2011-Ohio-651

Jerry Ackley, Appellee, v. Marsha P. Ryan, Administrator, Bureau of Workers’ Compensation, Defendant, Die Co., Inc., Appellant.

No. 2010-L-127.Court of Appeals of Ohio, Eleventh District, Lake County.
February 11, 2011.

Administrative Appeal from the Court of Common Pleas, Case No. 08 CV 003807.

Appeal dismissed.

Ernest A. Lallo, Lallo Feldman Co., L.P.A., (For Appellee).

Natalie F. Grubb and John S. Lobur, Grubb Associates, L.P.A., (For Appellant).

MEMORANDUM OPINION
MARY JANE TRAPP, J.

{¶ 1} This appeal ensued on October 27, 2010, when appellant, Die Co., Inc., filed a notice of appeal from an October 6, 2009 judgment entry of the Lake County

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Court of Common Pleas. In the October 6 entry, the trial court ordered the case dismissed without prejudice.

{¶ 2} The docket in this matter reveals that on March 7, 2007, the employer/ appellant, Die Co., Inc., filed a notice of appeal with the Lake County Court of Common Pleas pursuant to R.C. 4123.512 from a February 2007 decision of the Industrial Commission of Ohio. On June 8, 2007, employee/appellee, Jerry Ackley, filed a motion for leave of court to file instanter his complaint appealing from the same February 2007 decision of the Industrial Commission, and subsequently filed that complaint on June 22, 2007. Mr. Ackley voluntarily dismissed that action on December 6, 2007.

{¶ 3} On December 3, 2008, Mr. Ackley refiled the action. On October 6, 2009, Mr. Ackley filed a “Motion for Court dismissal under [Civ. R.] 41(A)(2).” On that same date, the trial court issued an entry which stated that the case was dismissed “* * * as appellant is unavailable for trial, without prejudice, otherwise then on the merits with a right to re-file.”

{¶ 4} Appellant filed an appeal with this court from that decision on October 26, 2009. We dismissed the action for lack of a final appealable order since the matter could be refiled by Mr. Ackley within a year under the savings statute. Ackley v. Ryan, 11th Dist. No. 2009-L-143, 2010-Ohio-477, at ¶ 8-9, citing t Thorton v. Montville Plastics Rubber, Inc., 121 Ohio St.3d 124, 126-127, 2009-Ohio-360. Appellant has filed the instant appeal from the same October 6, 2009 entry, in which the trial court dismissed its case without prejudice.

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{¶ 5} Pursuant to Bingham v. Evenflo Co., Inc., 2d Dist. No. 09CA0039, 2010-Ohio-2264, at ¶ 13, the voluntary dismissal of the complaint by an employee does not affect an employer’s notice of appeal, and the court of common pleas retains jurisdiction until the refiling of an employee’s complaint. Therefore, if the complaint is not refiled by the employee, an employer would have to seek a final remedy by filing a dispositive motion with the common pleas court and not with the appellate court. See, generally Bingham, supra; see, also, Gonzalez v. Alcon Industries, Inc., 8th Dist. No. 92274, 2009-Ohio-2587.

{¶ 6} Based on the foregoing, this court lacks jurisdiction to consider this appeal.

{¶ 7} Appeal dismissed

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.

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