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IN THE SUPREME COURT OF OHIO
GLENDA S. HALL-DAVIS,
Appellant,
vs.
HONEYWELL, INC.,
and
On Appeal from theChampaign County Courtof Appeals, Second AppellateDistrict
Court of AppealsCase No. 2008CA2
ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION,
Appellees.
MEMORANDUM IN SUPPORT OF CLAIMED JURISDICTION OF APPELLANTGLENDA S. HALL-DAVIS
ARTHUR C. GRAVES (0031027)ARTHUR C. GRAVES CO., L.P.A.2929 KENNY ROADSUITE 295COLUMBUS, OHIO 43221(614) 442-7903
COUNSEL FOR PLAINTIFFGLENDA McQUINN HALL
ANDREW S. ADAMS (0011799)EARL, WARBURTON, ADAMS & DAVIS136 WEST MOUND STREETCOLUMBUS, OHIO 43215(614) 464-2392
COUNSEL FOR DEFENDANTHONEYWELL, INC.
WILLIAM CREEDON (0064931)ASSISTANT ATTORNEY GENERALWORKERS' COMPENSATION SECTION150 EAST GAY STREET, 22ND FLOORCOLUMBUS, OHIO 43215-3130(614) 466-6696
COUNSEL FOR DEFENDANT, ADMINISTRATOR ^^^®BUREAU OF WORKERS' COMPENSATION L1
h1AR 17 2009
CLERK OF COURTSUPREME COURT OF OHIO
TABLE OF CONTENTS
EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREATGENERAL INTEREST
STATEMENT OF THE CASE AND FACTS
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAWProposition of Law No. I:
When two Workers' Compensation cases have been consolidatedfor trial and later dismissed without prejudice, the refilling of onecomplaint is sufficient to confer jurisdiction on the trial court of bothdismissed complaints.
CONCLUSION
PROOF OF SERVICE
APPENDIX
3
4
5
8
8
9
(A) Opinion, Champaign County Court of Appeals 10
(B) Final Entry, Champaign County Court of Appeals 21
(C) Magistrate's Order, Champaign County Court of Appeals 23
(C) Judgment Entry, Champaign County Common Pleas Court 25
(D) Final Appealable Order, Champaign County Common Pleas Court 27
2
EXPLANATION OF WHY THIS CASE IS OF-PUBLICOR GREAT GENERAL INTEREST
Civil Rule 42(A) provides for consolidation of separate actions when "...a
common question of law or fact are pending before a court..."
This case involved an allowed Workers' Compensation claim number 00-43573
with a date of injury of January 5, 2000 in which the Plaintiff Glenda Hall-Davis is the
injured worker and Honeywell, Inc. is the employer.
The consolidated cases involved a single claim already allowed for several
conditions. The issues in court involved two additional conditions of reflex sympathetic
dystrophy upper extremity and reflex sympathetic dystrophy lower extremity.
The common questions of fact were whether or not both or either of these
medical conditions existed and whether both or either of these medical conditions were
directly and proximately caused by the original allowed claim.
Civil Rule 42(A) further directs that the court "...may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay."
Case number 2003CV288 was consolidated by the trial court with case number
2005CV1 13 which held that "for administrative purposes, case number 2003CV288 is
terminated by consolidation". The court further ordered that "all filings from this point
forward shall be in case number 2005CV113".
It is respectfully submitted that when this Court ordered that "AII filings from this
point forward shall be in case number 2005-CV-113", that this Order applies to any re-
filings.
Defendant's position would require Plaintiff to re-file not one, but two Complaints
with additional filing fees and additional docketing duties imposed upon the Champaign
3
County Clerk of Courts. This Court would then be required to issue a separate Journal
Entry, again consolidated these two new Complaints to accomplish the purposes set forth
in the original Journal Entry. In a similar situation, consolidated appeals were re-filed
under one appeal and proceeded accordingly. (See Bedinghaus v. Administrator, 1st
District Court of Appeals, Hamilton County, Ohio, Appeal No C-000468).
STATEMENT OF THE CASE AND FACTS
This matter involves the consolidation of two separate employer's appeals of
allowed additional conditions in PlaintifPs claim number 00-435973 in which the Plaintiff,
Glenda Hall-Davis is the injured worker and Honeywell, Inc. is the employer with a date of
injury of January 5, 2000.
A Notice of Appeal and Complaint was filed with this Court in case number 03-CV-
288 which involved the employer's appeal from an order of additional allowance of "reflex
sympathetic dystrophy of both upper extremities". A second Notice of Appeal and
Complaint was filed with this Court in case number 05-CV-113 by the employer contesting
the additional allowance of "reflex dystrophy of the lower extremities".
Thereafter, this Court on July 26, 2005 filed a Judgment Entry consolidating these
two cases and terminating by consolidation case number 2003-CV-288. The Court further
ordered that "All fillings from this point forward shall be in case number 2005-CV-1 13" (See
Exhibit A). Although Notices of Dismissal without Prejudice were filed in both cases,
Plaintiff re-filed only the consolidated case number 2005-CV-1 13 in the instant case.
However, Plaintiff failed to include the condition of "reflex sympathetic dystrophy of both
upper extremities" in the re-filed case.
Thereafter, Defendant, Honeywell, Inc. filed a motion for summary judgment in the
4
pleadings claiming Plaintiff had failed to re-file her complaint within one year of the
dismissal of the complaint in case number 2003CV288.
Plaintiff filed a motion for leave to file an amended complaint in the re-filed case
number 2006CV220 to add the condition of "reflex sympathetic dystrophy both upper
extremeties".
Thereafter, on January 11, 2008 the trial court issued an order granting Honeywell's
motion for summary judgment and overruled Plaintiffs motion for leave to file an amended
complaint.
The Plaintiff then filed Notices of Appeal to the Court of Appeals of Champaign
County, Ohio which were consolidated by Magistrates order dated August 7, 2008.
In an opinion and judgment entry filed February 6, 2009, that court affirmed the
judgment of the trial court.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law No. I:
WHEN TWO WORKERS' COMPENSATION CASES HAVE BEENCONSOLIDATED FOR TRIAL AND LATER DISMISSEDWITHOUT PREJUDICE, THE REFILLING OF ONE COMPLAINTIS SUFFICIENT TO CONFER JURISDICTION ON THE TRIALCOURT OF BOTH DISMISSED COMPLAINTS.
Plaintiff timely re-filed case number 2005-CV-1 13 in the instant case. Although
Plaintiff filed separate Notices of Voluntary Dismissal in both cases, Plaintiff re-filed only
the consolidated case 2005-CV-113. It is respectfully submitted that when this Court
ordered that "All filings from this point forward shall be in case number 2005-CV-113", that
this Order applies to any re-filings.
Defendant's position would require Plaintiff to re-file not one, but two Complaints
5
with additional filing fees and additional docketing duties imposed upon the Champaign
County Clerk of Courts. This Court would then be required to issue a separate Journal
Entry, again consolidated these two new Complaints to accomplish the purposes set forth
in the original Journal Entry. In a similar situation, consolidated appeals were re-filed
under one appeal and proceeded accordingly. (See Bedinghaus v. Administrator, 1st
District Court of Appeals, Hamilton County, Ohio, Appeal No C-000468).
Either party could have included both orders of the Industrial Commission in one
appeal to Court if the orders would have each been made in the same 60 day appeal
period (State ex rel Republic Steel Corporation v. Quinn, 12 Ohio St. 3rd 57).
Presumably, both orders granting two separate medical conditions for the same
industrial accident would have been heard and determined by one jury completing two
separate verdict forms.
Most court appeals in Workers' Compensation matters involve more than one
medical condition. Juries frequently are called upon to determine the claimant's right to
participate in the Workers' Compensation Fund for injuries to separate body parts or
separate injuries to the same body part.
Separate appeals for separate injuries and medical conditions arising from the
same injury have never been mandated.
The consolidation for trial of two separate medical conditions arising out of the
same industrial injury are commonplace in Ohio Workers' Compensation.
The within consolidated trial of upper extremity reflex sympathetic dystrophy and
lower extremity reflex sympathetic dystrophy would not have involved bifurcation, nor
resulted in a verdict not dispositive of all issues as problematic in Transcon and Hausman.
6
Once joined for trial, the within cases would not have been severed and would have
proceeded for submission of both issues to one jury for final judgment.
Unlike a typical civil action, Workers' Compensation court appeals are contolled by
Revised Code Section 4123-512 which provides that a notice of appeal shall be filed within
60 days of the final administrative order.
The proper filing of the notice of appeal perfects jurisdiction in the trial court. The
filing of a complaint is to be filed within 30 days thereafter. But the filing of the complaint
does not confer jurisdiction (see Rice v. Stouffer Foods Corp., 81h Appellate District, 1997
Ohio App., Lexis 4872).
Plaintiff requested leave of court to remedy the situation by filing an amended
complaint including both alleged conditions of reflex sympathetic dystrophy of the upper
and lower extremities.
Civil Rule 15 contemplates amendments to conform to the evidence and provides
that "leave of court shall be freely given when justice so requires."
7
CONCLUSION
For the reasons set forth above, this case involves matters of public and great
general interest. The appellant requests that this Court grant jurisdiction and allow this
case so that the important issues presented in this case will be reviewed on the merits.
Respectfully Submitted,
LGGL GGtt C Cr.JD
Art hur C. GravesRegistration No. 00310272929 Kenny RoadSuite 295Columbus, Ohio 43221(614) 442-7903Attorney for Glenda S. Hall-Davis
PROOF OF SERVICE
This is to certify that a copy of the foregoing was served upon Andrew S. Adams,
136 West Mound Street, Columbus, Ohio 43215 and upon William Creedon, Assistant
Attorney General, 150 East Gay Street, 22"d Floor, Columbus, Ohio 43215-3130 by&4-
regular U.S. mail this ^7 day of March 2008.
Arthur C. Graves
8
APPENDIX
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
GLENDA.S. HALL-DAVIS
Plaintiff-Appellant C.A. CASE NO. 2008 CA 12008 CA 2
V. T.C. NO: 2006 CV 220
HONEYWELL, INC., et al. : (Civil appeal fromCommon Pleas Court)
Defendants-Appellees
Rendered on the
OPINION
6th day of February , 2009.
ARTHUR C. GRAVES, Atty. Reg. No. 0031027, 2929 Kenny Road, Suite 295, Columbus,Ohio 43221
Attorney for Plaintiff-Appellant
ANDREW S. ADAMS, Atty. Reg. No. 0011799 and CHRISTOPHER R. WALSH, Atty. Reg.No. 0065257, 136 West Mount Street, Columbus, Ohio 43215
Attorneys for Defendant-Appellee Honeywell, Inc.
WILLIAM CREEDON, Atty. Reg. No. 0064931, Assistant Attorney General, Workers'Compensation Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215
Attorney for Administor Bureau of Workers' Compensation
DONOVAN, P.J.
THE COURT OF APPEALS OF 0I110SECOND APPELLATE DISTRICT
2
This matter is before the Court on the consolidated Notices of Appeal of Glenda S.
Hall-Davis, filed February 8, 2008. On or about January 5, 2000, Hall-Davis was injured
at herworkplace, Honeywell, Inc. ("Honeywell"). Hall-Davis filed a workers' compensation
claim with the Industrial Commission, and it was allowed for herniated discs at C5-6, C6-7,
aggravation of osteophytic formation at C5-6, and cervical stenosis at C5-6. Hall-Davis
later filed. a motion with the Industrial Commission to add the condition of reflex
sympathetic dystrophy of both upper extremities, and the Industrial Commission granted
her request. Honeywell appealed this decision to the Champaign County Court of
Common Pleas, case number 2003 CV 288. Hall-Davis then timely filed a Complaint,
pursuant to R.C. 4123.512, alleging a cause of action entitling her to participate in the
workers' compensation fund for the condition of reflex sympathetic dystrophy of the upper
extremities.
While case number 2003 CV 288 was pending, Hall-Davis filed a motion with the
Industrial Commission requesting that the condition of reflex sympathetic dystrophy of the
lower extremities be allowed, and the Industrial Commission granted her request.
Honeywell again appealed to the Champaign County Court of Common Pleas, in case
number 2005 CV 113. Hall-Davis filed a timely Complaint.
On July 5, 2005, Honeywell moved to consolidate the two matters. On July 26,
2005, the trial court issued a Journal Entry that provided, "'"" the two cases are
consolidated for trial. All filings from this point forward shall be in Case Number 2005-CV-
113.
"For administrative purposes Case Number 2003 CV 288 is terminated by
consolidation."
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
3
On August 11, 2005, Hall-Davis voluntarily dismissed both matters pursuant to
Civ.R. 41(A)(1)(a). On August 3, 2006, Hall-Davis refiled one Complaint that provided,
1. '"" she voluntarily dismissed her complaint without prejudice in case No. 05 CV 113,
and pursuant to R.C. Section 2305.19, hereby recommences said action.
'4. Plaintiff states that on January 5, 2000, she sustained an injury in the course of and
arising out of her employment that she filed her claim with the Bureau of Workers'
Compensation, that her claim has been designated as claim No. 00-435973 and has been
allowed for the condition of herniated discs at C5-6, C6-7; aggravation of osteophytic
formation at C5-6 and reflex sympathetic dystrophy of the upper extremities.
"5. Plaintiff states that on September 16,2004, she filed a motion requesting that her claim
be amended to include the additional condition of reflex sympathetic dystrophy of the lower
extremities on a flow through basis as a result of spreading from the upper extremities.
"6. Plaintiff statesthat on January29, 2005, a staff hearing officer issued an order granting
hermotion and amending her claim to include the additional condition of reflex sympathetic
dystrophy of the lower extremities.
"Wherefore, Plaintiff demands judgment against defendants and prays that she be
permitted to continue to participate in the State Insurance Fund for the additional condition
of reflex sympathetic dystrophy of the lower extremities, The matter was assigned
Case Number 2006 CV 220.
On December 29, 2006, Honeywell filed a Motion for Judgment, arguing that it "is
entitled to judgment on the pleadings as Plaintiff has failed to refile her complaint within
taTHE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
4
one year of her dismissal of that complaint in case no. 2003 CV 288." On January 18,
2007, Hall-Davis filed a Memorandum Contra Honeywell's Motion.
On January 18, 2007, Hall-Davis filed a Motion for Leave to File Amended
Complaint "to add the additional condition of 'reflex sympathetic dystrophy of both upper
extremities' pursuant to the provisions of Civil Rule 15."
On January 11, 2008, the trial court issued an Order granting Honeywell's Motion
for Judgment and overruling Hall-Davis' Motion for Leave to File an Amended Complaint.
Regarding Honeywell's motion forjudgment, the court determined, "Plaintiff failed to refile
her claim for reflex sympathetic dystrophy of the upper extremities (the 2003 CV 288 claim)
within the one year period prescribed by the savings statute, R.C. §2305.19." The trial
court determined that consolidated cases do not merge into a single case but maintain
their "original" identities. The trial court also noted that Hall-Davis "dismissed her
complaints in Case Numbers 2003 CV 288 and 2005 CV 113 on August 11, 2005. Said
dismissals were accomplished by separate notices of dismissal, each individually
captioned and filed in Case Numbers 2003 CV 288 and 2005 CV 113 respectively."
The court observed that Hall-Davis' complaint in Case No. 2006 CV 220 provides,
"it is a recommencement of 'case No. 05 CV 113.' Except for a few minor changes, the
2006 Complaint is identical to the 2005 Complaint. The 2006 Complaint does briefly
mention that the condition of 'reflex sympathetic dystrophy of both upper extremities' has
been allowed at the administrative level. "* *
"However, the 2006 Complaint fails to state that it is a recommencement of 2003
CV 288 pursuant to R.C. 2305.19. The 2006 Complaint fails to even seek participation for
reflex sympathetic dystrophy of both upper extremities, limiting the injuries for which
13THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
5
Plaintiff seeks relief to reflex sympathetic dystrophy of the lower extremities.
"As Plaintiff has failed to refile her 2003 complaint regarding reflex sympathetic
dystrophy of the upper extremities within the one year prescribed by R.C. §2305.19,
Defendant Honeywell is entitled to judgment in its favor in Case No. 2003 CV 288. * ""
Plaintiff's proposed amended complaint, "" is insufficient to recommence the 2003 claim
for reflex sympathetic dystrophy of the upper extremities."
In overruling Hall-Davis' motion to amend her complaint, the trial court determined,
"Plaintiff may not amend her complaint to reinstate Case Number 2003 CV 288 when that
case was not timely filed within the one year period provided by R.C. §2305.19. Plaintiff
has failed to demonstrate that the 2003 claim and the refiled 2005 claim arose out of the
same transaction, occurrence, or conduct. "" Case Numbers 2003 CV 288 and 2005 CV
113 retained their individual identities, involve separate appeals from separate Industrial
Commission determinations, and involve separate claims for distinct injuries or conditions."
The court concluded, "Case Number 2003 CV 288 is terminated," noting, "Case Number
2003 (sic) CV 220 still remains pending fortrial on the issue of Plaintiff's participation in the
State Insurance Fund for the condition of reflex sympathetic dystrophy of the lower
extremities (the 2005 claim that was successfully refiled in 2003 (sic) CV 220)."
Hall filed a Notice of Appeal from Case Number 2003 CV 288 and a Notice of
Appeal from Case Number 2006 CV 220 on February 8, 2008, and she has filed separate
briefs. Honeywell filed a " Combined Appellate Brief."
We will first address Hall-Davis' sole assignment of error in Case No. 2008-CA-002.
It is as follows:
"THE TRIAL COURT ERRED IN GRANTING DEFENDANT, HONEYWELL'S MOTION
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
6
FOR JUDGMENT."
Civ.R. 12(C) provides, "After the pleadings are closed but within such time as not
to delay the trial, any party may move for judgment on the pleadings." "'A motion for
judgment on the pleadings pursuant to Civ.R. 12(C) presents only questions of law,' and
the standard of review is de novo." (Internal citation omitted). lnskeep v. Burton,
Champaign App. No. 2007 CA 11, 2008-Ohio-1982.
R.C. 2305.19, the saving statute, provides, "in any action that is commenced or
attempted to be commenced, if in due time the plaintiff fails otherwise than upon the
merits, the plaintiff **` may commence a new action within one year after the date of
* the plaintiff's failure otherwise than upon the merits or within the period of the original
applicable statute of limitations, whichever occurs later."
The Supreme Court of Ohio has determined, "in an employer-initiated workers'
compensation appeal, after the employee-claimant files the petition as required by R.C.
4123.512 and voluntarily dismisses it as allowed by 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 on its appeal." Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533, 844
N.E.2d 1193, 2006-Ohio-1712, 1119.
As the trial court correctly noted, we have previously held, "causes, though
consolidated, maintain their separate character, and do not make a single multipie party,
multiple claim action." Hausman v. City of Dayton (Dec. 22, 1993), Montgomery App. No.
13647, affirmed in part, reversed in part on other grounds (1995), 73 Ohio St.3d 671, 653
N. E.2d 1190. In Hausman, the trial court entered judgment on three administrative appeals
and two declaratory judgment actions that were consolidated, but not on pending cross-
lsTHE COURT OF APPEALS OFOH10
SECOND APPELLATE DISTRICT
7
and counterclaims. Various appeals followed that were consolidated for review.
Defendant City of Dayton argued "that with the cross-claims and counterclaims pending,
the judgments in the administrative appeals and the declaratory judgment actions [were]
not final and appealable."
We began by noting that "the finality of each of these actions is not affected by the
fact that they were consolidated for trial; the individual character of each action was not
extinguished." We followed the rationale set forth in Transcon Builders, Inc. v Lorain
(1976), 49 Ohio App.2d 145, 359 N.E.2d 715, "in which the Court of Appeals for Lorain
County was presented with a procedural scenario very much like the one we have before
us. Transcon appealed from an adverse decision of a municipal administrative board to
the court of common pleas, and at the same time brought a complaint seeking declaratory
and injunctive relief. These actions were consolidated for trial.
"On motion of the City of Lorain, the consolidated actions were all dismissed
because the trial court found that Transcon had not properly brought the action for
declaratory judgment. Transcon protested that its administrative appeal was still pending
and that even if the declaratory action had not been properly brought, only that action
should have been dismissed, and not the entire consolidated matter.
"The court of appeals agreed, adopting the reasoning expressed in Johnson v.
Manhattan Ry. Co. (1933), 289 U.S. 479, 496, that'consolidation is permitted as a matter
of convenience and economy in 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.' Transcon Builders, Inc. supra, at 150. See also Townsend v. Downing (1989),
58 Ohio App.3d 59, fn. 1; and Kraft, Inc. v. Local Union 327. Teamsters, etc. (C.A.6, 1982),
ITHE COURT OF APPEALS OF OH10
SECOND APPELLATE DISTRICT
8
683 F.2d 131, 133, in which the court concluded that the consolidation of the two causes
involved in that case 'did not merge the suits into a single cause.'
"In following the reasoning of these cases, we differ[ed] from the Court of Appeals
for Cuyahoga County, which has treated actions, once consolidated, as forming a single,
multiple party, multiple claim suit. That court held that no appeal from any consolidated
actions could be had until each claim as to every party in every action had been disposed
of, absent a finding of 'no just reason for delay' pursuant to Civ.R. 54(B). Bender v.
Diemart (Mar. 21, 1991), Cuyahoga App. Nos. 58304 and 58368, unreported." We went
on to "consider the finality of each of the three administrative appeals and each of the
actions for declaratory judgment separately."
Hall-Davis refiled her complaint in case number 2005 CV 113, praying only that she
"be permitted to continue to participate in the State Insurance Fund for the additional
condition of reflex sympathetic dystrophy of the lower extremities." Hall-Davis failed to
refile her complaint in Case No. 2003 CV 288 within the period provided by the saving
statute. That the "individual character of each action is not extinguished by consolidation,"
further defeats Hall-Davis' proposed amended complaint, discussed below, even if it were
timely filed, because by its terms it attempts to recommence case number 2005 CV 113.
Honeywell, as the trial court correctly concluded, was entitled to judgment on the pleadings
on Hall-Davis' cause of action for reflex sympathetic dystrophy of the upper extremities.
Hall-Davis' assignment of error is overruled.
In Case No. 2008-CA-001, Hall asserts one assignment of error as follows:
"THE TRIAL COURT ERRED IN DECLINING TO GRANT PLAINTIFF'S MOTION
LiTHE COURT OF APPEALS OF 01-110
SECOND APPELLATE DISTRICT
9
FOR LEAVE TO FILE AMENDED COMPLAINT."
"The language of Civ.R. 15(A) favors a liberal policy when the trial judge is
confronted with a motion to amend a pleading beyond the time limit when such
amendments are automatically allowed. '"'` Leave of court shall be freely given when
justice so requires "",' the rule states. This court's role is to determine whether the trial
judge's decision was an abuse of discretion, not whether it was the same decision we
might have made. (Internal citation omitted). Not only is our role limited to review, but the
review itself has narrow limits:
" * * We have repeatedly held that'[t]he term "abuse of discretion" connotes more
than an error of law or of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable."' (Internal citation omitted.) Wilmington Steel Products, Inc.
v. Cleveland Electric llluminating Co. (1991), 60 Ohio St.3d 120, 121 -22, 573 N.E.2d 622.
We initially note, thetrial court determined Hall-Davis "failed to demonstrate thatthe
2003 claim and the refiled 2005 claim arose out of the same transaction, occurrence, or
conduct." Civ.R. 15 (C) 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." Honeywell relies upon Civ. R. 15(C) to argue Hail-Davis "needed
to establish that her claim for workers' compensation benefits in Case Number 06-CV-220
was the same as her claim for workers' compensation benefits in Case Number 03-CV-
1288. Otherwise, the amended complaint would not relate back to the filing date of the
original complaint and any newly alleged condition in the amended complaint would be
time barred."
ff
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
10
"The Ohio Supreme Court has stressed that the 'primary purpose of Civ.R. 15(C) is
to preserve actions which, through mistaken identity or misnomer, have been filed against
the wrong person.' Littleton v. Good Samaritan Hosp. & Health Center (1988), 39 Ohio
St.3d 86, 101, 529 N.E.2d 449. Accord, Bykova v. Szucs, Cuyahoga App. No. 87629,
2006-Ohio-6424, at ¶ 3(holding that the purpose of Civ.R. 15(C) is 'to resolve minor
clerical errors.')." Stuck v. Coulter, Darke App. No. 1707, 2008-Ohio-485. We need not
apply Civ.R. 15(C) to resolve Hall-Davis' appeal of the denial of her motion to amend her
complaint.
R.C. 2305.19 provides a one yeartime period within which Hall-Davis was required
to refile both her 2003 and 2005 causes of action after she voluntarily and individually
dismissed them' on August 11, 2005. Hall-Davis' proposed amended complaint was filed
January 18, 2007, well past the time period provided in R.C. 2305.19. As we discussed
above, "causes, though consolidated, maintain their separate character, and do not make
a single multiple party, multiple claim action." 1-fausman, following Transcon Builders.
While Hausman and Transcon addressed the impact of consolidation on the right to
appeal, and not the right to amend a complaint, that the "individual characterof each action
is not extinguished by consolidation," belies Hall-Davis' ability to reinstate Case No. 2003
CV 288 by amending her complaint in another matter which involves a separate appeal
from a distinct Industrial Commission decision for a separate injury. Justice does not
require otherwise.
We finally note that Hall-Davis cites Bedinghaus v. Administrator(March 16, 2001),
'We note, " a dismissal of one of the consolidated actions [would] notdismissthe other unless the motion to dismiss applie[d] to both actions." 2 Klein, Darling,Baldwin's Ohio Practice, Civil Practice (2d Ed.) 257, Section 42:2.
9THE COURT OF APPEALS OFOHIO
SECOND APPELLATE DISTRICT
11
Hamilton App. Nos. 000468, A-9903354, for the proposition, "in a similar situation,
consolidated appeals were re-filed under one appeal and proceeded accordingly." In
Bedinghaus, an employee voluntarily dismissed two workers' compensation appeals, and
"[e]ventually, the consolidated appeals were refiled under the number A-9704215."
Bedinghaus is not authority for Hall-Davis to reinstate a cause of action that is time-barred.
There being no abuse of discretion, Hall-Davis' assignment of error is overruled.
Judgment affirmed.
BROGAN, J. and FAIN, J., concur.
Copies mailed to:
Arthur C. GravesAndrew S. AdamsChristopher R. WalshWilliam CreedonHon. Roger B. Wilson
a1)THE COURT OF APPEALS OFOI-IIO
SECOND APPELLATE DIS7'RICT
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
GLENDA S. HALL-DAVIS
Plaintiff-Appellant
V.
HONEYWELL, INC., et al.
Defe n d a nts-Ap pe l l ees
C.A. CASE NO. 2008 CA 12008 CA 2
T.C. NO. 2006 CV 220
FINAL ENTRY
Pursuant to the opinion of this court rendered on the 6th day of
February , 2009, the judgment of the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
^ NON, Presiding Judge
MIKE FAIN, Judge
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
2
Copies mailed to:
Arthur C. Graves2929 Kenny RoadSuite 295Columbus, Ohio 43221
Andrew S. AdamsChristopher R. Walsh136 West Mount StreetColumbus, Ohio 43215
William CreedonAssistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43215
Hon. Roger B. WilsonCommon Pleas Court200 N. Main StreetUrbana, Ohio 43078
aaTHE COURT OF APPEALS OF OHIO
SECOND APPELLA'rE DISTRICT
IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
GLENDA S. MCQUINN-HALL : Appellate Case No. 08-CA-0108-CA-02
Plaintiff-Appell an t,
V.
HONEYWELL, INC., et al.,
Defendant-Appellees.
T.Ct. Case No. 03-CV-28806-CV-220
MAGISTRATE'S ORDERAugust '?, 2008
^ It appearing to this court that the notices of appeal filed in Champaign County App.
Nos. 08-CA-01 and 08-CA-02 both arise out of the trial court's January 11, 2008 entry, IT IS
HEREBY ORDERED, sua sponte, that the above-captioned appeals are hereby
consolidated for the sole purpose of this appeal.
IT IS FURTHER ORDERED that all future filings in this matter shall retain the caption
as noted above and bear both case numbers.
IT IS SO ORDERED.
a3
SECOND APPELLATE DISTRICTTHE COURT OF APPEALS OF OHIO
Copies mailed to:
Arthur C. Getty Andrew S. Adams2929 Kenny Road Christopher R. WalshSuite 295 136 W. Mound StreetColumbus, Ohio 43221 Columbus, Ohio 43215
William CreedonAssistant Attorney GeneralWorkers' Compensation Section150 E. Gay Street, 22nd Fl.Columbus, Ohio 43215
THE COURT OF APPEALS OF OHIO
GAVch
SECOND APPELLATE DISTRICT
IN THE COURT OF COMMON PLEAS, CHAMPAIGN COUNTY, OHIO
GLENDA S. MCQUINN-HALL, K1 I: 26
Plaintiff, 2003 CV 288
-vs- C-15
HONEYWELL, INC., et al, JOURNAL ENTRY
Defendants.
IN THE COURT OF COMMON PLEAS, CHAMPAIGN COUNTY, OHIO
GLENDA S. MCQUINN f-:ALL, *
Plaintiff, CASE NO. 2005 CV 113
- vs - *
HONEYWELL, INC., et al, * JOURNAL ENTRY
Defendants.
The cases were considered by the Court on the motion to
consolidate filed by Defendant on July 5, 2005. Response time was
scheduled and no responses have been filed.
The motion is sustained and the two cases are consolidated for
ti-ial. All filings from this point forward sha/l be in Case Number
2005-CV-113,
For administrative purposes Case Number 2003 CV 288 is
terminated by consolidation.
^ as
^04,6F B. WilsonJudge
RBW:csm
Copies: Arthur C, Gr:ives, Counsel for PlaintiffAndrew S. Adams, Attorney for Defendan.^ i-ioneywellCharissa D. Payer, Assistant Attorney Ger;eral
IN THE. COURT OF COMMON PLEAS CHAMPAIGN COUNTY, 6f,ftQ:
GLENDA S. HALL-DAVIS,
Plairitiff,
vs-
HONEYWELL, INC., et al.,
Defendants.
*.
* Case No. 2006 CV 220**
* Journal Entry.**
** .* .* *. .. ..* .. ., *. .* ** .. **
GLENDA S. McQUINN-HALL,
Plaintiff,
- vs -
HONEYWELL, INC., et al.,
Defendants.
** ,* .. .,t **
" C18*.
*.
Case No. 2003 CV 288
* Journal Entry.
*FINAL APPEALABLE ORDER
*w* ** ** ** •* *+r ^* f•
Case Number 2003 CV 288 came before the Court on Defendant Honeywell's
motion for judgment on the pleadings, and the responses thereto. Case Number 2006
CV 220 came before the Court upon Plaintiff's motion for leave to file amended
complaint, and the responses thereto.
Motion for Judqment
Upon consideration of all matters submitted, the Court grants Defendant
Honeywell's motion. The Court finds that Plaintiff failed to refile her claim for reflex
sympathetic dystrophy of the upper extremities (the 2003 CV 288 claim) within the one
year period prescribed by the savings statute, R.C. §2305.19. See Fowee v. Wesley
Hall, Inc. (2006), 108 Ohio St.3d 533.
a7
HALL-DAVIS V. HONEYWELL, INC. 2006 CV 220 PAGE 2McQUINN-HALL V. HONEYWELL, INC. 2003 CV 288
Contrary to Plaintiff's assertions, "[w]hen two cases are consolidated, pursuant to
Civ.R. 42(A), they are not merged into a single case but maintain their original identity."
Transcon Builders, Inc. v. City of Lorain (1976), 49 Ohio App.2d 145, at syllabus. See,
also, Hausman v. City of Dayton (Dec. 22, 1993), 2nd Dist. Montgomery App. No. 13647,
1993 Ohio App. LEXIS 6303 (reversed on other grounds, by Hausman v. City of Dayton
(1995), 73 Ohio St.3d 671), which stated: "We hold, following Transcon Builders, Inc.,
supra, that causes, though consolidated, maintain their separate character, and do not
make a single multiple party, multiple claim action."'
Plaintiff dismissed her complaints in Case Numbers 2003 CV 288 and 2005 CV
113 on August 11, 2005. Said dismissals were accomplished by separate notices of
dismissal, each individually captioned and filed in Case Numbers 2003 CV 288 and
2005 CV 113 respectively.
On August 3, 2006, Plaintiff filed Case No. 2006 CV 220. According to the
Complaint, it is a recommencement of "case No. 05 CV 113." Except for a few minor
changes, the 2006 Complaint is identical to the 2005 Complaint. The 2006 Complaint
does briefly mention that the condition of "reflex sympathetic dystrophy of both upper
extremities" has previously been allowed at the administrative level. See 2Oa6: CV:_^20
Complaint, item 4.
g-X
^n
iv'The Court notes that some cases have held consolidated workers' compensation appeals
arnount to "one legal proceeding"for the purpose of awar•dirrg statutoty legalfees. See Hansford
v. Midwest Staff Solutions (Oct. 26, 2006), 8'h Dist. Cuyahoga App. No. 87226, 2006 Ohio 5581;
Murawski v. Tamarkin (Sep. 20, 2006), 9'h Dist. Summit App. No. 23103, 2006 Ohio 4870.
a^/
HALL-DAVIS V. HONEYWELL, INC. 2006 CV 220 PAGE 3McQUINN-HALL V. HONEYWELL, INC. 2003 CV 288
However, the 2006 Complaint fails to state that it is a recommencement of 2003
CV 288 pursuant to R.C. §2305.19. The 2006 Complaint fails to even seek
participation for reflex sympathetic dystrophy of both upperextremities, limiting the
injuries for which Plaintiff seeks relief to reflex sympathetic dystrophy of the lower
extremities.
As Plaintiff has failed to refile her 2003 complaint regarding reflex sympathetic
dystrophy of the upper extremities within the one year prescribed by R.C. §2305.19,
Defendant Honeywell is entitled to judgment in its favor in Case No. 2003 CV 288.
Fowee, supra; Hughes v. Federal Mogul Ignition Co. (Apr. 26, 2007), 5'h Dist. Guernsey
App. No. 06 CA 27, 2007 Ohio 2021. Plaintiffs proposed amended complaint,
discussed infra, is insufficient to recommence the 2003 claim for reflex sympalhetO^^g
dystrophy of the upper extremities.
Motion for Leave to File Amended Complaint
Upon consideration of all matters submitted, and using the standard.§bfCiv.11
15, the Court declines to grant Plaintiff's motion.
The proposed amended complaint was not submitted until well after the time
period provided by the savings statute, R.C. §2305.19, had run.
Pursuant to R.C. §4123.512, Plaintiff was required to file appropriate petitions
within a certain time period. Apparently, Plaintiff did so in 2003 CV 288 and 2005 CV
113. However, Plaintiff dismissed those cases (through separate notices of dismissal).
Plaintiff could only recommence those actions if appropriate refiling of those cases
occurred within one year of dismissal. Plaintiff successfully refiled her 2005 complaint
al
HALL-DAVIS V. HONEYWELL, INC. 2006 CV 220 PAGE 4McQUINN-HALL V. HONEYWELL, INC. 2003 CV 288
for reflex sympathetic dystrophy of the lower extremities. Plaintiff failed to timely refile
her 2003 complaint for reflex sympathetic dystrophy of both upper extremities.
The Court finds that Plaintiff may not amend her complaint to reinstate Case
Number 2003 CV 288 when that case was not timely refiled within the one year period
provided by R.C. §2305.19. Plaintiff has failed to demonstrate that the 2003 claim and
the refiled 2005 claim arose out of the same transaction, occurrence, or conduct. As
discussed above, Case Numbers 2003 CV 288 and 2005 CV 113 retained their
individual identities, involve separate appeals from separate Industrial Commission
determinations, and involve separate claims for distinct injuries or conditions.
Plaintiff's motion for leave to amend her complaint is denied.
Conclusion
Defendant Honeywell is entitled to judgment in its favor in Case Number 2003
CV 288, as Plaintiff failed to refile her complaint within the one-year time period
provided by Ff.C. §2305.19.
Case Number 2003 CV 288 is terminated.
Plaintiffs motion for leave to amend her complaint in Case Number 2006 CV 220
is denied.
Case Number 2003 CV 220 still remains pending for trial on the issue of
Plaintifrs participation in the State Insurance Fund for the condition of refle)^,
sympathetic dystrophy of the lower extremities (the 2005 claim that was sucGessfullg^_-
refiled in 2003 CV 220).
Pre-trial Questionnaire to be sent under separate cover.xn
^.^
^
3b
HALL-DAVIS V. HONEYWELL, INC. 2006 CV 220McQUINN-HALL V. HONEYWELL, INC. 2003 CV 288
Plaintiff to pay costs in 2003 CV 288. -
Roger`8. WilsonJudge
PAGE 5
Copies: Original in 2006 CV 220, copy in 2003 CV 288L--Arthur C. Graves, Attorney for Plaintiff
Andrew S. Adams, Attorney for Defendant HoneywellWilliam Creedon, Assistant Attorney General, Attorney for BWC
3
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31
