[Cite as Adams v. Enon,

.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

VIKKI ADAMS :

Plaintiff-Appellant : C.A. CASE NO. 2012-CA-42

vs. : T.C. CASE NO. 2011-CV-1185

VILLAGE OF ENON : (Civil Appeal from the Common Pleas Court) Defendant-Appellee :

.........

OPINION

Rendered on the 28th day of December, 2012.

.........

Erica Ann Probst, Atty. Reg. No. 0073486, 88 West Mound Street, Columbus, Ohio 43215 Attorney for Plaintiff-Appellant

Lynnette Dinkler, Atty. Reg. No. 0065455, 2625 Common Boulevard, Suite A, Dayton, Ohio 45431 Attorney for Defendant-Appellee

.........

GRADY, P.J.:

{¶ 1} This is an appeal from a final order dismissing an action on a claim for relief

brought pursuant to R.C. 4123.90. That section provides, in pertinent part:

No employer shall discharge, demote, reassign, or take any punitive

action against any employee because the employee filed a claim or instituted,

pursued or testified in any proceedings under the workers’ compensation act 2

for an injury or occupational disease which occurred in the course of and

arising out of his employment with that employer. Any such employee may

file an action in the common pleas court of the county of such employment in

which the relief which may be granted shall be limited to reinstatement with

back pay, if the action is based upon discharge, or an award for wages lost if

based upon demotion, reassignment, or punitive action taken, offset by

earnings subsequent to discharge, demotion, reassignment, or punitive action

taken, and payments received pursuant to section 4123.56 and Chapter 4141.

Of the Revised Code plus reasonable attorney fees. The action shall be

forever barred unless filed within one hundred eighty days immediately

following the discharge, demotion, reassignment, or punitive action taken, and

no action may be instituted or maintained unless the employer has received

written notice of a claimed violation of this paragraph within the ninety days

immediately following the discharge, demotion, reassignment, or punitive

action taken. (Emphasis added).

{¶ 2} Plaintiff Vikki Adams (“Adams”) was employed as a police officer by

Defendant Village of Enon (“Enon”). Adams suffered an on-the-job injury for which she was

awarded workers’ compensation benefits. Enon terminated Adams from her employment,

effective November 9, 2011.

{¶ 3} On December 2, 2011, Adams filed a complaint alleging that her termination

violates R.C. 4123.90 because “the reasons for the termination were to retaliate against 3

Plaintiff for filing one and/or multiple workers’ compensation claims.” [Dkt. 1, paragraph 10].

The complaint further alleged, at paragraph 13:

Defendant 1 (sic) provided notice to Defendant within ninety days of her

termination of her claim of workers’ compensation retaliation by service of this

Complaint within ninety days from her termination.

{¶ 4} Enon filed an answer denying the allegations in paragraph 13 of the complaint,

and further pleading as an affirmative defense that “Plaintiff has not complied with the

requirements of R.C. 4123.90 and is therefore barred from pursuing this action.” [Dkt. 3,

paragraph 30].

{¶ 5} On March 16, 2012, Enon filed a combined Civ.R. 12(B)(1) motion to dismiss

for lack of jurisdiction of the subject matter of Adams’s claim for relief or, alternatively, a

Civ.R. 56 motion for summary judgment on Enon’s R.C. 4123.90 affirmative defense. Two

exhibits were attached to Enon’s motion. Exhibit B is a copy of Adams’s denial to the

following request for admissions by Enon. It states:

1. Admit that the Village of Enon did not receive written notice of a

claimed violation of Ohio Revised Code §4123.90 before Plaintiff

instituted her instant lawsuit in the Clark County Court of Common

Pleas Case No. 11 CV 1185.

1 We construe the allegation to mean that the complaint which Adams claims satisfied the R.C. 4123.90 notice requirement was served on Defendant Enon by “Plaintiff” Adams, not by “Defendant” Enon. 4

Deny. Section 4123.90 of the Ohio Revised Code requires that Defendant

receive Notice of a violation within 90 days of the retaliatory conduct, here

termination. Plaintiff’s Notice was sent and received by the Defendant within

90 days. Specifically, the lawsuit was filed and served upon Defendant within

90 days of termination and was in writing. It contained the required notice.

The statute does not require that a notice be sent separately from the lawsuit

only that it be sent within 90 days. (Emphasis added).

{¶ 6} On April 2, 2012, Adams moved to amend her complaint pursuant to Civ.R.

15(A) to add two new claims for relief: a claim for employment discrimination on account of

a disability and a claim for employment discrimination on account of age, both in violation of

R.C. 4112.02 and authorized by R.C. 4112.99. Adams renewed that motion on April 19,

2011, attaching another proposed amended complaint.

{¶ 7} On May 24, 2012, the trial court entered a judgment which states, in its

entirety:

Defendant’s motion to dismiss this case for failure to comply with

written notice requirements under R.C. 4123.90 is SUSTAINED. Defendant’s

failure to provide written notice deprives this court of jurisdiction.

Pursuant to the ruling on defendant’s motion all other pending motions

are deemed MOOT and the August 14, 2012 civil pre-trial is VACATED.

IT IS SO ORDERED.

{¶ 8} Adams filed a timely notice of appeal from the judgment of May 24, 2012.

{¶ 9} First assignment of error: 5

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED

VILLAGE OF ENON’S MOTION TO DISMISS.”

{¶ 10} Second assignment of error:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED

VILLAGE OF ENON’S MOTION FOR SUMMARY JUDGMENT.”

{¶ 11} Addressing these assignments of error in reverse order, we first overrule the

second assignment of error. It is plain from the face of the May 24, 2012 judgment that the

trial court granted Enon’s Civ.R. 12(B)(1) motion to dismiss Adams’s action on her R.C.

4123.90 claim for relief for lack of subject matter jurisdiction. That ruling rendered the

controversy between the parties on that issue moot, because no further judgment on any other

aspect of the same claim for relief could then have any practical legal effect. The trial court

did not err when it failed to rule on Enon’s alternative motion for summary judgment.

{¶ 12} With regard to the first assignment of error, compliance with the time of filing

the notice, the place of filing, and the content of the notice as specified by R.C. 4123.90 are all

conditions precedent to invoking the court’s subject matter jurisdiction to adjudicate an

alleged violation of that section, and failure to serve the written notice on the employer is a

jurisdictional defect requiring dismissal of the claim for relief. Cross v. Gertenslager Co.,

,

(9th Dist. 1989); Miller v. Premier Industrial Corp.,

,

(8th Dist. 2000).

{¶ 13} It is undisputed that Adams served no form of notice of her claimed violation

of R.C. 4123.90 on Enon apart from the complaint she filed in the present action on December

2, 2011 and caused to be served on Enon. Consistent with the allegations of paragraph 13 of 6

her complaint, and her response to Enon’s request for admissions quoted above, Adams

argues that the complaint Enon was served satisfied the notice requirement in R.C. 4123.90.

Adams contends that nothing in that section indicates a legislative intent that the notice must

be received by the employer prior to filing a complaint alleging a violation of R.C. 4123.90.

We do not agree.

{¶ 14} R.C. 4123.90 expressly states that “no action may be instituted” on a claim for

relief authorized by that section “unless the employer has received written notice of a claimed

violation of this paragraph within the ninety days immediately following the discharge,

demotion, reassignment, or punitive action taken.” (Emphasis added). By adding “ed” to

the base form of the regular verb “receive,” and combined with “has,” the text of R.C.

4123.90 uses the past perfect tense of “receive” to indicate an action which was completed

before another past action. That other past action is, of course, the institution or

commencement of an action on an R.C. 4123.90 claim, the necessary first step of which is the

filing of a complaint. Civ.R. 3(A). Because the notice requirement must be completed

before the complaint is filed, the complaint or its service on the employer cannot constitute

receipt of the notice mandated by R.C. 4123.90.

{¶ 15} Even if the complaint served on Enon might be construed to satisfy the notice

requirement of R.C. 4123.90, on this record it could not have done so. The clerk’s summary

of docket and journal entries states that the complaint and summons were served on Enon by

certified mail on December 13, 2011, eleven days after Adams filed her complaint instituting

her action on December 2, 2012. That sequence of events is the reverse of what the statute

requires. 7

{¶ 16} Finally, Adams argues that an article published in the Village of Enon

newspaper created the required notice, and that “[l]ikely, the Village of Enon received a copy

of its own newspaper or had knowledge of it.” (Brief, p.16). The contention is speculative.

Further, “notice” assumes a statement sent directly to the recipient by the party giving notice,

and a general publication does not satisfy the requirement. Furthermore, even if the article

could rise to that level, we note that the article was published on December 4, 2011, two days

after Adams filed her complaint instituting the action on her R.C. 4123.90 claim for relief.

{¶ 17} The dissenting opinion is predicated on the proposition that because the

content and timing of the notice requirements in R.C. 4123.90 are ambiguous, R.C. 4123.95

requires us to construe those requirements liberally in Adams’s favor. However, the mandate

in R.C. 4123.95 does not permit a court to read into a worker’s compensation statute

something which cannot reasonably be implied from the language of the statute. Valentine v.

PPG Industries, Inc.,

,

,

(4th Dist.).

Further, while the notice provisions in R.C. 4123.90 may be inartfully drafted, they are not

ambiguous with respect to the content and timing of the required notice because they are not

susceptible to more than one reasonable interpretation. Bailey v. Republic Engineered Steels,

Inc.,

,

(2001). Filing and timely service of a complaint are

necessary to commence a civil action. Civ.R. 3(A). It is not a reasonable interpretation of

R.C. 4123.90 to hold that service of the complaint on the employer likewise satisfies the

employee’s statutory duty to provide the employer notice that the employee intends to

commence the same action. That interpretation of R.C. 4123.90 renders its notice 8

requirement a vain act, and it is not reasonable to hold that it was the General Assembly’s

purpose in enacting R.C. 4123.90.

{¶ 18} The first and second assignments of error are overruled.

{¶ 19} Third assignment of error:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED OR

DETERMINED TO BE MOOT VIKKI ADAMS’ MOTION FOR LEAVE TO AMEND

COMPLAINT.”

{¶ 20} The trial court did not deny Adams’s motion for leave to amend her complaint

by adding two new claims for relief alleging employment discrimination based on age and

disability, nor did the court otherwise rule on the merits of Adams’s motion. Instead, the

court dismissed the motion as moot.

As a general matter, courts will not resolve issues that are moot. Courts cannot

entertain jurisdiction over a moot question. Actions are “moot” when they are

or have become fictitious, colorable, hypothetical, academic, or dead; the

distinguishing characteristic of such issues is that they involve no actual

genuine, live controversy, the decision of which can definitely affect existing

legal relations. A “moot” case is one which seeks to get a judgment on a

pretended controversy, when in reality there is none, or a decision in advance

about a right before it has been actually asserted and contested, or a judgment

upon some matter which, when rendered, for any reason cannot have any

practical effect upon a then-existing controversy. Cases are not moot when an

actual controversy exists between adverse litigants. 9

23 Ohio Jurisprudence 3d, Actions, § 26. (Internal citations omitted.)

{¶ 21} App.R. 15(A) provides, in pertinent part:

A party may amend his pleading once as a matter of course at any time before a

responsive pleading is served or, if the pleading is one to which no responsive

pleading is permitted and the action has not been placed upon the trial

calendar, he may so amend it at any time within twenty-eight days after it is

served. Otherwise a party may amend his pleading only by leave of court or

by written consent of the adverse party. Leave of court shall be freely given

when justice so requires.

{¶ 22} Adams’s motion for leave to amend her complaint was filed while her action

against Enon remained pending. The motion alleged an actual controversy between Adams

and Enon concerning which a judgment on the motion could have a practical legal effect,

whether the motion was granted or denied. Therefore, the motion was not rendered moot by

the court’s dismissal of Adams’s R.C. 4123.90 claim for relief for lack of jurisdiction of the

subject-matter of that claim.

{¶ 23} Enon argues that the trial court could properly deny the motion on several

grounds. Those grounds involve the merits of Adams’s motion. On remand, the trial court

must determine the merits of the arguments the parties present, and rule accordingly.

{¶ 24} The third assignment of error is sustained.

{¶ 25} Having sustained the third assignment of error, the case will be remanded to

the trial court for further proceedings on Adams’s Civ.R. 15(A) motion for leave to amend her 10

complaint, consistent with this opinion. The judgment of the trial court is otherwise

affirmed.

Hall, J., concurs.

FROELICH, J., concurring in part and dissenting in judgment.

{¶ 26} I agree that issues regarding the motion for leave to amend the complaint were

not rendered moot by the dismissal of the claim brought under R.C. 4123.90. Therefore, I

concur in the resolution of the third assignment of error. For the following reasons, I dissent

from the resolution of the first and second assignments of error and the judgment of the court.

{¶ 27} Adams was discharged from her employment with the Village of Enon on

November 6, 2011, and she filed a written complaint with the trial court on December 2,

2011. In Count One of the complaint, Adams specifically raised a violation of R.C. 4123.90.

Because the complaint was served on the Village on December 12, 2011, the Village

received notice of the alleged violation about 36 days after the discharge occurred.

{¶ 28} R.C. 4123.90 provides, in pertinent part, that:

No employer shall discharge, demote, reassign, or take any punitive

action against any employee because the employee filed a claim or instituted,

pursued or testified in any proceedings under the workers' compensation act for

an injury or occupational disease which occurred in the course of and arising

out of his employment with that employer. Any such employee may file an

action in the common pleas court of the county of such employment in which

the relief which may be granted shall be limited to reinstatement with back pay,

if the action is based upon discharge, or an award for wages lost if based upon 11

demotion, reassignment, or punitive action taken, offset by earnings subsequent

to discharge, demotion, reassignment, or punitive action taken, and payments

received pursuant to section 4123.56 and Chapter 4141. of the Revised Code

plus reasonable attorney fees. The action shall be forever barred unless filed

within one hundred eighty days immediately following the discharge,

demotion, reassignment, or punitive action taken, and no action may be

instituted or maintained unless the employer has received written notice of a

claimed violation of this paragraph within the ninety days immediately

following the discharge, demotion, reassignment, or punitive action taken.

{¶ 29} This part of R.C. 4123.90, which allows claims for retaliatory discharge, was

added to the statute in 1978. See Am. H.B. 1282, Ohio Laws, Part II, 3934, 3961-62. It has

remained essentially the same since it was enacted. The provision does not specify, nor does

it limit, the manner in which an employer is to receive written notice of a claimed violation.

In fact, R.C. 4123.90 only refers to the employer’s receipt of notice; it does not even state who

must provide the written notice, or how it can be provided.

{¶ 30} In construing statutes, “our paramount concern is the legislative intent in

enacting the statute. In determining this intent, we first review the statutory language,

reading words and phrases in context and construing them according to the rules of grammar

and common usage.” (Citations omitted.) State ex rel. Steele v. Morrissey,

,

,

. Courts “discern the legislature’s purpose and

attempt to carry it out, but do not prostitute the language in doing so and do not construe the 12

words in a way which would result in unfairness to those who have to interpret them for 2 themselves.”

{¶ 31} In concluding that a separate written notice must be provided before a

complaint is filed (even if the complaint is filed within 90 days), the majority opinion relies on

the legislature’s use of the words “no action may be instituted * * * unless the employer has

received written notice.” However, this interpretation does not give sufficient emphasis to

the legislature’s additional use of the word “maintained,” which must have a different

meaning than “instituted,” or else it is a mere redundancy. Specifically, R.C. 4123.90 states

that “no action may be instituted or maintained unless the employer has received written

notice of a claimed violation of this paragraph within the ninety days immediately following

the discharge.” (Emphasis added.)

{¶ 32} One definition of “institute” is to “originate” or “cause to come into existence.”

Wester’s Third New International Dictionary 1171 (1969). In contrast, “maintain” is

defined as “to persevere in” or to “continue.” Id. at 1362.

{¶ 33} By inserting a reference to continuing an action, the legislature left room for

the interpretation that delivery of notice may include written notice given via a complaint, so

long as the complaint (i.e., notice) is filed within the 90-day period provided for giving written

notice to the employer. That is, the statute gives two choices (without any preference): (1)

give a separate written notice within 90 days and then file suit within 180 days (or else the

2 Merz, Plain Meaning Rule,

, 40 (1979). 13

plaintiff may not institute an action after 90 days or maintain an action after 180 days); or (2)

institute an action within 90 days and the action may thereafter be maintained.

{¶ 34} At a minimum, R.C. 4123.90 is ambiguous, and this is a reasonable

interpretation, particularly since the legislature failed to specify or limit the manner in which

notice must be received. “Ambiguity exists if the language of the statute is susceptible of

more than one reasonable interpretation.” Bailey v. Republic Engineered Steels, Inc.,

,

(2001).

{¶ 35} If a statute is ambiguous, the court, in determining the intention of the

legislature, may consider among other matters:

(A) The object sought to be attained;

(B) The circumstances under which the statute was enacted;

(C) The legislative history;

(D) The common law or former statutory provisions, including laws upon the same or

similar subjects;

(E) The consequences of a particular construction;

(F) The administrative construction of the statute. R.C. 1.49.

{¶ 36} Even before R.C. 4123.90 was amended in 1978 by Am. H.B. 1282, R.C.

4123.95 provided that “R.C. Sections 4123.01 to 4123.94, inclusive, of the Revised Code

shall be liberally construed in favor of employees and the dependents of deceased employees.”

Accordingly, the legislature intended R.C. 4123.90 to be construed liberally in favor of

employees. [Cite as Adams v. Enon,

.] {¶ 37} Regarding the purpose of the law under which 4123.90 was amended, Am.

H.B. 1282 contains various provisions that are intended to benefit employees and extend

protection to them. See Am. H.B. 1282, effective December 11, 1978, and January 1, 1979,

137 Ohio Laws, Part II, 3934. For example, the law as amended: (1) requires employers to

reimburse employees for expenses and lost wages, where the employer makes employees

submit to medical examinations; (2) restricts the administrator’s rights to take appeals where

an employer was represented at a hearing; (3) increases the monetary amounts injured

employees are entitled to receive for the first twelve weeks of total temporary disability; (4)

extends protection to individuals who refuse to consent to autopsy exams based on bona-fide

religious convictions; (5) adds protection against retaliation for employees who make

workers’ compensation claims; (6) extends workers’ compensation protection to “work-relief

employees,” i.e., those who exchange services or labor for public relief given in the form of

goods or services; and (7) guarantees benefits to employees of non-complying employers. Id.

at 3936-3937, 3940, 3945, 3960, 3961-3962, and 3964 (amending R.C. 4123.43(F), R.C.

4123.516, R.C. 4123.56, R.C. 4123.68(BB), R.C. 4123.90, R.C. 4127.01, and R.C. 4127.10).

The legislature’s purpose appears to be to benefit and protect employees.

{¶ 38} The legislation does not discuss the circumstances under which it was enacted,

so that would be a neutral factor. Regarding legislative history, the legislation remained

virtually the same throughout the legislative process, as did the notes accompanying the

legislation. The legislative notes, themselves, are not significantly illuminating. As an

example, the notes accompanying the bill after passage by the House and as reported to the

Senate by the Committee on Commerce and Labor on November 29, 1978, state as follows: 15

Employer Retaliation

The bill prohibits employers from discharging, demoting, reassigning or

taking any other punitive action against employees because they file a claim or

testify in any proceeding under the workers’ compensation law with respect to

a compensable injury or occupational disease. An employee who is damaged

by an employer violation may file an action in the common pleas court of the

county in which he is employed. (Lines 37.28-37.34).

The bill limits the relief granted to the aggrieved employee to

reinstatement with back pay if fired or to an award of wages lost on account of

a reassignment, demotion, or other punitive action. Any money received as a

result of the suit is to be offset by any unemployment compensation benefits,

temporary total disability benefits, and wages received during the time of the

violation. The employee is entitled also to recover reasonable attorney fees

(lines 37.35-38.5).

The bill bars any suit under this provision if not filed with a court

within 180 days of the alleged violation and unless the employee gives the

employer written notice of the violation within 90 days (lines 38.6-38.12).

Am. H.B. 1782, as reported by the S. Committee on Commerce and Labor, p.

5, Ohio Legislative Service Comm.1977-1978, LSC Box 17.

{¶ 39} While the legislative notes are not detailed, they do not support the proposition

that separate notice must be received prior to the time the employee files the action; they 16

merely indicate that the employee must give the employer notice of the violation within 90

days.

{¶ 40} The fourth factor mentioned in determining legislative intent refers to the

common law or former statutory provisions, including laws on the same or similar subjects.

Prior to the amendment of R.C. 4123.90, no common law action for retaliation existed in the

context of workers’ compensation cases. Instead, Ohio followed the rule that employment

was terminable-at-will for any reason that is not contrary to law. See, e.g., Mers v. Dispatch

Printing Co.,

,

(1985), and Fawcett v. G. C. Murphy &

Co.,

,

(1976) (rejecting the contention that an

employer’s right to terminate at will is limited by “ ‘principles which protect persons from

gross or reckless disregard of their rights and interests, wilful, wanton or malicious acts or acts

done intentionally, with insult, or in bad faith.’ ”)

{¶ 41} Other similar laws existed when R.C. 4123.90 was enacted, and do clearly

provide for pre-suit notification. This indicates that the Ohio legislature could have included

specific language to this effect in R.C. 4123.90, if that is what the legislature intended. For

example, R.C. 727.43 has stated as follows since its enactment in 1962:

No person who claims damages, arising without his fault from the acts

of a municipal corporation or its agents in the construction of a public

improvement, shall commence a suit therefor against a municipal corporation

until he files a claim for such damages with the clerk of such municipal

corporation, and sixty days elapse thereafter, to enable the municipal

corporation to take such steps as it deems proper to settle or adjust the claim. 17

{¶ 42} The use of the words “no person * * * shall commence a suit * * * until he

files a claim” clearly indicate the notice requirements. The remainder of the statute also

explains why prior notice is deemed a prerequisite to suit.

{¶ 43} The Village of Enon suggests in its brief that the ninety-day time period in R.C.

4123.90 was intended to give employers time to retract their retaliatory actions before suit, but

even under the Village’s interpretation of legislative intent, an employee could give separate

notice one day (within the 90 days) and institute an action the next day. If that were the

intent, the legislature had a ready example in R.C. 727.43 of how to phrase the requirement to

provide for a “cure” period. The legislature failed to incorporate such language in R.C.

4123.90.

{¶ 44} R.C. 1923.04, which outlines requirements for eviction, contains a similar

requirement for delivery of notification before bringing an action. This statute has remained

unchanged in pertinent part since G.C. 10451 was amended in 1929, meaning, again, that the

legislature knew how to communicate its intent.

{¶ 45} Prior to its amendment in 1929, G.C. 10451 stated that “A party desiring to

commence an action under this chapter, must notify the adverse party to leave the premises,

for the possession of which action is to be brought * * * three days before.” This section was

amended in 1929, to provide that “A party desiring to commence an action under this chapter,

must notify the adverse party to leave the premises, for the possession of which action is to be

brought * * * three or more days before bringing the action, by handing a written copy of the

notice to the defendant in person, or by leaving it at his usual place of abode.” Ohio Laws

113, v. 480. The current statute, R.C. 1923.04, contains essentially the same language. 18

Again, the legislature knew how to express its wishes regarding whether notice is required

before an action is filed.

{¶ 46} The fifth factor in deciding legislative intent relates to the consequences of a

particular interpretation. The Village received notice a little over a month after the alleged

wrongful discharge, and almost five-months before the deadline for filing a lawsuit would

have expired. The Village received notice well within the 90-day period, and has not even

suggested how it was prejudiced.

{¶ 47} Finally, R.C. 4123.90 is not mentioned in the Ohio Administrative Code, so

that is a neutral factor as well.

{¶ 48} As much as legislative intent is relevant, it does not supersede what the statute

says or doesn’t say. Justice Holmes once opined, “[w]e do not inquire what the legislature 3 meant; we ask only what the statute means.”

{¶ 49} Given the ambiguity in the statute, the fact that more than one reasonable

interpretation exists, and the factors in R.C. 1.49, which weigh in favor of Adams’s position, I

would conclude that Adams properly complied with the requirements of R.C. 4123.90.

{¶ 50} I also note that resort to federal statutes illustrates that Congress, as well, has

demonstrated an ability to write statutes in a manner that expresses the specific intent to make

notice a requirement before a litigant files suit. For example, 29 U.S.C. 633a(a) prohibits age

discrimination in federal government employment, and authorizes civil actions by aggrieved

3 Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harvard L. Rev. 417, 419 (1899). 19

parties, pursuant to 29 U.S.C. 633a(c). Unlike R.C. 4123.90, 29 U.S.C. 633a(d) states

specifically that:

When the individual has not filed a complaint concerning age

discrimination with the Commission, no civil action may be commenced by

any individual under this section until the individual has given the Commission

not less than thirty days' notice of an intent to file such action. Such notice

shall be filed within one hundred and eighty days after the alleged unlawful

practice occurred. Upon receiving a notice of intent to sue, the Commission

shall promptly notify all persons named therein as prospective defendants in

the action and take any appropriate action to assure the elimination of any

unlawful practice.

{¶ 51} It is also worth noting that even though the notice provision in 29 U.S.C.

633a(d) is clear, it has been held non-jurisdictional. In Forester v. Chertoff,

(9th Cir. 2007), the Ninth Circuit Court of Appeals stated that:

We conclude that the 30-day waiting period in 29 U.S.C. § 633a(d) is

not jurisdictional in the sense that a district court lacks any authority to grant

relief when a complaint is filed prematurely. Section 633a(c) provides for

jurisdiction of federal district courts over discrimination claims pursuant to the

ADEA. * * * District courts are broadly authorized to exercise subject matter

jurisdiction over “all civil actions arising under the Constitution, laws, or

treaties of the United States.”

. Only Congress may classify

a statute as jurisdictional. Kontrick v. Ryan,

,

, 20

(2004). However, Congress did not place the 30-day waiting

period within the specific provision that confers jurisdiction on the federal

district courts. Moreover, because “time prescriptions, however emphatic, are

not properly typed ‘jurisdictional,’ ” the mandatory language in § 633a(d) does

not support an interpretation of its time prescriptions as “jurisdictional.”

Arbaugh, 126 S.Ct. at 1242 (citation omitted). Accordingly, we hold that the

time prescriptions in 29 U.S.C. § 633a, including the 30-day waiting period,

are not jurisdictional and may be forfeited, waived, or equitably modified.

(Footnote and citation omitted.)

-929.4

{¶ 52} On the jurisdictional issue, the United States Supreme Court recently

commented on its own use of “jurisdictional,” as follows:

This Court has endeavored in recent years to “bring some discipline” to

the use of the term “jurisdictional.” Henderson v. Shinseki, 562 U.S. ––––,

––––,

, 1202–1203,

(2011). Recognizing our

“less than meticulous” use of the term in the past, we have pressed a stricter

distinction between truly jurisdictional rules, which govern “a court's

adjudicatory authority,” and nonjurisdictional “claim-processing rules,” which

do not. Kontrick v. Ryan,

, 454–455,

,

(2004). When a requirement goes to subject-matter jurisdiction, courts

are obligated to consider sua sponte issues that the parties have disclaimed or

4 The incomplete citation refers to Arbaugh v. Y&H Corp.,

,

,

(2006). 21

have not presented. See United States v. Cotton,

,

,

(2002). Subject-matter jurisdiction can never be

waived or forfeited. The objections may be resurrected at any point in the

litigation, and a valid objection may lead a court midway through briefing to

dismiss a complaint in its entirety. “[M]any months of work on the part of the

attorneys and the court may be wasted.” Henderson, 562 U.S., at ––––,

. Courts, we have said, should not lightly attach those “drastic”

consequences to limits Congress has enacted.

We accordingly have applied the following principle: A rule is

jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a

statute's scope shall count as jurisdictional.” Arbaugh v. Y & H Corp.,

,

,

(2006). But if “Congress

does not rank a statutory limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional.” * * * (Citation and footnote omitted.)

Gonzalez v. Thaler, ___ U.S. ___, ___,

, 648 -649,

(2012).

{¶ 53} Another federal statute that contains a “notice” requirement is the citizen suit

provision of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6972 (a)(1)(A),

which permits an individual to commence a civil action against any person, government

instrumentality, or agency, to enforce waste disposal regulations. However, 42 U.S.C.

6972(b)(1) states that “No action may be commenced * * * (A) prior to 60 days after the

plaintiff has given notice of the violation to” various parties, including any alleged violator. 22

Again, unlike R.C. 4123.90, this statute unambiguously requires notice to be provided before

an action may be commenced.

{¶ 54} The United States Supreme Court held that with regard to this statute, that:

The language of this provision could not be clearer. A citizen may not

commence an action under RCRA until 60 days after the citizen has notified

the EPA, the State in which the alleged violation occurred, and the alleged

violator. Actions commenced prior to 60 days after notice are “prohibited.”

Because this language is expressly incorporated by reference into § 6972(a), it

acts as a specific limitation on a citizen's right to bring suit. Under a literal

reading of the statute, compliance with the 60-day notice provision is a

mandatory, not optional, condition precedent for suit. Hallstrom v. Tillamook

County,

,

,

(1989).

{¶ 55} However, due to its “literal interpretation” of the statute, the Supreme Court

declined to consider whether the notice provision was jurisdictional in the “strict sense of the

term.” Instead, the court relied on the general rule that “if an action is barred by the terms of

a statute, it must be dismissed.”

. In view of the Supreme Court’s later observations

in Gonzalez, the notice provision in 42 U.S.C. 6972(b)(1) would no longer be considered

“jurisdictional.” That does not mean the action could not be dismissed for a failure to

comply with its requirements. And, as with the other statutes cited, the point is that both

Congress and the Ohio legislature know how to draft statutes that are clear.

{¶ 56} Since I conclude that Adams complied with the requirements of R.C. 4123.90,

I would not even reach the issue of whether the alleged failure to comply is jurisdictional. 23

However, in concluding that Adams’s alleged failure to send a notice before filing the

complaint deprived the trial court of subject matter jurisdiction, the majority opinion relies on

Cross v. Gerstenslager Co.,

,

(9th Dist. 1989), and Miller

v. Premier Indus. Corp.,

,

(8th Dist. 2000).

{¶ 57} Both Cross and Miller differ factually from the case before us, because no

written notice was ever provided to the defendant, and the complaints in each situation were

not filed within 90 days of the adverse employment action.

;

. Thus, the employer never argued that the complaints in those cases satisfied

the 90-day notice provision.

{¶ 58} Putting this factual distinction aside, the Ninth District Court of Appeals

concluded in Cross that the plaintiff’s failure deprived the trial court of subject matter

jurisdiction. The federal case cited for this holding, however, did not base its decision on

lack of subject matter jurisdiction. See Smith v. Capitol Mfg. Co., a Div. of Harsco Corp.,

(S.D.Ohio 1985). In Smith, the plaintiff brought a federal action for

violation of Section 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a), as well

as pendent state claims, including a wrongful discharge claim under R.C. 4123.90. After

dismissing the federal claim, the federal district court noted that R.C. 4123.90 provides a

substantive right to bring a wrongful action for discharge.

. The federal court then

made the following two-line statement:

It is undisputed that the plaintiff failed to bring a suit within 180 days

of his discharge and that he failed to provide notice to the defendant of the 24

alleged violation. Accordingly, the plaintiff may not assert a claim against the

defendant under the statute.

These two sentences comprise the entirety of the court’s analysis, and there is no mention of

“subject matter jurisdiction” (and again, there was no suit as separate notice within 90 days).

{¶ 59} Likewise, in Miller, the Eighth District Court of Appeals simply cited Cross

and other cases that had relied on Cross’s brief reference to subject matter jurisdiction.

Miller,

.

{¶ 60} In Pratts v. Hurley,

,

,

, ¶ 11,

the Supreme Court of Ohio noted that:

“Jurisdiction” means “the courts' statutory or constitutional power to

adjudicate the case.” (Emphasis omitted.) Steel Co. v. Citizens for a Better

Environment (1998),

,

,

;

Morrison v. Steiner (1972),

,

,

, paragraph one of the syllabus. The term encompasses jurisdiction over the

subject matter and over the person. * * * Because subject-matter jurisdiction

goes to the power of the court to adjudicate the merits of a case, it can never be

waived and may be challenged at any time. * * * It is a “condition precedent

to the court's ability to hear the case. If a court acts without jurisdiction, then

any proclamation by that court is void.” Id.; Patton v. Diemer (1988),

,

, paragraph three of the syllabus.

{¶ 61} Consistent with the observation of the United States Supreme Court in

Gonzalez, the Supreme Court of Ohio stressed in Pratts that “Jurisdiction has been described 25

as ‘a word of many, too many, meanings.’ * * * The term is used in various contexts and often

is not properly clarified. This has resulted in misinterpretation and confusion.”

at ¶ 33, quoting United States v. Vanness,

(C.A.D.C. 1996).

The Supreme Court of Ohio went on to explain that “[s]ubject-matter jurisdiction is a court's

power over a type of case. It is determined as a matter of law and, once conferred, it

remains.” Id. at ¶ 34.

{¶ 62} In view of this analysis by the Supreme Court of Ohio, I disagree with the

conclusion that failure to comply with the notice requirements in R.C. 4123.90 deprives a trial

court of subject matter jurisdiction. I would instead, conclude that failure to comply, like

other statutory requirements, is non-jurisdictional and may be waived by a party’s failure to

timely raise the matter. This probably would not affect the majority’s disposition of the case

because Enon timely raised its argument.

{¶ 63} I also disagree that it is “undisputed” that the employer received no written

notice of the claimed violation apart from the complaint. Adams filed a Civ.R.56(F)

affidavit with the trial court, stating that she had filed for unemployment benefits and had

mentioned her claim for wrongful discharge therein. Adams further indicated in her 56(F)

affidavit that case law provided her with additional methods of establishing that the Village

had received notice of her workers’ compensation claim within the first 90 days, and stated

that she needed time to conduct discovery and determine if the Village received additional

written notice. The trial court dismissed the case without commenting on the request.

{¶ 64} In Lamolinaro v. Kroger Co., 10th Dist. Franklin No. 87AP-137,

(Dec. 29, 1987), the Tenth District Court of Appeals reversed a summary judgment that 26

had been granted to an employer, based on the employer’s failure to receive written notice of a

claimed violation within 90 days after the plaintiff’s discharge. The Tenth District Court of

Appeals stated that:

Plaintiff was discharged on March 31, 1983; thus, the employer must

have received written notice of a claimed violation by June 30, 1983.

According to the materials submitted in summary judgment, on June 16, 1983,

the employer received a written unfair labor practice charge in which it stated

that plaintiff was discharged “because she attempted to process a workers'

compensation claim and to assert rights under the state workmen's [sic]

compensation laws.” Given the liberal construction accorded the provisions

of R.C. 4123.90 in favor of the employee as stated by the Supreme Court in

Bryant v. Dayton Casket Co. (1982),

, (see, also, R.C.

4123.95), there was obviously evidence upon which reasonable minds can

differ as to whether the employer received the notice required by R.C. 4123.90

within ninety days after plaintiff was discharged. Furthermore, there were

other notices given defendant that tangentially were related to the issue of

notice. Id. at * 2.

{¶ 65} Subsequently, in Ira v. Price Bros. Co., 10th Dist. Franklin No. 93AP-679,

, (Sept. 30, 1993), The Tenth District Court of Appeals concluded that the

plaintiff had substantially complied with the notice requirements in R.C. 4123.90 by giving

written notice of her claim in a form submitted to the Ohio Bureau of Unemployment

Services. Id. at *3. See, also, Keyes v. Car-X Auto Service, S.D. Ohio, No. C-1-07-503, 27

(June 10, 2009), *3 (holding that summary judgment for the employer was

inappropriate, due to notice in letters plaintiff had sent to the unemployment commission

about worker’s compensation retaliation, and factual issues about whether the defendant had

received the notice within the 90 day period).

{¶ 66} Civ. R. 56(F) states that:

Should it appear from the affidavits of a party opposing the motion for

summary judgment that the party cannot for sufficient reasons stated present by

affidavit facts essential to justify the party's opposition, the court may refuse

the application for judgment or may order a continuance to permit affidavits to

be obtained or discovery to be had or may make such other order as is just.

{¶ 67} Decisions regarding a Civ. R. 56(F) affidavit are within the trial court’s

discretion. See, e.g., Gates Mills Inv. Co. v. Village of Pepper Pike,

,

(8th Dist. 1978). “[A]n abuse of discretion most commonly arises

from a decision that was unreasonable.” Wilson v. Lee,

,

,

(2d Dist.) “Decisions are unreasonable if they are

not supported by a sound reasoning process.” AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp.,

,

(1990).

{¶ 68} In the case before us, the trial court failed to either consider or comment on the

request for additional time. Therefore, the court’s decision is not overtly supported by any

reasoning process. Adams’s action had been pending for a short period of time, and the

request for additional time was reasonable, particularly in light of the cases that allow notice

to be provided by unemployment filings and the like. Although the notice provided by the 28

service of the complaint within 90 days is sufficient, the fact that notice may have been

received though filings with the unemployment commission is an additional reason why the

summary judgment should not be sustained.

Copies mailed to:

Erica Ann Probst, Esq. Lynnette Dinkler, Esq. Hon. Douglas M. Rastatter