COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70950 LARRY SCHADE : : Plaintiff-appellee : : vs. : : ADMINISTRATOR, BUREAU OF WORKERS' : JOURNAL ENTRY COMPENSATION : : and Defendant-appellee : : OPINION and : : INDUSTRIAL COMMISSION OF OHIO : : Defendant-appellee : : and : : LTV STEEL COMPANY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 13, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 290,135 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee GEORGE WUKOVICH Larry Schade : Attorney at Law 1717 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 (CONTINUED) APPEARANCES: (Cont.) For defendants-appellees LAUREL BLUM MAZOROW Bureau of Workers' Assistant Attorney General Compensation and 615 W. Superior Avenue Industrial Commission 12th Floor of Ohio : Cleveland, Ohio 44113 For defendant-appellant: R. PATRICK BAUGHMAN TERRENCE J. JONES WILLIAM J. KRUEGER Attorneys at Law 55 Public Square, Suite 2215 Cleveland, Ohio 44113-1996 - 3 - TIMOTHY E. McMONAGLE, J.: LTV Steel brings this appeal challenging the decision of the lower court that denied its Motion to Show Cause and Motion to Vacate Plaintiff's Notice of Dismissal. Finding no error in the proceedings of the court below, we affirm. The matter before us arises from a workers' compensation appeal wherein the final order of the Industrial Commission allowed appellee/employee Larry Schade's workers' compensation claim. The appeal was filed by his employer, LTV Steel, pursuant to R.C. 4123.512 in the Court of Common Pleas of Cuyahoga County. On May 26, 1995, in conformance with the statutory requirements, the Notice of the Appeal was filed by LTV Steel. On June 23, 1995, appellee Schade filed his complaint. LTV Steel filed its answer to the complaint on July 19, 1995. Discovery was had, and the matter was set for trial to commence on February 7, 1996; however, on January 3, 1996, appellee Schade filed a Notice of Voluntary Dismissal without prejudice pursuant to Civ.R. 41(A). In response, LTV Steel filed a Motion to Show Cause and Vacate the Plaintiff's Notice of Dismissal. By journal entry, on January 22, the trial court entered its final order indicating that the case, Larry Schade v. LTV Steel Co., et al., was dismissed without prejudice. Subsequent to this final order and by stipulation of the parties - 4 - and order of the court, appellee Schade filed his brief in opposition to LTV Steel's Motion To Show Cause and Vacate Plaintiff's Notice of Dismissal. On June 10, 1996, the trial court journalized its denial of LTV Steel's Motion to Show Cause and Vacate Plaintiff's Notice of Dismissal. It is from this judgment that LTV Steel now appeals, presenting three assignments of error for our review. ASSIGNMENT OF ERROR NO. I BY FAILING TO HOLD CLAIMANT'S NOTICE OF VOL- UNTARY DISMISSAL FOR NAUGHT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPEL- LANT ITS DAY IN COURT. ASSIGNMENT OF ERROR NO. II BY FAILING TO VACATE CLAIMANT'S NOTICE OF VOLUNTARY DISMISSAL, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING A WORKER'S COMPENSATION CLAIMANT, IN AN EMPLOYER'S APPEAL TO COURT, TO UNILATERALLY DISMISS THE EMPLOYER'S APPEAL SO AS TO DELAY OR THWART THE RIGHTS OF AN EMPLOYER WHO IS CONTESTING THE FINDINGS OF THE INDUSTRIAL COMMISSION, DEFEATING THE PURPOSE OF THE APPEALS PROCESS AND ABUSING CIV.R. 41(A) ASSIGNMENT OF ERROR NO. III THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE EMPLOYER ITS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION IN A [sic] R.C. 4123.512 APPEAL TO COURT BY ALLOWING A WORKERS' COMPENSATION CLAIMANT TO UNILATERALLY DISMISS THE ACTION COMMENCED BY THE EMPLOYER. The gravamen of the errors complained of here by appellant LTV Steel is that it is error for the common pleas court to allow a workers' compensation claimant, pursuant to Civ.R. 41(A), to - 5 - voluntarily dismiss an employer's appeal brought pursuant to R.C. 4123.512 challenging the allowance of a claim. Appellant's reasoning relies upon the dissent of Judge Strat- 1 ton in Keller v. LTV Steel Co. ; however, we find appellant's reliance on Keller to be misplaced and find Keller not dispositive of the issue before us. Appellant further relies on the analysis in Rhynehardt v. 2 Sears Logistics Services as being completely on point with the matter sub judice. We agree that Rhynehardt is on point. In Rhynehardt, the employer appealed an allowance of a claim by the Industrial Commission into common pleas court, and just prior to trial, the court permitted the claimant to dismiss the action. Upon appeal by the employer, the Franklin County Court of Appeals reversed the trial court. The court, noting the direct conflict of its decision with the decision of our court in Ross v. Wolf 3 Envelope Co. stated in its opinion that the following question is certified to the Supreme Court of Ohio for review and final deter- mination: In an appeal pursuant to R.C. 4123.519 (now R.C. 4123.512) from the Industrial Commission to a court of common pleas brought by an employer, is the claimant entitled to dismiss 1 Keller v. LTV Steel Co. (1996), 76 Ohio St.3d 55. 2 Rhynehardt v. Sears Logistics Services (1995), 103 Ohio App.3d 327. 3 Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported. - 6 - his or her complaint pursuant to Civ.R. 41(A)(1)(a)? The appeal, however, was never brought before the supreme court. In addition, we note that the second appellate district court, 4 in Anderson v. Sonoco Products, finding the analysis of Rhynehardt to be more persuasive than Ross, held that Civ.R. 41(A)(1)(a) did not apply to the claimant Anderson as the employer Sonoco "commenced" the action by filing the notice of appeal and that Anderson's dismissal of the action was therefore a "nullity." Although it is clear that a conflict among the districts exists on the exact issue before our court today, the Supreme Court of Ohio has not yet addressed this very narrow issue. Our court has previously considered the arguments advanced by the appellant today, and we have rejected them. Appellant con- tends that we need not follow Ross as it is distinguishable from the matter sub judice. In Ross, the appeal was brought by the employer. The employee/claimant filed a notice of dismissal. The trial court failed to accept the employee/claimant's notice of dismissal and forced the claimant to proceed to trial without his expert witness, which resulted in a directed verdict in favor of the employer. On appeal, our court reversed, reasoning that Civ.R. 41(A)(1)(a) expressly provides for a unilateral dismissal by a "plaintiff." Therefore, when an employer files a notice of appeal pursuant to R.C. 4123.519, the claimant is required to file a 4 Anderson v. Sonoco Products (July 26, 1996), Miami App. No. 95-CA-58, unreported. - 7 - complaint showing his cause of action to participate or to continue to participate in the fund. The claimant is listed in the caption of that action as the "plaintiff." Accordingly, the claimant had a right to dismiss his complaint once, pursuant to Civ.R. 5 41(A)(1)(a). We note that despite LTV Steel's contention that this decision is distinguishable from the matter at hand due to claimant Ross's desperate situation, nowhere in its opinion did the Ross court indicate that its reasoning was based upon the desperate situation or extenuating circumstance of the case. Further, in 1994, this court again addressed the issue of whether a claimant could dismiss an employer's appeal pursuant to 6 Civ.R. 41(A)(1)(a). In Rogers v. Ford Motor Co., et al., we found that it was error for the trial court to refuse to recognize the claimant's notice of dismissal made pursuant to Civ.R. 41(A)(1)(a). In that case, the employer filed its notice of appeal to the common pleas court. When settlement negotiations failed, the parties were faced with less than one month to prepare for trial. Ford was granted a motion in limine to exclude all expert witnesses to be called by the claimant because Rogers failed to comply with Loc.R. 21.1 of the Cuyahoga Court of Common Pleas. The claimant, Rogers, filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). After the notice of dismissal, the trial court 5 Ross, at 13. 6 Rogers v. Ford Motor Co., et al. (Aug. 18, 1994), Cuyahoga App. No. 66118, unreported. - 8 - ordered claimant Rogers to show cause why judgment should not be entered in favor of Ford Motor Co. A hearing was held, and the trial court found that the claimant's Civ.R. 41(A)(1)(a) motion to dismiss was a nullity and granted judgment in favor of Ford Motor for Rogers' failure to prosecute. On appeal, our court reversed this decision of the trial court and reaffirmed its decision in Ross, stating, "Our decision in Ross, supra, was correct. Thus, the trial court erred in refusing to recognize the appellant's 7 notice of dismissal pursuant to Civ.R. 41(A)(1)(a)." Finally, in 1996, our court again addressed this exact issue 8 in Moore v. Wesley Trimble and Manfredi Motor Transit Co. In Moore, the employer, Manfredi Transit, filed its notice of appeal from the Industrial Commission's allowance of employee Moore's claim for injuries. Moore properly filed the petition with the Cuyahoga County Common Pleas Court. During settlement negotia- tions, Moore filed a Civ.R. 41(A)(1)(a) motion to voluntarily dismiss the action. The trial court, however, set a trial date and denied Moore's motion to voluntarily dismiss his action against Manfredi. Moore appealed the trial court's action, and, on appeal, our court, following the reasoning of the Rogers court, determined that the trial court erred when it failed to recognize Moore's right to voluntarily dismiss his action. 7 Rogers, at 3. 8 Moore v. Wesley Trimble and Manfredi Motor Transit Co. (Aug. 15, 1996), Cuyahoga App. No. 67895, unreported. - 9 - Accordingly, it is the position of our court that in this district, the Rules of Civil Procedure apply to these workers' compensation appeals. We recognize that pursuant to the civil rules, a plaintiff has the right to voluntarily dismiss his or her case once without prejudice, invoking the saving statute. A voluntary dismissal is accomplished by the filing of a dismissal notice with the court. Once such notice is filed, the court is divested of jurisdiction. We, therefore, hold, once again, that the trial court may not vacate the claimant/plaintiff's notice of voluntary dismissal brought pursuant to Civ.R. 41(A)(1)(a) even where the appeal is brought to the lower court by the employer. Accordingly, the appellant's assignments of error are not well taken, and the determination of the trial court that denied the appellant's Motion to Vacate Appellee's Notice of Voluntary Dismissal was proper. We recognize that our holding today is in direct conflict with the decisions of the Franklin County Court of Appeals in Rhynehardt and the Miami County Court of Appeals in Anderson. Therefore, pursuant to Section 3(B)(4), Article IV, Ohio Constitution, the record of this case is certified to the Supreme Court of Ohio for review and final determination upon the following question: In an appeal pursuant to R.C. 4123.512 [for- merly R.C. 4123.519] from the Industrial Com- mission to a court of common pleas brought by an employer, is the claimant entitled to dis- miss his complaint pursuant to Civ.R. 41(A)(1)(a)? - 10 - Judgment affirmed and action certified to the Supreme Court of Ohio. - 11 - It is ordered that appellee recover of appellant 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. JAMES D. SWEENEY, C.J. and JOHN T. PATTON, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .