[Cite as Adams v. Enon, 2012-Ohio-6178.]
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:
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., 63
Ohio App.3d 827, 580 N.E.2d 466 (9th Dist. 1989); Miller v. Premier Industrial Corp., 136
Ohio App.3d 662, 737 N.E.2d 594 (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., 158 Ohio App.3d 615, 2004-Ohio-4521, 821 N.E.2d 580 (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., 91 Ohio St.3d 38, 741 N.E.2d 121 (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, 103 Ohio St.3d
355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. 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, 4 U. Dayton L. Rev. 31, 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., 91
Ohio St.3d 38, 40, 741 N.E.2d 121 (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, 2012-Ohio-6178.] {¶ 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., 19 Ohio St.3d 100, 103, 483 N.E.2d 150 (1985), and Fawcett v. G. C. Murphy &
Co., 46 Ohio St.2d 245, 249-250, 348 N.E.2d 144 (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, 500 F.3d 920
(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.” 28 U.S.C. § 1331. Only Congress may classify
a statute as jurisdictional. Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 20
157 L.Ed.2d 867 (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.) 500 F.3d at 928 -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. ––––,
––––, 131 S.Ct. 1197, 1202–1203, 179 L.Ed.2d 159 (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, 540 U.S. 443, 454–455, 124 S.Ct. 906, 157 L.Ed.2d
867 (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., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). 21
have not presented. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct.
1781, 152 L.Ed.2d 860 (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 ––––, 131
S.Ct., at 1202. Courts, we have said, should not lightly attach those “drastic”
consequences to limits Congress has enacted. Ibid.
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., 546
U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (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. ___, ___, 132 S.Ct. 641, 648 -649, 181 L.Ed.2d
619 (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, 493 U.S. 20, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (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.” Id. at 31. 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., 63 Ohio App.3d 827, 580 N.E.2d 466 (9th Dist.1989), and Miller
v. Premier Indus. Corp., 136 Ohio App.3d 662, 737 N.E.2d 594 (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. 63 Ohio App.3d at 466; 136 Ohio
App.3d at 662. 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.,
626 F.Supp. 110 (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. Id. at 112. 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. Id.
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, 136 Ohio App.3d at 673.
{¶ 60} In Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 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), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210;
Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 61 O.O.2d 335, 290 N.E.2d
841, 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), 35 Ohio
St.3d 68, 518 N.E.2d 941, 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.”
2004-Ohio-1980 at ¶ 33, quoting United States v. Vanness, 85 F.3d 661 (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, 1987 WL
32167 (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), 69 Ohio St.2d 367, (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,
1993 WL 387104, (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
2009 WL 1648909 (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, 59 Ohio App.2d 155,
169, 392 N.E.2d 1316 (8th Dist. 1978). “[A]n abuse of discretion most commonly arises
from a decision that was unreasonable.” Wilson v. Lee, 172 Ohio App.3d 791,
2007-Ohio-4542, 876 N.E.2d 1312, ¶11 (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., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (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