IN THE SUPREME COURT OF OHIO. CHAMPAGNE COUNTY COURT, SECOND APPELLATE DISTRICT and

Transcription

1 IN THE SUPREME COURT OF OHIO Glenda S. Hall-Davis, Appellant, SUPREME COURT CASE NO V. ON APPEAL FROM THE Honeywell, Inc., CHAMPAGNE COUNTY COURT, SECOND APPELLATE DISTRICT and Administrator, Bureau of Workers Compensation, Appellees. COURT OF APPEALS CASE NO CAl APPELLEE, HONEYWELL, INC.'s MEMORANDUM IN OPPOSITION TO JURISDICTION ARTHUR C. GRAVES ( ) ARTHUR C. GRAVES CO., L.P.A KENNY ROAD SUITE 295 COLUMBUS, OHIO COUNSEL FOR PLAINTIFF GLENDA McQUINN-HALL-DAVIS ANDREW S. ADAMS ( ) CHRISTOPHER R. WALSH ( ) (Counsel of Record) EARL, WARBURTON, ADAMS & DAVIS 136 W. MOUND STREET COLUMBUS, OH COUNSEL FOR DEFENDANT, HONEYWELL, INC. WILLIAM CREEDON ( ) ASSISTANT ATTORNEY GENERAL WORKERS' COMPENSATION SECTION 150 EAST GAY STREET, 22ND FLOOR COLUMBUS, OHIO COUNSEL FOR DEFENDANT, ADMINISTRATOR BUREAU OF WORKERS COMPENSATION A il]h' G01".rN Qr cnurr ^i11'rfmg CaJRT 017 UHIo,^^.^..._

2 TABLE OF CONTENTS EXPLANATION AS TO WHY THIS CASE IS NOT ONE OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITION OF LAW APPELLANT'S PROPOSITION OF LAW: "When two workers' compensation cases have been consolidated for trial and later dismissed without prejudice, the re-filing of one complaint is sufficient to confer jurisdiction on the trial court of both dismissed complaints." CONCLUSION CERTIFICATE OF SERVICE ii

3 EXPLANATION AS TO WHY THIS CASE IS NOT ONE OF PUBLIC OR GREAT GENERAL INTEREST Appellant, Glenda S. Hall-Davis' Memorandum in Support of Jurisdiction fails to set forth a compelling explanation as to why this Court should accept jurisdiction. In fact, there are no compelling issues in this case which would justify this Court accepting jurisdiction. While Appellant attempts to assert Ohio Rule of Civil Procedure 42(A) as providing a reason for this Court to accept jurisdiction, it should be noted that this rule has been consistently interpreted by all of the Appellate districts which have reached the issue of consolidation ever since it was first addressed by the Lorain County Court of Appeals in See Transcon Bldrs.. Inc., v. Lorain, 49 Ohio App. 2d 145 (1976). See also Gates v. Berger, Franklin App. No. 96 APE04-544, 96-LW-5561 (November 21, 1996); Rhodes v. Miller, Trumbull App. No. 95-T- 5288, 96-LW-5687 (November 15, 1996); Rothman v. Lehman, Hamilton App. No. C , 95-LW-0003 (September 27, 1995); and Carvell v. Cozar, Cuyahoga App. No , 89-LW (June 22, 1989). In finding that consolidated actions retained their separate identity, the Transcon Court relied upon a 1933 United States Supreme Court case which interpreted a Federal statute similar in language to Ohio Rule of Civil Procedure 42(A). "[C]onsolidation is permitted as a matter of convenience and economy and administration, but does not merge the suits into a single cause or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496 (1933). The Transcon Court also noted the similarity of the language of Ohio Rule of Civil Procedure 42 with that of the Federal rule of Civil Procedure 42 as well as the multiple Federal Courts and treatises which have similarly 1

4 noted that a consolidated case retains its separate identity. Transcon, 49 Ohio App. 2d at 150. Since there is currently no dispute or confusion among the various appellate districts as to the impact of consolidation upon separate actions, there is no issue of public or great general interest present in this particular case. STATEMENT OF THE CASE AND FACTS On October 10, 2003, Defendant, Appellee, Honeywell, Inc., (hereinafter Honeywell) filed a Notice of Appeal in the Court of Common Pleas of Champagne County from a decision of the Industrial Commission of Ohio granting Plaintiff-Appellant, Glenda S. Hall- Davis'(hereinafter Plaintiff) request to participate in the workers' compensation fund for the condition of reflex sympathetic dystrophy of the upper extremities. This case was denominated in the trial court as case number 03CV288. Plaintiff timely filed a petition as required by Ohio Revised Code , Honeywell answered, and discovery commenced. During the pendency of case number 03CV288, Plaintiff filed a new request with the Industrial Connnission that she be entitled to participate in the fund for the condition of reflex sympathetic dystrophy of the lower extremities. The Industrial Commission granted the motion and Honeywell appealed to the Champagne County Court of Common Pleas. This Notice of Appeal was filed on Apri120, 2005 and was denominated by the court as case number 05CV 113. Plaintiff again filed a timely petition as required by Ohio Revised Code , Honeywell answered, and discovery was commenced as to this new case. On July 5, 2005, Honeywell filed a motion with the trial court requesting that both aforementioned cases be consolidated. This motion was not opposed and the cases were consolidated by order of the court dated July 26, Following this, Plaintiff filed a voluntary -j 2

5 dismissal without prejudice pursuant to Ohio Rule of Civil Procedure 41(A)(1)(a) on August 11, 2005 in both cases. On August 3, 2006, Plaintiff re-filed previously dismissed case number 05CV 113, which case was now denominated by the Clerk of Court as case number 06CV220. This re-filed complaint requested participation in the workers' compensation fund for the condition of reflex sympathetic dystrophy of the lower extremities only. On December 29, 2006 Honeywell filed a motion for judgment in case number 03CV288 on the basis that Plaintiff failed to timely re-file her complaint from that previously dismissed case. Plaintiff responded by opposing the motion and filing a motion for leave to file an amended complaint in case number 06CV220. On January 11, 2008, the trial court granted Honeywell's motion for judgment as to the condition of reflex sympathetic dystrophy of the upper extremities and denied Plaintiff's motion to amend the 2006 re-filed complaint for that condition. Plaintiff appealed and the Court of Appeals affirmed the trial court's decisions. ARGUMENT IN OPPOSITION TO PPELLANT'S PROPOSITION OF LAW APPELLANT'S PROPOSITION OF LAW: "When two workers' compensation cases have been consolidated for trial and later dismissed without prejudice, the re-filing of one complaint is sufficient to confer jurisdiction on the trial court of both dismissed complaints." Had Appellant included the phrase "where the re-filed complaint includes all allegations from both previously dismissed complaints", Honeywell would not have any particular quarrel with that proposition of law. However, it should be pointed out that Appellant's proposition of law is not complete as it does not address the specific situation in the instant case. In the instant case, Plaintiff timely re-filed a complaint alleging a right to participate in the workers' compensation fund for the condition of reflex sympathetic dystrophy of the lower 3

6 extremities only. Had Plaintiff alleged in that same complaint a right to participate in the workers' compensation fund for the condition of reflex sympathetic dystrophy of the upper extremities, Honeywell would not have filed a motion for judgment as to that condition and the case would have proceeded to reach the merits of both conditions. It was the failure of Plaintiff to allege the condition of reflex sympathetic dystrophy of the upper extremities in her re-filed complaint which caused Honeywell to file a motion for judgment. Even then, Plaintiff was given the opportunity to cure this defect by filing a motion to amend pursuant to Ohio Rule of Civil Procedure 15(A) and ( C). While Plaintiff filed such a motion, she failed to support the motion as required by Ohio law. In this particular case, it is important to point out that since the one year time period for re-filing the 2003 complaint passed on August 11, 2006, any motion to amend the complaint filed on August 3, 2006 would need to relate back to that re-filed complaint before any new allegations could be considered timely. This implicates Ohio Rule of Civil Procedure 15( C). Before causes of action asserted in an amended complaint may relate back to the originally filed complaint, the new cause of action must establish that it arose out of the conduct described in the original complaint. Ohio law provides: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. Ohio R. Civ. P. 15( C). This language has led Ohio Courts require a showing that "the pleading, as amended, relates to the same conduct, transaction or occurrence set forth in the original pleading ***." Columbus Bd. of Edn. v. Armstrong World Histories. Inc., 89 Ohio App. 3d 846, 855 (1994), citing Beavercreek Local Schools v. Basic. Inc., 71 Ohio App. 3d 669, 690 4

7 (1991) (other citations omitted) Thus, where the new cause of action in the amended complaint arose out of the same occurrence as described in the original complaint, the amended claim would relate back to the filing of the original complaint. However, where the new cause of action does not arise out of the conduct set forth in the original complaint, the new cause of action would not relate back and could only be considered if the amended complaint was filed within the appropriate statute of limitations. As both the trial court and the Court of Appeals correctly noted, at no time did Plaintiff argue that the conduct, transaction, or occurrence which allegedly caused the lower extremities reflex sympathetic dystrophy also caused the upper extremities reflex sympathetic dystrophy. Given that failure, the trial court and the Court of Appeals had no other option but deny Plaintiff's motion to amend. Finally, there does not appear to be any language in any of the Ohio Rules of Civil Procedure which would preclude combining two separately dismissed complaints into a re-filed single complaint. Had Plaintiff done so in the instant case, no objection would have been heard from Honeywell. Thus, Plaintiff's proposition of law is incomplete as it does not reference the statutory requirement that facts be set forth in the complaint showing a right to participate in the fund. Given this, it should be rejected by this Court. CONCLUSION Plaintiff has failed to set forth any reason as to why this case is one of public or great general interest. Ohio Rule of Civil Procedure 42 has now been around for almost 40 years and the Courts of Appeal which have had an opportunity to interpret this rule have done so consistently. Furthennore, Plaintiff had the opportunity pursuant to Ohio Rule of Civil 5

8 Procedure 15 to make the requisite showing which would have allowed her to amend the complaint which had been timely filed to include the condition of reflex sympathetic dystrophy of the upper extremities. However, Plaintiff failed to make the appropriate showing and the trial court correctly denied Plaintiffs' motion. Given this, Honeywell respectfully requests that this Court deny jurisdiction in the above case. Respectfully submitted, EARL, WARBURTON, ADAMS & DAVIS CERTIFICATE OF SERVICE Christopher R. Walsh ( ) Attorney for Defendant, Honeywell, Inc. 136 W. Mound Street Columbus, Ohio This is to certify that a true copy of the fore_going document was served by placing same in the regular U.S. Mail, postage prepaid, this J^d"^ day of April, 2009 to: Arthur Graves, Counsel for Plaintiff, 2929 Kenny Road, Suite 295, Columbus, Ohio William Creedon, Assistant Attorney General, 150 E. Gay Street, Columbus, Ohio Christopher R. Walsh ( ) 6