[Cite as Nykiel v. Northcoast Moving Ents.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97009

ROBERT NYKIEL PLAINTIFF-APPELLEE

vs.

NORTHCOAST MOVING ENTERPRISES, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-673066

BEFORE: Sweeney, P.J., Jones, J., and Kilbane, J.

RELEASED AND JOURNALIZED: January 26, 2012

ATTORNEY FOR APPELLANT Christopher J. Shaw, Esq. 1487 Belle Avenue Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

David P. Thomas, Esq. Cooper & Thomas 801 Terminal Tower Cleveland, Ohio 44113

Naveen Ramprasad, Esq. Assistant Attorney General Vincent T. Lombardo, Esq. Assistant Attorney General State Office Building, 11th Floor 615 West Superior Avenue Cleveland, Ohio 44113-1899

JAMES J. SWEENEY, P.J.:

{¶ 1} Defendant-appellant Northcoast Moving Enterprises, Inc. (“Northcoast”)

appeals the court’s denial of its motion for judgment on the pleadings in this workers’

compensation case. After reviewing the facts of the case and pertinent law, we reverse

the trial court’s judgment.

{¶ 2} In April 2008, plaintiff-appellee Robert Nykiel was injured while working

for Northcoast. Nykiel filed a workers’ compensation claim, which was ultimately

allowed. Pursuant to R.C. 4123.512, Northcoast filed a notice of appeal in the common

pleas court, and on November 14, 2008, Nykiel filed his complaint. On August 5, 2009, Nykiel filed a notice of voluntary dismissal without prejudice under Civ.R. 41(A)(1),

which the court granted on August 24, 2009.

{¶ 3} The next docket entry in this case was on May 9, 2011, when Northcoast

filed a motion for judgment on the pleadings based on Nykiel’s failure to re-file his

complaint within the one-year saving clause pursuant to R.C. 2305.19. The motion was

unopposed; however, the court summarily denied it on June 10, 2011.

{¶ 4} Northcoast appeals and raises one assignment of error for our review.

{¶ 5} I. “The trial court erred by not granting Defendant-Appellant’s,

Northcoast Moving Enterprises, Inc., Motion for Judgment on the Pleadings when

Northcoast was the appealing party to Common Pleas Court from a decision adverse to it

by the Industrial Commission of Ohio, and Plaintiff-Appellee, Robert Nykiel, filed his

Complaint and subsequently filed a Voluntary Dismissal, but never refiled his Complaint

within the time required by statute.”

{¶ 6} Pursuant to Civ.R.12(C), “After the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.”

Motions for judgment on the pleadings are “specifically for resolving questions of law,”

and the court “must construe as true all of the material allegations in the complaint [and

answer], with all reasonable inferences to be drawn therefrom, in favor of the nonmoving

party.” Thornton v. Cleveland,

,

,

(8th Dist.). We review a court’s ruling on motions for judgment on the

pleadings under a de novo standard.

{¶ 7} In Thorton v. Montville Plastics & Rubber, Inc.,

,

,

, the Ohio Supreme Court summarized the law regarding

R.C. 2305.19’s one-year saving clause as applied to workers’ compensation appeals under

R.C. 4123.512. The court stated that “‘[i]n an employer-initiated workers’

compensation appeal,”’ after an employee voluntarily dismisses a workers’ compensation

complaint under Civ.R. 41(A), “‘if the employee-claimant fails to refile within the year

allowed by the saving statute, R.C. 2305.19, the employer is entitled to judgment * * *.’”

(Quoting Fowee v. Wesley Hall, Inc.,

,

,

, syllabus.)

{¶ 8} This court had previously reached the same conclusion in Smith v.

Continental Airlines, Inc., 8th Dist. No. 81010,

,

,

relying on Kaiser v. Ameritemps, Inc.,

,

(1999). In

Kaiser, the Ohio Supreme Court established that the trial court retained jurisdiction over

an employer’s notice of appeal in a workers’ compensation claim, even after an

employee’s voluntary dismissal under Civ.R. 41(A), to prevent the employee from

perpetually delaying refiling his or her complaint.

.

{¶ 9} The instant case is procedurally similar to Smith. Nykiel failed to re-file

his dismissed complaint within the one-year prescribed in R.C. 2305.19. Given the body

of law discussed above, we must hold that the court erred in denying Northcoast’s motion

for judgment on the pleadings. Northcoast’s sole assignment of error is sustained. {¶ 10} Judgment reversed, and case remanded to the trial court for entry of

judgment on the pleadings in favor of Northcoast.

It is, therefore, considered that said appellant recover of said appellee its 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.

JAMES J. SWEENEY, PRESIDING JUDGE

LARRY A. JONES, J., and MARY EILEEN KILBANE, J., CONCUR