COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67895 CLYDE E. MOORE, JR. : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION WESLEY TRIMBLE, Administrator, : Bureau of Workers' Compensation,: et al : : Defendants-appellees : : and : : MANFREDI MOTOR TRANSIT COMPANY : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION : __AUGUST 15, 1996__ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 257,820 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE MANFREDI MOTOR TRANSIT COMPANY: Harold L. Levey, Esq. Stephen J. Habash, Esq. Levey & Gruhin Jean M. Frazier, Esq. 1468 West 9th Street, #750 Habash, Reasoner & Frazier Cleveland, OH 44113 395 E. Broad Street, Suite 210 Columbus, OH 43215 Lauren K. Kinkopf, Esq. 5311 Leadow Lane Court Elyria, OH 44035 (Appearances cont. on next page) - 2 - APPEARANCES (Continued): FOR DEFENDANTS-APPELLEES BUREAU OF WORKERS' COMPENSATION AND INDUSTRIAL COMMISSION OF OHIO: Betty Montgomery Attorney General of Ohio Joseph M. Saadi, Assistant State Office Bldg., 12th Floor 615 West Superior Avenue Cleveland, OH 44113-1899 - 3 - SARA J. HARPER, J.: Plaintiff-appellant, Clyde E. Moore, Jr. ("Mr. Moore"), appeals from a judgment of the Cuyahoga County Court of Common Pleas which dismissed, with prejudice, his action against his former employer, defendant-appellee, Manfredi Motor Transit Company ("Manfredi"), for failure to prosecute. Mr. Moore seeks a reversal of the trial court's ruling on two grounds: (1) the trial court erred when it denied the motion to dismiss his action pursuant to Civ.R. 41(A); and (2) the trial court's order dismissing his action with prejudice is a nullity because the court lacked jurisdiction once he filed the motion to dismiss pursuant to Civ.R. 41(A). For the following reasons, we reverse. The apposite facts are adduced from the record: Mr. Moore filed a workers' compensation claim with the Industrial Commission of Ohio ("the Commission"). The Commission allowed Mr. Moore's claim for injuries, specifically "contusion of right hand and lower back, contusion of right elbow." Subsequently, Manfredi filed a notice of appeal from the Commission's finding to the Court of Common Pleas of Cuyahoga County pursuant to R.C. 4123.512 (formerly 4123.519). Mr. Moore filed a petition with the Court of Common Pleas of Cuyahoga County pursuant to R.C. 4123.512(D) to determine his right to participate in the Workers' Compensation Fund. The trial court scheduled a case management conference regarding discovery. A date for a settlement was also set by the trial court. - 4 - At the settlement conference, Mr. Moore's counsel informed the trial court that Mr. Moore was incarcerated in Alabama in a federal penitentiary. A date was set for trial, and Manfredi was directed to provide a settlement proposal. Manfredi proffered a settlement proposal; however, Mr. Moore did not respond to the proposal. Subsequently, Mr. Moore filed a Civ.R. 41(A) motion to voluntarily dismiss his action. The trial court held a conference with the parties, and the parties were advised by the court to consider settlement. As a result of the conference, the trial date was re-set. The trial court denied Mr. Moore's motion to voluntarily dismiss his action against Manfredi. On the day of trial, Mr. Moore's counsel informed the trial court that Mr. Moore remained incarcerated in Alabama and counsel would present neither witnesses nor evidence. The next day, the trial court dismissed the case with prejudice for failure to prosecute on the ground that Mr. Moore was not ready to proceed to trial. Mr. Moore timely appeals from the decision of the trial court and raises the following three assignments of error for this court to review: I. WHERE THE CLAIMANT FILES HIS ACTION FOLLOWING AN APPEAL FROM AN INDUSTRIAL COMMISSION ORDER TO THE COMMON PLEAS COURT, PURSUANT TO R.C. 4123.512, THE CLAIMANT MAY INVOKE CIVIL RULE 41(A)(1) WHETHER THE CLAIMANT OR THE EMPLOYER FILED THE NOTICE OF THE APPEAL. - 5 - II. UPON THE FILING OF A NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO CIVIL RULE 41(A)(1), THE TRIAL COURT LOSES JURISDICTION OVER THE ACTION, AND ITS FURTHER ORDERS DISPOSING OF THE ACTION ARE A NULLITY. III. IF THE CLAIMANT MAY NOT INVOKE CIVIL RULE 41(A)(1) WHERE THE EMPLOYER FILES THE NOTICE OF APPEAL, THEN IT IS THE EMPLOYER'S BURDEN TO GO FORWARD WITH THE EVIDENCE AT TRIAL. I. In the first assignment of error, Mr. Moore asserts that the rules of civil procedure are applicable to workers' compensation decisions appealed from the Commission to the court of common pleas. Thus, Mr. Moore submits that he may dismiss his action against Manfredi pursuant to Civ.R. 41(A)(1). On the other hand, Manfredi contends that Mr. Moore, as the claimant in a workers' compensation action, is not permitted to voluntarily dismiss the action pursuant to Civ.R. 41(A)(1). Manfredi argues that if Mr. Moore were permitted to voluntarily dismiss the action, without review from the court, then Manfredi would be denied the opportunity to appeal. Moreover, the legislative intent of R.C. 4123.512, which provides that either the claimant or the employer may appeal an action of the Commission to the court of common pleas, would be defeated as a result of the dismissal. R.C. 4123.512 provides that the claimant or the employer has the right to appeal a decision of the Commission or its staff - 6 - hearing officers to the court of common pleas. R.C. 4123.512(B) sets forth the requirements to properly perfect a notice of appeal. R.C. 4123.512(D) pertains to the jurisdiction of the court of common pleas regarding workers' compensation appeals. The pleadings are to be had in accordance with the rules of civil procedure. R.C. 4123.512(D). Thus, a trial de novo is held on the issue of the claimant's participation or continued participation in the Workers' Compensation Fund. See State ex rel. Federated Department Stores v. Brown (1956), 165 Ohio St. 521, at paragraph two of the syllabus, (construing R.C. 4123.519). R.C. 2505.02 defines final appealable orders; it reads: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment and grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside. Civ.R. 1(C) states, in pertinent part, that the civil rules "to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure *** (7) in all other special statutory proceedings; ***." It is well established that - 7 - the Ohio Civil Rules (with few minor exceptions not here relevant) apply to proceedings filed under R.C. 4123.512. Further, claimant shall *** file a petition *** showing a cause of action to participate or to continue to participate in the fund *** Further, pleadings shall be had in accordance with the Rules of Civil Procedure, provided that service of summons of such petition shall not be required. R.C. 4123.512(D). Price v. Westinghouse Electric Corp. (1982), 70 Ohio St.2d 131. Civ.R. 41(A)(1) permits a plaintiff to voluntarily dismiss his action without order of the court "by filing a notice of dismissal any time before the commencement of trial unless the case involves a counterclaim which cannot be independently adjudicated." Holly v. Osleisk (1988), 40 Ohio App.3d 90, at 92 (a party's notice of voluntary dismissal is effective upon filing); see Herbert Otworth v. Department of Mental Health (Oct. 13, 1992), Franklin App. No. 92 AP-555, unreported. Mr. Moore cites Ross v. Wolfe Envelope Co. (Aug. 1, 1990), Cuyahoga App. No. 57015, unreported, for the proposition that an employee may voluntarily dismiss his or her action relating to workers' compensation appeals pursuant to Civ.R. 41(A)(1). On the other hand, Manfredi counters that Mr. Moore cannot voluntarily dismiss the action because Manfredi filed an appeal from the decision of the Commission to the court of common pleas. As a result of Manfredi's appeal, the trial court retained jurisdiction over the action. - 8 - This court, in David Rogers v. Ford Motor Co., et al (Aug. 18, 1994), Cuyahoga App. No. 66188, unreported, addressed a factual situation similar to the case at bar. Rogers involved a workers' compensation proceeding where the Industrial Commission found that Mr. Rogers, an employee of Ford Motor Co., had a right to participate in the Workers' Compensation Fund and was entitled to benefits. Ford appealed the Commission's ruling to the Cuyahoga County Court of Common Pleas. Mr. Rogers subsequently filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1). The trial court ruled that Mr. Rogers' Civ.R. 41(A)(1) motion was a nullity and granted judgment in favor of Ford. On appeal to this court, Mr. Rogers asserted inter alia that the trial court erred when it refused to recognize his motion to voluntarily dismiss. Ford urged this court to reject Mr. Rogers' proposition of law because permitting Mr. Rogers to voluntarily dismiss the action would interfere with the intent of the statute by precluding Ford's right to appeal. In Rogers, this court ruled that, pursuant to Civ.R. 41(A)(1), an employee may voluntarily dismiss his or her action and that an employee's voluntary dismissal does not mean that the entire action has to be dismissed. Id. An employer retains the right to appeal, and the lower court erred when it refused to recognize Mr. Rogers' voluntary dismissal pursuant to Civ.R. 41(A)(1). Id. Turning to the case at bar, under Rogers, the trial court erred when it failed to recognize Mr. Moore's right to voluntarily - 9 - dismiss his action pursuant to Civ.R. 41(A)(1). Given the foregoing, Mr. Moore's assignment of error is well taken. Accordingly, Mr. Moore's assignment of error is sustained. II. In Mr. Moore's second assignment of error, he charges that the trial court's order dismissing his case with prejudice for failure to prosecute, after he filed his voluntary dismissal, is a nullity. Mr. Moore specifically charges that the trial court lacked jurisdiction to dismiss his case with prejudice for failure to prosecute. Once a motion to dismiss is filed, a trial court is divested of any further jurisdiction to issue orders or judgment. Herbert Otworth v. Department of Mental Health, supra; Central Mut. Ins. Co. v. Bradford White Co. (1987), 35 Ohio App.3d 26; Randustrial Corporation v. Gary E. Takacs (Mar. 19, 1987), Cuyahoga App. No. 51686, unreported. Herein, the trial court erred when it dismissed Mr. Moore's action with prejudice after he filed a motion to voluntarily dismiss the action. Accordingly, the trial court's ruling dismissing the action with prejudice is reversed. III. Given our disposition of Mr. Moore's first assignment of error, we need not address Mr. Moore's third assignment of error. App.R. 12. Accordingly, judgment is reversed. - 10 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court 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. JAMES D. SWEENEY, P.J. and PATRICIA BLACKMON, J. CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .