Summary
construing a joint stipulation of dismissal without prejudice of the "within action" to be a dismissal of both the complaint and the notice of appeal, where the employer filed the notice of appeal and the claimant filed the complaint
Summary of this case from Jackson v. Am. Bulk Commodities, Inc.Opinion
No. 179738.
Decided April 11, 1990.
Victor H. Hahn; Mondello Levey, Frank P. Giaimo and Scott I. Levey, for plaintiff.
Squire, Sanders Dempsey, George S. Crisci and William M. Hanna; and Richard T. Prasse, for defendant United Parcel Service, Inc.
Anthony J. Celebrezze, Jr., Attorney General, and Mary Kaye Bozza, for defendant Industrial Commission.
Plaintiff, Donald P. Kusa, has filed a motion to dismiss the notice of appeal filed by defendant United Parcel Service, Inc. The basis of the motion is that this court lacks jurisdiction to hear the case.
The agreed-upon facts indicate that, on March 22, 1988, defendant United Parcel Service, Inc. filed its notice of appeal from a determination of defendant Industrial Commission to this court. Thereafter, plaintiff filed a complaint in this matter and defendant answered, putting the case at issue. Subsequently, however, both parties signed a "Stipulation of Dismissal Without Prejudice," which reads in its entirety as follows:
"Pursuant to Ohio Rule of Civil Procedure 41(A)(1), the parties hereby stipulate to the dismissal without prejudice of the within action, each party to bear its own costs.
"The parties further stipulate that the deposition testimony of Dr. Alan Kravitz, taken on July 12, 1989, and Dr. Lelio Franceschini, taken on July 6, 1989, may be used in the action if such action is refiled within one year of entry of dismissal."
Defendant United Parcel Service, Inc. has refiled this case pursuant to the stipulation, and plaintiff objects, alleging that this court lacks jurisdiction because more than sixty days have elapsed from the date of the decision of defendant Industrial Commission.
R.C. 2305.19, generally known as the savings statute reads, in part, as follows:
"In an action commenced, or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * *"
R.C. 4123.519 which refers to appeal rights is rather specific as to the time within which an appeal may be taken. In part, it states:
"(A) The * * * employer may appeal a decision of the industrial commission * * * to the court of common pleas * * *. Notice of the appeal shall be filed * * * within sixty days after the date of the receipt of the decision appealed from * * *."
The issue, then, presented for review is whether the savings statute applies to the statutory appellate scheme of R.C. 4123.519.
The court's attention is invited by both counsel to Lewis v. Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285, where ironically, this court originally dismissed the appellant's complaint without prejudice for failure of counsel to attend a pretrial conference. Appellant filed a second complaint on the basis that R.C. 2305.19, the savings statute, was applicable. The dismissal of that action by another judge was appealed. The Supreme Court held:
"Where a notice of appeal is filed within the time prescribed by R.C. 4123.519 and the action is dismissed without prejudice after expiration of that time, R.C. 2305.19, the savings statute, is applicable to workers' compensation complaints filed in the common pleas court." Id. at the syllabus.
In the instant case, plaintiff argues that the Lewis holding only applies to "complaints," not to "notices of appeal"; hence, since the stipulated dismissal was signed by both counsel, presumably plaintiff agreed to dismiss the complaint and the defendant agreed to withdraw the notice of appeal, and since Lewis does not indicate that a second notice of appeal was filed, plaintiff would have this court hold the defendant failed to vest this court with jurisdiction.
Fault with the above reasoning is threefold: first, equity dictates that it is inherently unfair to permit the plaintiff here to refile a complaint, but to refuse to permit defendant to refile the notice of appeal; second, since both counsel signed the entry and both were aware of the possibility of refiling, each is estopped to assert the defense of inapplicability of the savings statute because both contemplated refiling at the time of the stipulation, yet neither bothered to attempt to protect that defensive position at that time; finally, in Lewis, the court stated inter alia that "* * * R.C. 4123.519 contains a limitation on a remedy, not a limitation on a right of action. * * *" Id. at 3, 21 OBR at 268, 487 N.E.2d at 287. Further, Justice Wright, in his concurring opinion, stated that "* * * when appropriate this court will construe the Ohio Rules of Civil Procedure and other rules to insure that controversies are decided on their merits rather than on overly technical applications of the rules which would lead to a dismissal. * * *" (Footnote omitted.) Id. at 5, 21 OBR at 269, 487 N.E.2d at 288.
Therefore, since this statutory section limits the remedy, not the right, it cannot be interpreted to allow the savings statute to apply to litigants obliged to file complaints, but not apply to those who must file notices of appeal.
The original belief of this court that the savings statute applies to cases filed under R.C. 4123.519 was ultimately affirmed in Lewis. It is the further belief of this court that once an action is timely filed pursuant to R.C. 4123.519 and dismissed without prejudice by both counsel, the right to refile is also governed by R.C. 2305.19 and it makes no difference whether the application is to a notice of appeal or to a complaint. The facts are that the matter was timely filed, both counsel agreed to a dismissal and both must be willing to accord the other the opportunity for a full hearing on the merits, provided however, the facts reveal compliance with R.C. 2305.19.
Accordingly, plaintiff's motion to dismiss is overruled. Case now scheduled for final pretrial May 24, 1990. Trial, if necessary, July 30, 1990.
Reporter's Note: By an entry dated September 24, 1990 this cause was dismissed as being settled.