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Yates v. Retail Services Inc.12/10/1998
PER CURIAM
JUDGMENT: REVERSED; JUDGMENT ENTERED IN FAVOR OF RSI.
An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E).
In this action, Defendant-appellant Retail Services, Inc. ( RSI ), appeals from the trial court's ruling of June 18, 1998, which mooted defendant's motion to dismiss/summary judgment. For the reasons adduced below, we reverse and enter judgment in favor of RSI.
A review of the record on appeal indicates that the Industrial Commission of Ohio on March 17, 1996, allowed plaintiff-appellee Michael Yates' ( Yates ) claim for workers' compensation. Yates' employer, RSI, filed an appeal of that administrative decision with common pleas court on May 9, 1996, pursuant to R.C. 4123.512. Yates filed his Complaint in common pleas court pursuant to R.C. 4123.512(D) on July 9, 1996. This Complaint was untimely, having not been filed within thirty days of the service of RSI's notice of appeal to common pleas court. R.C. 4123.512(D).
On April 24, 1997, Yates filed a notice of voluntary dismissal with prejudice at plaintiff's costs. On April 28, 1997, the trial court issued an order noting that it had been informed through conversations with RSI's counsel of the voluntary dismissal filing.
On May 1, 1997, the trial court issued an order stating notice of dismissal w/o prejudice filed by [plaintiff] at [plaintiff's] costs. Final. RSI filed a motion to dismiss/summary judgment on May 12, 1998. On June 18, 1998, the trial court denied the RSI dispositive motion as moot, noting that Yates had filed a notice of voluntary dismissal on April 14, 1997, at which point this case was no longer pending in this court. Journal Vol. 2229, page 197. On July 13, 1998, RSI filed a motion for reconsideration/relief from judgment under Civ.R. 60(B) relative to the court order of June 18, 1998. RSI filed this timely notice of appeal from the trial court order of June 18, 1998.
The lone assignment of error presented by RSI states:
THE TRIAL COURT ERRED WHEN IT DENIED AS MOOT DEFENDANT-APPELLANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT IN THE WITHIN EMPLOYER INITIATED WORKERS' COMPENSATION APPEAL.
The fact pattern herein is substantially identical to that in Rice v. Stouffer Foods Corp. (November 6, 1997), Cuyahoga App. No. 72515, unreported, 1997 WL 691156. In Rice, we determined that despite the voluntary notice of dismissal by the employee, the trial court still retained jurisdiction over the employer's appeal subject to the refiling of the employee's Complaint under R.C. 2305.19, the savings statute. Thus, the trial court erred in determining that the employer's appeal was moot by virtue of the employee's voluntary dismissal.
The next question is what effect the employee's failure to refile his complaint has on the employer's appeal in common pleas court? Rice again provides the answer:
If an employee does not refile his complaint within the year's time, he can no longer prove his entitlement to participate in the workers' compensation system, as is his burden on appeal. * In that instance, the employee's failure to refile his complaint warrants judgment for the employer *. (Citations omitted.) Rice, supra, 1997 WL at 6.
The failure of Yates to refile his Complaint within the savings statute period warrants judgment for the employer on whether the employee has a right to participate in the workers' compensation fund. Id.
The a
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