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Moore v. Trimble8/15/1996
JUDGMENT REVERSED.
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.
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.
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 con
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