[Cite as DeWalt v. Tuscarawas Cty. Health Dept.,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

DEBORAH DEWALT JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs-

TUSCARAWAS COUNTY HEALTH DEPARTMENT, et al.

Defendant-Appellant Case No. 2012 AP 05 0031 and

ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION OPINION Defendant-Appellee

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2007 CW 01 0006

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 14, 2012

APPEARANCES:

For Plaintiff-Appellee DeWalt For Defendant-Appellant

A. JAMES TSANGEOS STEVEN G. THOMAKOS LONAS, MCGONEGAL, TSANGEOS 221 Front Avenue, SW & STRUHAR Post Office Box 944 1810 - 36th Street, NW New Philadelphia, Ohio 44663 Canton, Ohio 44709-2739

For Defendant-Appellee BWC

SUSAN BERES ASSISTANT ATTORNEY GENERAL 615 West Superior Avenue, 11th Floor Cleveland, Ohio 44113-1899 Tuscarawas County, Case No. 2012 AP 05 0031 2

Wise, J.

{¶1} Defendant-Appellant Tuscarawas County Health Department appeals

Appellee Deborah DeWalt’s April 3, 2012, Notice of Dismissal without prejudice of her

complaint/petition.

STATEMENT OF THE FACTS AND CASE

{¶2} In 1990, Appellee Deborah Dewalt began working for Appellant

Tuscarawas County Health Department as a processing clerk. On April 11 and April 12,

1996, Appellant installed battery operated aerosol dispensers in eight (8) separate

bathrooms. The dispensers were programmed to dispense a compressed aerosol every

fifteen (15) minutes. The aerosol deodorizer was called "AERO-MIST" and contained

acetone, liquid petroleum, and fragrance. The Material Data Safety Sheet for the

deodorizer contained warnings that "inhalation may cause shortness of breath,

dizziness and light headedness: ingestion may cause chemical pneumonitis if aspired

into lungs."

{¶3} Shortly after the bathroom deodorizers were installed, Appellee began to

experience symptoms. On June 27, 2006, Appellee was sprayed with one of the

automatic deodorizers which caused severe respiratory distress, making it difficult to

breathe and affecting her lungs, tongue, lips, and eyes. The following day, Appellee had

a severe respiratory reaction when she inhaled a deodorizer from one of the bathrooms

as she passed in the hallway. This exposure made Appellee sick and short of breath

again. Appellee was taken to the emergency room at Union Hospital, presenting with a

history of breathing an automatic spray deodorizer substance and being very short of Tuscarawas County, Case No. 2012 AP 05 0031 3

breath and coughing from a reaction on the previous day. Appellee was diagnosed with

"mild chemical pneumonitis".

{¶4} On June 28, 2006, Appellee Deborah Dewalt filed a claim with the Bureau

of Workers' Compensation ("BWC"), designated as Claim No. 06-839815, for chemical

pneumonitis, which was allowed by the Industrial Commission of Ohio ("ICO").

{¶5} On January 5, 2007, Appellant Tuscarawas County Health Department

filed its Notice of Appeal with the Tuscarawas County Court of Common Pleas

designated as Case No. 2007-CW-01-0006, appealing the order of the ICO allowing

Appellee's claim for chemical pneumonitis. (“Appeal One”).

{¶6} On February 1, 2007, Appellee Dewalt filed her Complaint, as required by

R.C. §4123.512.

{¶7} On January 29, 2007, Appellee filed a motion with the ICO to have her

claim further allowed for occupational asthma. The ICO granted Appellee's motion for

the additional condition.

{¶8} On July 16, 2007, Appellant filed a separate Notice of Appeal with the

Tuscarawas County Court of Common Pleas, designated as Case No. 2007-CW-07-

0515, appealing the order of the ICO allowing Appellee's claim for occupational asthma.

("Appeal Two").

{¶9} On August 9, 2007, Appellee filed her Complaint, pursuant R.C.

§4123.512.

{¶10} On October 3, 2007, Appellee filed a motion to consolidate Appeal Two

into Appeal One. The trial court denied the motion to consolidate. Tuscarawas County, Case No. 2012 AP 05 0031 4

{¶11} A jury trial in Appeal One seeking solely the condition of chemical

pneumonitis, resulted in a hung jury on November 14, 2007.

{¶12} On January 11, 2008, Appellee filed her second motion to consolidate. On

March 19, 2008, the trial court granted the motion to consolidate, thereby consolidating

Appeal Two (occupational asthma) into Appeal One (chemical pneumonitis).

{¶13} On March 9, 2010, Appellee filed a second motion with the ICO to have

her claim further allowed for toxic encephalopathy. The ICO granted Appellee's motion

for the additional condition.

{¶14} On December 8, 2010, Appellant filed a third Notice of Appeal with the

Tuscarawas County Court of Common Pleas, designated as Case No. 2010-CW-12-

1357, appealing the order of the ICO allowing Appellee's claim for toxic encephalopathy.

("Appeal Three").

{¶15} On December 29, 2010, Appellee filed her Complaint, pursuant to R.C.

§4123.512.

{¶16} On April 6, 2011, the trial court issued an order consolidating Appeal

Three (toxic encephalopathy) with Appeals One and Two.

{¶17} A second trial was set for April 3, 2012.

{¶18} On March 22, 2012, Appellee filed a motion to continue the trial due to

Appellee's medical expert being unavailable for trial. The trial court denied the

continuance.

{¶19} On March 29, 2012, Appellee filed a motion to sever Appeal Three (toxic

encephalopathy) from Appeal One (chemical pneumonitis). Appellee's motion to sever

was argued before the trial court on April 2, 2012. At the hearing, Appellee made an oral Tuscarawas County, Case No. 2012 AP 05 0031 5

motion to also sever Appeal Two (occupational asthma) from Appeal One (chemical

pneumonitis). At the conclusion of the hearing, the trial court granted Appellee's motion

to sever Appeals Two and Three from Appeal One.

{¶20} On April 2, 2012, Appellee filed separate Notices of Dismissal Without

Prejudice, pursuant to Civ.R. 41(A)(1), in Appeal Two (Case No. 2007-CW-07-0515)

and Appeal Three (Case No. 2010-CW-12-1357).

{¶21} On April 3, 2012, Appellee filed a Notice of Dismissal Without Prejudice,

pursuant to Civ.R. 41(A)(1), in Appeal One (Case No. 2007-CW-01-0006), which is the

subject of this appeal.

{¶22} On April 4, 2012, the trial court filed an Entry granting Appellee's motions

to sever Appeals Two and Three from Appeal One. The trial court further ordered that

"the jury trial commencing on April 3, 2012, was cancelled upon [Appellee's] oral

communication that [she] would be filing a notice of dismissal under Civ.R. 41(A) in the

above-referenced consolidated cases."

{¶23} Appellant now appeals, raising the following assignment of error:

ASSIGNMENT OF ERROR

{¶24} “I. PLAINTIFF’S DISMISSAL FILED APRIL 3, 2012, MUST BE DEEMED

WITH PREJUDICE, AND ON THE MERITS, THUS NOT SUBJECT TO REFILING ON

THE AUTHORITY OF OHIO CIVIL RULE 41(A) AND THE AUTHORITY OF

SCHWERING V. TRW VEHICLE SAFETY SYS.

.”

I.

{¶25} Before we address the merits of Appellant’s assignment of error, we must

first resolve a threshold jurisdictional issue. Ohio courts of appeals have appellate Tuscarawas County, Case No. 2012 AP 05 0031 6

jurisdiction over “final appealable orders.” Section 3(B)(2), Article IV of the Ohio

Constitution. If a judgment appealed is not a final order, an appellate court has no

jurisdiction to consider it and the appeal must be dismissed. See Davison v. Rini,

,

(4th Dist. 1996); Prod. Credit Assn. v. Hedges,

,

(4th Dist. 1993); Kouns v. Pemberton,

,

(4th Dist. 1992). Furthermore, if the parties

themselves do not raise a jurisdictional issue on appeal, an appellate court is required

to raise them sua sponte. See In re Murray,

, 159–160,

(1990); Whitaker–Merrell v. Geupel Co.,

,

(1972).

{¶26} A final order is one that, inter alia, affects a substantial right and, in effect,

determines the judgment. A judgment satisfies Civ.R. 54(B) only “upon an express

determination that there is no just reason for delay ...”

{¶27} Here, Appellee filed a Civ.R. 41(A) voluntary dismissal of the appeal from

the order of the ICO allowing her claim for chemical pneumonitis.

{¶28} A plaintiff's notice of voluntary dismissal made pursuant to Civ.R. 41(A)(1)

is self-executing; it requires no court action and is effective on the date of filing. James

v. Allstate Ins. Co. (March 16, 2000), Cuyahoga App.No. 75993,

(additional citations omitted). Generally, where a case has been voluntarily dismissed

under Civ.R. 41(A)(1), the trial court patently and unambiguously lacks jurisdiction to

proceed. See State ex rel. Hummel v. Sadler,

,

, 2002-

Ohio-3605, ¶ 22 Tuscarawas County, Case No. 2012 AP 05 0031 7

{¶29} The Supreme Court of Ohio has stated that a voluntary dismissal without

prejudice under Civ.R. 41(A) renders the parties as if no suit had ever been filed.

Denham v. New Carlisle (1999),

,

.

{¶30} Consequently, a voluntary dismissal pursuant to Civ.R. 41(A) does not

adjudicate the merits of a claim, does not produce a prevailing party, and does not end

in a final appealable order. Champion Mall Corp. v. Bilbo Freight Lines, Inc.,

,

(1992)

{¶31} Based on the foregoing, we find that this Court lacks jurisdiction to

entertain this appeal.

{¶32} Appellant’s appeal is dismissed.

{¶33} Based on the foregoing disposition of this appeal, we find Plaintiff-

Appellee Deborah Dewalt’s Motion to Strike the Affidavit of Larry Sanford, attached to

Appellant Tuscarawas County Health Department’s Reply Brief, to be moot.

By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.

___________________________________

___________________________________

___________________________________

JUDGES JWW/d 1025 Tuscarawas County, Case No. 2012 AP 05 0031 8

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

DEBORAH DEWALT : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TUSCARAWAS COUNTY HEALTH DEPT. : : Defendant-Appellant : and : : ADMINISTRATOR, BUREAU : OF WORKERS' COMPENSATION : : Defendant-Appellee : Case No. 2012 AP 05 0031

For the reasons stated in our accompanying Memorandum-Opinion, this Court

lacks jurisdiction and dismissed this appeal.

Costs assessed to Appellant.

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JUDGES