach of Fiduciary Duty claim against
               OSU Occupational West and Dr. Eric Schaub in official
No. 13AP-691                                                                                4

               capacity in entirety with all claims for failure to state claim
               upon which relief may be granted.

C. Standard of Review
       {¶ 5} In ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter
jurisdiction, the trial court determines whether the claim raises any action cognizable in
that court. Brown v. Ohio Tax Commr., 10th Dist. No.11AP-349, 2012-Ohio-5768, ¶ 14;
Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-550, 2011-Ohio-713, ¶ 5.
Subject-matter jurisdiction involves " 'a court's power to hear and decide a case on the
merits and does not relate to the rights of the parties.' " Id., quoting Vedder v.
Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. We apply a de novo
standard when we review a trial court's ruling on a Civ.R. 12(B)(1) motion to dismiss.
Robinson at ¶ 5, citing Hudson v. Petrosurance, 10th Dist. No. 08AP-1030, 2009-Ohio-
4307, ¶ 12. A dismissal for the lack of jurisdiction over the person or the subject matter
operates as a failure otherwise than on the merits. Civ.R. 41(B)(4).
       {¶ 6} A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim is
procedural and tests the sufficiency of the complaint. Volbers–Klarich v. Middletown
Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11, citing Assn. for Defense of
Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989); State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). Dismissal for
failure to state a claim is proper if, after all factual allegations are presumed to be true and
all reasonable inferences are made in favor of the non-moving party, it appears beyond
doubt from the complaint that the plaintiff could prove no set of facts warranting the
requested relief. State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5;
O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. We
review the dismissal of a complaint pursuant to Civ.R. 12(B)(6) under a de novo standard.
Woods v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689, 2012-Ohio-3139, ¶ 9. The
Supreme Court of Ohio has held that a dismissal for failure to state a claim upon which
relief can be granted operates as an adjudication on the merits. State ex rel. Arcadia Acres
v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176, ¶ 15; George v.
State, 10th Dist. No. 10AP-4, 2010-Ohio-5262, ¶ 14. "As a result, res judicata bars refiling
the claim." Id.
No. 13AP-691                                                                             5

D. Legal Analysis
1. Jurisdiction of Claims against the State of Ohio
       {¶ 7} Courts of common pleas have jurisdiction over civil disputes with more than
$500 in controversy. Cullinan v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-
208, 2012-Ohio-4836, ¶ 6. "The Court of Claims, on the other hand, is a court of limited
jurisdiction having exclusive, original jurisdiction over claims brought against the state as
a result of the state's waiver of immunity under R.C. 2743.02." Id. The Court of Claims
has exclusive, original jurisdiction over civil actions filed against the state for money
damages sounding in law. Id.
       {¶ 8}   There is no question that both the BWC and the commission are state
agencies as R.C. 2743.01(A) defines the term. See R.C. 4123.31. See also Ohio Bur. of
Workers' Comp. v. Salkin, 8th Dist. No. 96173, 2011-Ohio-4260; Sheridan v. Metro. Life
Ins. Co., 182 Ohio App.3d 107, 2009-Ohio-1808, ¶ 13 (10th Dist.); Jenkins v. Admr. of the
Bur. of Workers' Comp., 8th Dist. No. 80445, 2002-Ohio-3268, ¶ 21. There is also no
doubt that OSU is an instrumentality of the State of Ohio amenable to suit in the Court of
Claims. See Thacker v. Bd. of Trustees of the Ohio State Univ., 35 Ohio St.2d 49 (1973);
Landes v. Ohio State Univ. Hosps., 10th Dist. No. 97API05-739 (Nov. 20, 1997).
Appellant's complaint in this case seeks monetary relief from the BWC, the commission,
and OSU under several common law theories. Consequently, the courts of common pleas
do not have jurisdiction to hear and determine the claims appellant has asserted against
the BWC, the commission, and OSU.
       {¶ 9} Furthermore, with respect to the individuals named in appellant's
complaint, R.C. 2743.02 provides, in relevant part:
               (F) A civil action against an officer or employee, as defined in
               section 109.36 of the Revised Code, that alleges that the
               officer's or employee's conduct was manifestly outside the
               scope of the officer's or employee's employment or official
               responsibilities, or that the officer or employee acted with
               malicious purpose, in bad faith, or in a wanton or reckless
               manner shall first be filed against the state in the court of
               claims that has exclusive, original jurisdiction to determine,
               initially, whether the officer or employee is entitled to
               personal immunity under section 9.86 of the Revised Code
               and whether the courts of common pleas have jurisdiction
               over the civil action.
No. 13AP-691                                                                             6


(Emphasis added.)

       {¶ 10} "Pursuant to R.C. 2743.02(F), the Court of Claims has exclusive jurisdiction
to determine whether a state employee is immune from liability under R.C. 9.86."
Rosenshine v. Med. College Hosps., 165 Ohio App.3d 9, 2005-Ohio-5648, ¶ 13 (10th
Dist.). "[C]ourts of common pleas do not have jurisdiction to make R.C. 9.86 immunity
determinations." Id., citing Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d
234, 2004-Ohio-824, syllabus; Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370,
2004-Ohio-1527.
       {¶ 11} "Officer" or "employee" as used in R.C. 9.86 "has the same meaning as in
division (A) of section 109.36 of the Revised Code." R.C. 9.85(A). Under R.C.
109.36(A)(1)(a) an officer or employee of the State is "[a] person who, at the time a cause
of action against the person arises, is serving in an elected or appointed office or position
with the state or is employed by the state." Based upon the allegations of the complaint,
there is no doubt that the individuals named as defendants in the complaint are
individuals who, at the time appellant's cause of action arose, were either serving in an
appointed office or position with the state or were employed by the state. Consequently,
pursuant to R.C. 2743.02(F), appellant's civil action against these particular individuals is
within the exclusive original jurisdiction of the Court of Claims. Rosenshine; Johns;
Theobald.
       {¶ 12} In short, we hold that the trial court did not err when it concluded that it
was without jurisdiction to hear and determine any of the claims asserted against
appellees. Accordingly, appellant's first, second, and third assignments of error are
overruled.
2. Failure to State a Claim
       {¶ 13} Appellant's fourth, fifth, sixth, and seventh assignments of error address the
trial court's determination that the complaint fails to state a claim upon which relief may
be granted. Accordingly, we will consider these assignments of error together.
       {¶ 14} The trial court stated that "claims for breach of contract and breach of
fiduciary duty are not a vehicle in which to challenge the denial" of "workers'
compensation benefits." (Aug. 5, 2013 Decision, 3.) The court further stated that "[t]he
No. 13AP-691                                                                               7

present matter is a prime example of claims that do not exist." (Aug. 5, 2013 Decision, 3.)
Accordingly, the trial court dismissed the complaint, with prejudice, for failure to state a
claim for relief.
       {¶ 15} We do not disagree with the trial court's statement of the law. However, as
noted above, a dismissal for failure to state a claim upon which relief can be granted
operates as an adjudication on the merits. State ex rel. Arcadia Acres; George. Given our
conclusion that the trial court was without jurisdiction to hear and determine appellant's
claims against appellees, the trial court was also without jurisdiction to enter a judgment
on the merits. Nevertheless, we find that any error with respect to the trial court's Civ.R.
12(B)(6) analysis is clearly harmless error in light of the jurisdictional ruling. Accordingly,
appellant's fourth, fifth, sixth, and seventh assignments of error are overruled.
3. Conclusion
       {¶ 16} Having overruled each of appellant's assignments of error, we hereby affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.


                         DORRIAN and LUPER SCHUSTER, JJ., concur.
                                     _________________
