[Cite as State ex rel. Belle Tire Distribs, Inc. v. Indus. Comm., 2016-Ohio-7869.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT



State of Ohio ex rel.                                    :
Belle Tire Distributors, Inc.,
                                                         :
                 Relator,
                                                         :
v.                                                                            No. 16AP-92
                                                         :
Industrial Commission of Ohio and                                    (REGULAR CALENDAR)
Herbert Melroy c/o Judy Melroy,                          :

                 Respondents.                            :



                                          D E C I S I O N

                                    Rendered on November 22, 2016


                 Licata Law Group, and David J. Kovach, for relator.

                 Michael DeWine, Attorney General, and Eric J. Tarbox, for
                 respondent Industrial Commission of Ohio.

                 Law Office of Megan E. Burke, LLC, and Megan E. Burke,
                 for respondent Judy Melroy.

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION

SADLER, J.
        {¶ 1} Relator, Belle Tire Distributers, Inc., commenced this original action
requesting a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order exercising its continuing jurisdiction to allow a death
benefits claim of Judy Melroy, the surviving spouse of a fatally injured worker.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued the appended decision,
No. 16AP-92                                                                          2


including findings of fact and conclusions of law. The magistrate determined that
relator had a plain and adequate remedy at law by filing an appeal pursuant to R.C.
4123.512. As a result, the magistrate recommended that this court grant claimant's
motion to dismiss the requested writ of mandamus. For the following reasons, we
overrule the objection and dismiss the requested writ.
I. FACTS AND PROCEDURAL HISTORY
      {¶ 3} None of the parties have filed objections to the magistrate's findings of
fact, and following an independent review of the record, we adopt those findings as our
own. As more fully set forth in the magistrate's decision, on the date of his death,
Herbert Melroy was employed by relator. His surviving spouse, Judy Melroy, filed a
claim for death benefits with the Ohio Bureau of Workers' Compensation. The claim
was initially rejected as not work related, but after several appeals and requests for
reconsideration, the commission exercised its continuing jurisdiction to reconsider the
claim due to a clear mistake in fact regarding how the decedent worker died and then
allowed the claim on its merits.
      {¶ 4} On February 5, 2016, relator filed a mandamus complaint with this court,
alleging that the commission abused its discretion in exercising its continuing
jurisdiction and allowing the claim. Claimant filed a motion to dismiss on March 3,
2016 arguing that, pursuant to the Supreme Court of Ohio's decision in State ex rel.
Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, and this court's
decision in State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist. No. 14AP-
430, 2015-Ohio-3249, relator had a plain and adequate remedy at law in an R.C.
4123.512 appeal.
      {¶ 5} In its brief in opposition to relator's motion to dismiss, claimant cited
State ex rel. Saunders v. Metal Container Corp., 52 Ohio St.3d 85, 86 (1990), for the
proposition that mandamus is the proper means to challenge the propriety of the
commission's exercise of continuing jurisdiction. According to claimant, the commission
is not "[i]nsulate[d]" from a mandamus challenge by entering a single order that
includes both the determination of continuing jurisdiction and the determination of the
right to participate.   (Relator's Brief in Opp. to Mot. to Dismiss at 6.)    Claimant
contended that Alhamarshah is distinguishable as it did not involve continuing
No. 16AP-92                                                                           3


jurisdiction, that Johnson was incorrectly decided, and that an appeal did not afford
relator an adequate remedy.
      {¶ 6} The magistrate determined that the Supreme Court's decision in
Alhamarshah applied and that relator was not entitled to relief in mandamus because
an adequate remedy at law exists by way of an appeal under R.C. 4123.512. In doing so,
the magistrate discussed the Johnson court's finding that the commission's decision to
exercise its continuing jurisdiction was essential to the ultimate determination that
denied the claimant's participation in the workers' compensation system, and, therefore,
mandamus relief was inappropriate as an adequate remedy in the ordinary course of law
because there existed an appeal under R.C. 4123.512. The magistrate also discussed
State ex rel. Black v. CVS Pharmacy, Inc., 10th Dist. No. 15AP-120, 2015-Ohio-4868,
which addressed the implication of the Saunders decision after Alhamarshah.
Ultimately, finding this case akin to Johnson, the magistrate recommended that the
court grant claimant's motion and dismiss the action.
II. OBJECTION
      {¶ 7} Relator sets forth the following objection:
              Because It Does Not Afford A Remedy By Which Belle Tire
              Can Challenge The Exercise Of Continuing Jurisdiction By
              The Commission, R.C. 4123.512 Is Not An Adequate Remedy
              At Law Sufficient To Negate This Court's Mandamus
              Jurisdiction.

III. DISCUSSION
      {¶ 8} Relator's objection sets forth the same argument made to and addressed
by the magistrate. We conclude that the magistrate correctly reasoned that Johnson is
directly on point and determines the issues here, that Alhamarshah applies, and that
relator has an adequate remedy at law in an R.C. 4123.512 appeal. Relator's assertion
that Johnson was decided incorrectly and associated request for en banc consideration
is without merit. Therefore, for the reasons set forth in the magistrate's analysis, we
overrule relator's objection. State ex rel. Schottenstein Stores Corp. v. Indus. Comm.,
10th Dist. No. 07AP-1066, 2009-Ohio-2142, ¶ 4.
No. 16AP-92                                                                            4


IV. CONCLUSION
      {¶ 9} Following review of the magistrate's decision, an independent review of
the record, and due consideration of relator's objection, we find the magistrate properly
determined the facts and applied the appropriate law.         Therefore, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law.
In accordance with the magistrate's decision, the requested writ of mandamus is
dismissed.
                                                                   Objection overruled;
                                                          writ of mandamus dismissed.

                           BROWN and KLATT, JJ., concur.
                                ________________
No. 16AP-92                                                                               5


                                      APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


State of Ohio ex rel.                          :
Belle Tire Distributors, Inc.,
                                               :
              Relator,
                                               :
v.                                                                 No. 16AP-92
                                               :
Industrial Commission of Ohio                                  (REGULAR CALENDAR)
and Herbert Melroy c/o Judy Melroy,            :

              Respondents.                     :



                          MAGISTRATE'S DECISION

                                  Rendered on April 25, 2016


              Licata & Associates Co., L.P.A., and David J. Kovach, for
              relator.

              Michael DeWine, Attorney General, and B. Alexander
              Kennedy, for respondent Industrial Commission of Ohio.

              Law Office of Megan E. Burke, LLC, and Megan E. Burke, for
              respondent Judy Melroy.


                                  IN MANDAMUS
                         ON CLAIMANT'S MOTION TO DISMISS

       {¶ 10} Relator, Belle Tire Distributors, Inc. ("Belle Tire"), has filed this original
action requesting that this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order wherein the
commission exercised its continuing jurisdiction as requested by respondent Judy
No. 16AP-92                                                                            6


Melroy ("claimant"), as the widow of Herbert Melroy ("decedent"), and allowed
decedent's claim.
Findings of Fact:
      {¶ 11} 1. The following facts come directly from relator's mandamus complaint:
              [One] Relator, Belle Tire Distributors, Inc. is a compliant
              state-fund employer of Ohio's workers' compensation
              system.

              [Two] Relator employed Respondent Herbert Melroy
              ("Decedent") on November 19, 2014, when he died.

              [Three] Judy Melroy ("Claimant") is the surviving spouse of
              Decedent.

              [Four] Claimant filed a death claim with the Ohio Bureau of
              Workers' Compensation ("BWC") on January 27, 2015.

              [Five] The BWC assigned the claim number 14-867936, and
              denied the claim because the death was not work related.

              [Six] Claimant appealed the denial of her claim to
              Respondent Industrial Commission of Ohio ("Commission").

              [Seven] A district hearing officer ("DHO") of the Commission
              vacated the BWC order and allowed the claim.

              [Eight] Relator timely appealed the DHO order, and a staff
              hearing officer ("SHO") vacated the DHO order and
              disallowed the claim in its entirety, finding that Claimant
              had not met her burden of proving that Decedent died in the
              course of and arising out of his employment activities.

              [Nine] Claimant appealed the SHO order to the Commission,
              which refused to hear her appeal.

              [Ten] Claimant sought reconsideration of the SHO order,
              asserting that it was based on clear mistakes of fact and law.

              [Eleven] In an order mailed on January 9, 2016, the
              Commission concluded that it had continuing jurisdiction to
              reconsider the SHO order because the determination of the
              SHO that Decedent died "while in the process of beginning"
              to change a super-sized semi-truck tire was a clear mistake of
              fact.
No. 16AP-92                                                                                7


                [Twelve] Having exercised its continuing jurisdiction to
                reconsider the claim, the Commission then allowed the claim
                on its merits.

          {¶ 12} 2. On February 5, 2016, relator filed this mandamus complaint alleging
that the commission abused its discretion when it exercised its continuing jurisdiction
and allowed the claim.
          {¶ 13} 3. On March 3, 2016, claimant filed a motion to dismiss arguing that
relator had a plain and adequate remedy at law by filing an appeal pursuant to R.C.
4123.512.      Claimant cited the Supreme Court of Ohio's decision in State ex rel.
Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-Ohio-1357, as well as this
court's decision in State ex rel. Johnson v. OSU Cancer Research Hosp., 10th Dist. No.
14AP-430, 2015-Ohio-3249.
          {¶ 14} 4. On March 7, 2016, relator filed a brief in opposition to the motion to
dismiss arguing that neither the decision in Alhamarshah nor the decision in Johnson
addressed the following passage from this court's decision in State ex rel. Saunders v.
Metal Container Corp., 52 Ohio St.3d 85 (1990):
                Appellants also challenge appellee's resort to mandamus,
                contending that the commission's February 2, 1987 order
                could have been appealed under R.C. 4123.519. Appellants,
                however, misdefine the issue before us. The relevant
                question here is not one of appellee's right to participate in
                the State Insurance Fund for a "back" injury but is instead
                whether a mistake sufficient to invoke the continuing
                jurisdiction provisions of R.C. 4123.52 existed. We find this
                latter question to be the proper subject matter for a writ of
                mandamus. State, ex rel. Highway Co., v. Indus. Comm.
                (1980), 70 Ohio App.2d 41.

Id. at 86.

          {¶ 15} 5. The matter is currently before the magistrate on claimant's motion to
dismiss.
Conclusions of Law:
          {¶ 16} Finding that the court's decision in Alhamarshah does apply here, it is this
magistrate's decision that this court should grant claimant's motion and dismiss this
action.
No. 16AP-92                                                                              8


      {¶ 17} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint,
the court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
      {¶ 18} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that
relator can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community
Tenants Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is
not subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a
legal duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim
being asserted against it, and it appears that relator might prove some set of facts
entitling him to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn.,
72 Ohio St.3d 94 (1995). For the following reasons, respondent's motion should be
granted and relator's complaint should be dismissed.
      {¶ 19} Recently, the Supreme Court decided Alhamarshah. In that case, Mustafa
Alhamarshah alleged that he sustained a work-related injury while working as a laborer
for Mohamed Salem, d.b.a. Ballmohd, L.L.C. ("Salem"). The Ohio Bureau of Workers'
Compensation ("BWC") allowed the claim against Salem as the employer and ordered
the payment of medical benefits and temporary total disability compensation. The order
informed the parties that the decision would become final unless a written appeal was
received within 14 days and further advised the parties to contact "Jolene M" at the
BWC's Columbus Service Office with any questions. Id. at ¶ 4.
      {¶ 20} With the help of a friend, Salem telephoned Jolene about filing an appeal.
Salem asserted that there was no employer-employee relationship. The documents
faxed to the BWC failed to include the claim number or the date of the order being
appealed. Upon receipt, the words "construe as appeal" were hand-written on the cover
page and forwarded to the appeals section of the commission. Id. at ¶ 5.
      {¶ 21} Ultimately, the commission concluded that Salem's appeal substantially
complied with the requirements of R.C. 4123.511(F) and further found that there was no
No. 16AP-92                                                                           9


evidence that Alhamarshah had been prejudiced by any omission in the notice of appeal.
The commission then disallowed the claim on the merits, finding that Alhamarshah was
not an employee of Salem and the commission affirmed that order.
      {¶ 22} Alhamarshah appealed to the Franklin County Court of Common Pleas
pursuant to R.C. 4123.512 and filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals, alleging that the commission's order determining that Salem's
administrative appeal was valid was an abuse of discretion and contrary to law.
Ultimately, the Supreme Court determined that Alhamarshah was not entitled to relief
in mandamus because he had an adequate remedy in the ordinary course of law by way
of appeal under R.C. 4123.512, stating:
              Once the commission has issued a final order determining
              the claimant's entitlement to participate in the workers'
              compensation fund, any party may appeal the order, except
              for decisions as to the extent of disability, to the court of
              common pleas pursuant to R.C. 4123.512. R.C. 4123.511(E)
              and 4123.512(A); State ex rel. Liposchak v. Indus. Comm.,
              90 Ohio St.3d 276, 278-279, 2000 Ohio 73, 737 N.E.2d 519
              (2000). This court has held that decisions determining an
              employee's right to participate in the workers' compensation
              system because of a specific injury or occupational disease
              are appealable to the court of common pleas. Felty v. AT & T
              Technologies, Inc., 65 Ohio St.3d 234, 1992 Ohio 60, 602
              N.E.2d 1141 (1992), paragraph one of the syllabus; Afrates v.
              Lorain, 63 Ohio St.3d 22, 26, 584 N.E.2d 1175 (1992).

              The lack of an adequate remedy in the ordinary course of the
              law is a necessary prerequisite for relief in mandamus. State
              ex rel. Consolidation Coal Co. v. Indus. Comm., 18 Ohio St.
              3d 281, 284, 18 Ohio B. 333, 480 N.E.2d 807 (1985), citing
              State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88, 218
              N.E.2d 428 (1966). When the relator has a plain and
              adequate remedy at law by way of appeal, courts lack
              authority to exercise jurisdictional discretion and must deny
              the writ, regardless of whether the relator used the remedy.
              Id.; State ex rel. Davet v. Sutula, 8th Dist. Cuyahoga No.
              96548, 2011-Ohio-2803, 2011 WL 2409641, ¶ 10. This is a
              threshold question that we must consider even when the
              court of appeals has not addressed the issue. State ex rel.
              Woodbury v. Spitler, 40 Ohio St.2d 1, 3, 318 N.E.2d 165
              (1974).
No. 16AP-92                                                                           10


                  In this case, the commission decided that the documentation
                  submitted on behalf of the purported employer substantially
                  complied with the statutory requirements for a notice of an
                  appeal of the bureau's initial order. This decision conferred
                  jurisdiction on the commission to proceed to consider the
                  merits of the purported employer's appeal. The commission's
                  exercise of jurisdiction resulted in a decision denying the
                  claimant's right to participate in the workers' compensation
                  system. Consequently, the decision allowing the appeal to
                  proceed was essential to the ultimate determination that
                  denied the claimant's participation in the workers'
                  compensation system. As such, the commission's decision to
                  accept the appeal as valid was appealable pursuant to R.C.
                  4123.512. See Consolidation Coal Co. at 284-285, 480
                  N.E.2d 807.

Id. at ¶ 10-12.

       {¶ 23} Recently, in Johnson, this court addressed the applicability of the recent
Supreme Court decision in Alhamarshah. Eleanorene Johnson suffered an industrial
injury in 2010 and her claim was allowed for the following physical condition: sprain
lumbosacral. On August 23, 2013, Johnson filed a C-86 motion requesting that her
claim be additionally allowed for the following psychological condition: major
depression, single episode, non-psychotic, severe. A district hearing officer ("DHO")
disallowed Johnson's request. The matter came before a staff hearing officer ("SHO") on
October 18, 2013. The SHO granted Johnson's request and additionally allowed her
claim to include the requested psychological condition. OSU attempted to appeal the
SHO's order, but the commission refused the appeal.
       {¶ 24} OSU then filed a request for reconsideration with the commission. On
January 9, 2014, the commission issued an order vacating the SHO's order and setting
the matter for a hearing. The commission concluded that the SHO's order contained a
clear mistake of law, as it failed to find that the requested psychological condition was
causally related to the allowed physical condition. The commission accordingly granted
OSU's request for reconsideration, and denied Johnson's request for the additional
allowance.
       {¶ 25} Johnson filed a mandamus action in this court asserting that the
commission abused its discretion when it granted OSU's request for reconsideration and
No. 16AP-92                                                                            11


asked that the commission be ordered to reinstate the SHO's order which allowed her
claim for the psychological condition.
       {¶ 26} OSU argued that this court did not have jurisdiction to hear the matter
asserting that it was a right to participate action and that Johnson had an adequate
remedy at law.    As OSU asserted, if this court found the commission abused its
discretion when it determined the SHO's order contained a clear mistake of law,
Johnson's claim would be additionally allowed for a psychological condition and OSU
would have to challenge that allowance in common pleas court.
       {¶ 27} This court's magistrate found this court did have jurisdiction finding that
the commission's determination that it had continuing jurisdiction was reviewable here
in mandamus and could not be challenged elsewhere. Thereafter, the magistrate found
that the commission did not abuse its discretion when it exercised its continuing
jurisdiction.
       {¶ 28} OSU filed an objection to the magistrate's decision and argued that,
pursuant to the Supreme Court's recent decision in Alhamarshah, this court should find
that mandamus relief was inappropriate because Johnson had an adequate remedy at
law.   Finding that the commission's decision to exercise its continuing jurisdiction
resulted in a decision which denied Johnson the right to participate in the workers'
compensation system, this court found that the commission's decision was "essential to
the ultimate determination that denied [Johnson's] participation in the workers'
compensation system," and mandamus relief was inappropriate as Johnson had an
adequate remedy in the ordinary course of law by way of an appeal under R.C. 4123.512.
Id. at ¶ 12.
       {¶ 29} More recently, this court addressed the implication of the Saunders
decision (1990) after Alhamarshah (2015). In State ex rel. Black v. CVS Pharmacy,
Inc., 10th Dist. No. 15AP-120, 2015-Ohio-4868, Sharon Black sought a writ of
mandamus ordering the commission to vacate its order exercising its continuing
jurisdiction and finding that her claim should not be allowed for disc herniation at T12-
L1 when she had already filed a notice of appeal from the disallowance of other
conditions pursuant to R.C. 4123.512, and ordering the commission to reinstate its order
allowing her claim for disc herniation at T12-L1. The magistrate issued a decision
No. 16AP-92                                                                         12


applying Alhamarshah and finding that Black had an adequate remedy at law by way of
an appeal to the common pleas court. Black filed an objection arguing that mandamus
was the appropriate remedy citing Saunders.         Black argued that, because she had
already appealed the disallowance of other claims to the common pleas court, the
commission did not have jurisdiction to invoke its continuing jurisdiction to deny her
claim for other conditions.
      {¶ 30} In discussing the applicability of Saunders following the Supreme Court's
decision in Alhamarshah, this court stated:
              In Saunders, the commission's district hearing officer
              ("DHO") issued an order allowing a condition described as
              "back." At the time, R.C. 4121.36(B) required the order
              allowing a condition to contain a "description of the part of
              the body and nature of the disability recognized in the
              claim." The commission subsequently attempted to correct
              the error by amending the part of the body affected from
              "back" to "lumbosacral" and "lumbar spine."

              The Supreme Court noted that a statutorily defective
              allowance, such as the one issued by the DHO, constituted a
              "mistake," which permitted the commission, pursuant to
              R.C. 4123.52, to invoke its continuing jurisdiction to correct.
              It held, however, that the commission could have simply
              amended the allowed condition to reflect "back sprain," but,
              instead, the commission went too far in narrowing the
              named body part from "back" to "lumbosacral" and "lumbar
              spine." The Supreme Court held that, although the
              commission was permitted to invoke continuing jurisdiction
              to correct the mistake, the continuing jurisdiction did not
              allow the extent of the correction attempted here.

              Relevant here, the Supreme Court in Saunders also held that
              mandamus was the proper remedy to address the
              commission's improper extension of continuing jurisdiction.
              The Supreme Court noted that "[t]he relevant question here
              is not one of appellee's right to participate * * * for a 'back'
              injury but is instead whether a mistake sufficient to invoke
              the continuing jurisdiction provisions of R.C. 4123.52
              existed. We find the latter question to be the proper subject
              matter for a writ of mandamus." Id. at 86.

              Relator suggests that Saunders controls. We disagree. The
              question before us now is not whether a mistake sufficient to
              invoke the continuing jurisdiction provisions of R.C. 4123.52
No. 16AP-92                                                                          13


              existed. The crux of relator's argument here, however, is that
              the institution of an appeal of the disallowance of other
              claims, pursuant to R.C. 4123.519, deprived the commission
              of jurisdiction to even consider whether there was a mistake
              sufficient to invoke it's continuing jurisdiction, pursuant to
              R.C. 4123.52, regarding the disc herniation at T12-L1 claim.
              The issue here is a precursor to the issue of whether a
              mistake existed sufficient to invoke the continuing
              jurisdiction provisions of R.C. 4123.52.

              Relator argues that the magistrate's reliance on State ex rel.
              Alhamarshah v. Indus. Comm., 142 Ohio St.3d 524, 2015-
              Ohio-1357, 33 N.E.3d 43, is misplaced. In Alhamarshah, the
              commission accepted documentation from the employer and
              determined that it substantially complied with the statutory
              requirements for a notice of an appeal of the Bureau of
              Worker's Compensation's initial allowance of a claim. The
              Supreme Court of Ohio noted that "[t]his decision conferred
              jurisdiction on the commission to proceed to consider the
              merits of the purported employer's appeal" and that such
              exercise of jurisdiction "resulted in a decision denying the
              claimant's right to participate in the worker's compensation
              system." The Supreme Court held that "[c]onsequently, the
              decision allowing the appeal to proceed was essential to the
              ultimate determination that denied the claimant's
              participation in the worker's compensation system. As such,
              the commission's decision to accept the appeal as valid was
              appealable pursuant to R.C. 4123.512." (Emphasis added.)
              Id. at ¶ 10-12. Likewise, here, the commission's decision to
              proceed, while the appeal of other disallowed claims was
              pending in the common pleas court, was essential to the
              ultimate determination that denied relator's participation in
              the workers' compensation system for the disc herniation at
              T12-L1.

Black, at ¶ 4-8.

       {¶ 31} Here, as in Johnson, the commission exercised its continuing jurisdiction,
vacated the order of the SHO, concluded that the SHO's order contained a clear mistake
of fact, and granted claimant the right to participate in the workers' compensation
system finding that the commission's decision was essential to the ultimate
determination that granted claimant the right to participate in the workers'
compensation system, the magistrate finds that the commission's decision to exercise its
No. 16AP-92                                                                         14


continuing jurisdiction is appealable to the court of common pleas pursuant to R.C.
4123.512.
      {¶ 32} Based on the foregoing, it is this magistrate's decision that claimant has
demonstrated that relator has an adequate remedy at law by way of an appeal to the
common pleas court under R.C. 4123.512 and this court should grant claimant's motion
to dismiss.
                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
