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Mandzuk v. LTV Steel Co.1/30/1997
PER CURIAM
JUDGMENT: VACATED AND REMANDED.
These are consolidated cases involving the same workers' compensation matter.
In appellate case no. 71025, we overrule appellants' first and second assignments of error. We hold that LTV must employ R.C. 4123.522 in order to invest the trial court with jurisdiction. See Cantrell v. Celotex Corp. (1995), 105 Ohio App.3d 90. Any other holding both obviates the need for R.C. 4123.522 as a "savings procedure" and circumvents the well defined statutory procedures for administrative workers' compensation appeals. Because appellants did not timely appeal, nor exhaust their administrative remedies, the trial court had no subject matter jurisdiction over the lawsuit and properly dismissed the case.
We sustain appellants' third assignment of error. Dismissal with prejudice is inappropriate where the trial court lacks jurisdiction. Civ.R. 41(B)(4). Accordingly, we vacate the entry of dismissal with prejudice and remand this cause for entry of dismissal without prejudice.
With respect to appellate case no. 71809, having ruled that the first appeal to the common pleas court should have been dismissed without prejudice, the doctrine of res judicata is inapplicable as there has been no final judgment on the merits. See Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379.
Therefore, in case no. 71809, we vacate the trial court's journal entry dismissing the case and remand for further proceedings pursuant to the finding of the Industrial Commission that proper notice of its decision was not received by appellants and the consequent timely appeal filed by appellants in said case no. 71809.
This cause is vacated and remanded for proceedings consistent with this opinion.
It is, therefore, considered that said appellants recover of said appellee their 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.
PATRICIA A. BLACKMON PRESIDING JUDGE
JOSEPH J. NAHRA, JUDGE
LEO M. SPELLACY, JUDGE
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