[Cite as DeWalt v. Tuscarawas Cty. Health Dept., 2012-Ohio-5294.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DEBORAH DEWALT JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs-
TUSCARAWAS COUNTY HEALTH DEPARTMENT, et al.
Defendant-Appellant Case No. 2012 AP 05 0031 and
ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION OPINION Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2007 CW 01 0006
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 14, 2012
APPEARANCES:
For Plaintiff-Appellee DeWalt For Defendant-Appellant
A. JAMES TSANGEOS STEVEN G. THOMAKOS LONAS, MCGONEGAL, TSANGEOS 221 Front Avenue, SW & STRUHAR Post Office Box 944 1810 - 36th Street, NW New Philadelphia, Ohio 44663 Canton, Ohio 44709-2739
For Defendant-Appellee BWC
SUSAN BERES ASSISTANT ATTORNEY GENERAL 615 West Superior Avenue, 11th Floor Cleveland, Ohio 44113-1899 Tuscarawas County, Case No. 2012 AP 05 0031 2
Wise, J.
{¶1} Defendant-Appellant Tuscarawas County Health Department appeals
Appellee Deborah DeWalt’s April 3, 2012, Notice of Dismissal without prejudice of her
complaint/petition.
STATEMENT OF THE FACTS AND CASE
{¶2} In 1990, Appellee Deborah Dewalt began working for Appellant
Tuscarawas County Health Department as a processing clerk. On April 11 and April 12,
1996, Appellant installed battery operated aerosol dispensers in eight (8) separate
bathrooms. The dispensers were programmed to dispense a compressed aerosol every
fifteen (15) minutes. The aerosol deodorizer was called "AERO-MIST" and contained
acetone, liquid petroleum, and fragrance. The Material Data Safety Sheet for the
deodorizer contained warnings that "inhalation may cause shortness of breath,
dizziness and light headedness: ingestion may cause chemical pneumonitis if aspired
into lungs."
{¶3} Shortly after the bathroom deodorizers were installed, Appellee began to
experience symptoms. On June 27, 2006, Appellee was sprayed with one of the
automatic deodorizers which caused severe respiratory distress, making it difficult to
breathe and affecting her lungs, tongue, lips, and eyes. The following day, Appellee had
a severe respiratory reaction when she inhaled a deodorizer from one of the bathrooms
as she passed in the hallway. This exposure made Appellee sick and short of breath
again. Appellee was taken to the emergency room at Union Hospital, presenting with a
history of breathing an automatic spray deodorizer substance and being very short of Tuscarawas County, Case No. 2012 AP 05 0031 3
breath and coughing from a reaction on the previous day. Appellee was diagnosed with
"mild chemical pneumonitis".
{¶4} On June 28, 2006, Appellee Deborah Dewalt filed a claim with the Bureau
of Workers' Compensation ("BWC"), designated as Claim No. 06-839815, for chemical
pneumonitis, which was allowed by the Industrial Commission of Ohio ("ICO").
{¶5} On January 5, 2007, Appellant Tuscarawas County Health Department
filed its Notice of Appeal with the Tuscarawas County Court of Common Pleas
designated as Case No. 2007-CW-01-0006, appealing the order of the ICO allowing
Appellee's claim for chemical pneumonitis. (“Appeal One”).
{¶6} On February 1, 2007, Appellee Dewalt filed her Complaint, as required by
R.C. §4123.512.
{¶7} On January 29, 2007, Appellee filed a motion with the ICO to have her
claim further allowed for occupational asthma. The ICO granted Appellee's motion for
the additional condition.
{¶8} On July 16, 2007, Appellant filed a separate Notice of Appeal with the
Tuscarawas County Court of Common Pleas, designated as Case No. 2007-CW-07-
0515, appealing the order of the ICO allowing Appellee's claim for occupational asthma.
("Appeal Two").
{¶9} On August 9, 2007, Appellee filed her Complaint, pursuant R.C.
§4123.512.
{¶10} On October 3, 2007, Appellee filed a motion to consolidate Appeal Two
into Appeal One. The trial court denied the motion to consolidate. Tuscarawas County, Case No. 2012 AP 05 0031 4
{¶11} A jury trial in Appeal One seeking solely the condition of chemical
pneumonitis, resulted in a hung jury on November 14, 2007.
{¶12} On January 11, 2008, Appellee filed her second motion to consolidate. On
March 19, 2008, the trial court granted the motion to consolidate, thereby consolidating
Appeal Two (occupational asthma) into Appeal One (chemical pneumonitis).
{¶13} On March 9, 2010, Appellee filed a second motion with the ICO to have
her claim further allowed for toxic encephalopathy. The ICO granted Appellee's motion
for the additional condition.
{¶14} On December 8, 2010, Appellant filed a third Notice of Appeal with the
Tuscarawas County Court of Common Pleas, designated as Case No. 2010-CW-12-
1357, appealing the order of the ICO allowing Appellee's claim for toxic encephalopathy.
("Appeal Three").
{¶15} On December 29, 2010, Appellee filed her Complaint, pursuant to R.C.
{¶16} On April 6, 2011, the trial court issued an order consolidating Appeal
Three (toxic encephalopathy) with Appeals One and Two.
{¶17} A second trial was set for April 3, 2012.
{¶18} On March 22, 2012, Appellee filed a motion to continue the trial due to
Appellee's medical expert being unavailable for trial. The trial court denied the
continuance.
{¶19} On March 29, 2012, Appellee filed a motion to sever Appeal Three (toxic
encephalopathy) from Appeal One (chemical pneumonitis). Appellee's motion to sever
was argued before the trial court on April 2, 2012. At the hearing, Appellee made an oral Tuscarawas County, Case No. 2012 AP 05 0031 5
motion to also sever Appeal Two (occupational asthma) from Appeal One (chemical
pneumonitis). At the conclusion of the hearing, the trial court granted Appellee's motion
to sever Appeals Two and Three from Appeal One.
{¶20} On April 2, 2012, Appellee filed separate Notices of Dismissal Without
Prejudice, pursuant to Civ.R. 41(A)(1), in Appeal Two (Case No. 2007-CW-07-0515)
and Appeal Three (Case No. 2010-CW-12-1357).
{¶21} On April 3, 2012, Appellee filed a Notice of Dismissal Without Prejudice,
pursuant to Civ.R. 41(A)(1), in Appeal One (Case No. 2007-CW-01-0006), which is the
subject of this appeal.
{¶22} On April 4, 2012, the trial court filed an Entry granting Appellee's motions
to sever Appeals Two and Three from Appeal One. The trial court further ordered that
"the jury trial commencing on April 3, 2012, was cancelled upon [Appellee's] oral
communication that [she] would be filing a notice of dismissal under Civ.R. 41(A) in the
above-referenced consolidated cases."
{¶23} Appellant now appeals, raising the following assignment of error:
ASSIGNMENT OF ERROR
{¶24} “I. PLAINTIFF’S DISMISSAL FILED APRIL 3, 2012, MUST BE DEEMED
WITH PREJUDICE, AND ON THE MERITS, THUS NOT SUBJECT TO REFILING ON
THE AUTHORITY OF OHIO CIVIL RULE 41(A) AND THE AUTHORITY OF
SCHWERING V. TRW VEHICLE SAFETY SYS. 2012-OHIO-1481.”
I.
{¶25} Before we address the merits of Appellant’s assignment of error, we must
first resolve a threshold jurisdictional issue. Ohio courts of appeals have appellate Tuscarawas County, Case No. 2012 AP 05 0031 6
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[Cite as DeWalt v. Tuscarawas Cty. Health Dept., 2012-Ohio-5294.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DEBORAH DEWALT JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs-
TUSCARAWAS COUNTY HEALTH DEPARTMENT, et al.
Defendant-Appellant Case No. 2012 AP 05 0031 and
ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION OPINION Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2007 CW 01 0006
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 14, 2012
APPEARANCES:
For Plaintiff-Appellee DeWalt For Defendant-Appellant
A. JAMES TSANGEOS STEVEN G. THOMAKOS LONAS, MCGONEGAL, TSANGEOS 221 Front Avenue, SW & STRUHAR Post Office Box 944 1810 - 36th Street, NW New Philadelphia, Ohio 44663 Canton, Ohio 44709-2739
For Defendant-Appellee BWC
SUSAN BERES ASSISTANT ATTORNEY GENERAL 615 West Superior Avenue, 11th Floor Cleveland, Ohio 44113-1899 Tuscarawas County, Case No. 2012 AP 05 0031 2
Wise, J.
{¶1} Defendant-Appellant Tuscarawas County Health Department appeals
Appellee Deborah DeWalt’s April 3, 2012, Notice of Dismissal without prejudice of her
complaint/petition.
STATEMENT OF THE FACTS AND CASE
{¶2} In 1990, Appellee Deborah Dewalt began working for Appellant
Tuscarawas County Health Department as a processing clerk. On April 11 and April 12,
1996, Appellant installed battery operated aerosol dispensers in eight (8) separate
bathrooms. The dispensers were programmed to dispense a compressed aerosol every
fifteen (15) minutes. The aerosol deodorizer was called "AERO-MIST" and contained
acetone, liquid petroleum, and fragrance. The Material Data Safety Sheet for the
deodorizer contained warnings that "inhalation may cause shortness of breath,
dizziness and light headedness: ingestion may cause chemical pneumonitis if aspired
into lungs."
{¶3} Shortly after the bathroom deodorizers were installed, Appellee began to
experience symptoms. On June 27, 2006, Appellee was sprayed with one of the
automatic deodorizers which caused severe respiratory distress, making it difficult to
breathe and affecting her lungs, tongue, lips, and eyes. The following day, Appellee had
a severe respiratory reaction when she inhaled a deodorizer from one of the bathrooms
as she passed in the hallway. This exposure made Appellee sick and short of breath
again. Appellee was taken to the emergency room at Union Hospital, presenting with a
history of breathing an automatic spray deodorizer substance and being very short of Tuscarawas County, Case No. 2012 AP 05 0031 3
breath and coughing from a reaction on the previous day. Appellee was diagnosed with
"mild chemical pneumonitis".
{¶4} On June 28, 2006, Appellee Deborah Dewalt filed a claim with the Bureau
of Workers' Compensation ("BWC"), designated as Claim No. 06-839815, for chemical
pneumonitis, which was allowed by the Industrial Commission of Ohio ("ICO").
{¶5} On January 5, 2007, Appellant Tuscarawas County Health Department
filed its Notice of Appeal with the Tuscarawas County Court of Common Pleas
designated as Case No. 2007-CW-01-0006, appealing the order of the ICO allowing
Appellee's claim for chemical pneumonitis. (“Appeal One”).
{¶6} On February 1, 2007, Appellee Dewalt filed her Complaint, as required by
R.C. §4123.512.
{¶7} On January 29, 2007, Appellee filed a motion with the ICO to have her
claim further allowed for occupational asthma. The ICO granted Appellee's motion for
the additional condition.
{¶8} On July 16, 2007, Appellant filed a separate Notice of Appeal with the
Tuscarawas County Court of Common Pleas, designated as Case No. 2007-CW-07-
0515, appealing the order of the ICO allowing Appellee's claim for occupational asthma.
("Appeal Two").
{¶9} On August 9, 2007, Appellee filed her Complaint, pursuant R.C.
§4123.512.
{¶10} On October 3, 2007, Appellee filed a motion to consolidate Appeal Two
into Appeal One. The trial court denied the motion to consolidate. Tuscarawas County, Case No. 2012 AP 05 0031 4
{¶11} A jury trial in Appeal One seeking solely the condition of chemical
pneumonitis, resulted in a hung jury on November 14, 2007.
{¶12} On January 11, 2008, Appellee filed her second motion to consolidate. On
March 19, 2008, the trial court granted the motion to consolidate, thereby consolidating
Appeal Two (occupational asthma) into Appeal One (chemical pneumonitis).
{¶13} On March 9, 2010, Appellee filed a second motion with the ICO to have
her claim further allowed for toxic encephalopathy. The ICO granted Appellee's motion
for the additional condition.
{¶14} On December 8, 2010, Appellant filed a third Notice of Appeal with the
Tuscarawas County Court of Common Pleas, designated as Case No. 2010-CW-12-
1357, appealing the order of the ICO allowing Appellee's claim for toxic encephalopathy.
("Appeal Three").
{¶15} On December 29, 2010, Appellee filed her Complaint, pursuant to R.C.
{¶16} On April 6, 2011, the trial court issued an order consolidating Appeal
Three (toxic encephalopathy) with Appeals One and Two.
{¶17} A second trial was set for April 3, 2012.
{¶18} On March 22, 2012, Appellee filed a motion to continue the trial due to
Appellee's medical expert being unavailable for trial. The trial court denied the
continuance.
{¶19} On March 29, 2012, Appellee filed a motion to sever Appeal Three (toxic
encephalopathy) from Appeal One (chemical pneumonitis). Appellee's motion to sever
was argued before the trial court on April 2, 2012. At the hearing, Appellee made an oral Tuscarawas County, Case No. 2012 AP 05 0031 5
motion to also sever Appeal Two (occupational asthma) from Appeal One (chemical
pneumonitis). At the conclusion of the hearing, the trial court granted Appellee's motion
to sever Appeals Two and Three from Appeal One.
{¶20} On April 2, 2012, Appellee filed separate Notices of Dismissal Without
Prejudice, pursuant to Civ.R. 41(A)(1), in Appeal Two (Case No. 2007-CW-07-0515)
and Appeal Three (Case No. 2010-CW-12-1357).
{¶21} On April 3, 2012, Appellee filed a Notice of Dismissal Without Prejudice,
pursuant to Civ.R. 41(A)(1), in Appeal One (Case No. 2007-CW-01-0006), which is the
subject of this appeal.
{¶22} On April 4, 2012, the trial court filed an Entry granting Appellee's motions
to sever Appeals Two and Three from Appeal One. The trial court further ordered that
"the jury trial commencing on April 3, 2012, was cancelled upon [Appellee's] oral
communication that [she] would be filing a notice of dismissal under Civ.R. 41(A) in the
above-referenced consolidated cases."
{¶23} Appellant now appeals, raising the following assignment of error:
ASSIGNMENT OF ERROR
{¶24} “I. PLAINTIFF’S DISMISSAL FILED APRIL 3, 2012, MUST BE DEEMED
WITH PREJUDICE, AND ON THE MERITS, THUS NOT SUBJECT TO REFILING ON
THE AUTHORITY OF OHIO CIVIL RULE 41(A) AND THE AUTHORITY OF
SCHWERING V. TRW VEHICLE SAFETY SYS. 2012-OHIO-1481.”
I.
{¶25} Before we address the merits of Appellant’s assignment of error, we must
first resolve a threshold jurisdictional issue. Ohio courts of appeals have appellate Tuscarawas County, Case No. 2012 AP 05 0031 6
jurisdiction over “final appealable orders.” Section 3(B)(2), Article IV of the Ohio
Constitution. If a judgment appealed is not a final order, an appellate court has no
jurisdiction to consider it and the appeal must be dismissed. See Davison v. Rini, 115
Ohio App.3d 688, 692, 686 N.E.2d 278 (4th Dist.1996); Prod. Credit Assn. v. Hedges,
87 Ohio App.3d 207, 210, 621 N.E.2d 1360 (4th Dist.1993); Kouns v. Pemberton, 84
Ohio App.3d 499, 501, 617 N.E.2d 701 (4th Dist.1992). Furthermore, if the parties
themselves do not raise a jurisdictional issue on appeal, an appellate court is required
to raise them sua sponte. See In re Murray, 52 Ohio St.3d 155, 159–160, 556 N.E.2d
1169, at fn. 2 (1990); Whitaker–Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280
N.E.2d 922 (1972).
{¶26} A final order is one that, inter alia, affects a substantial right and, in effect,
determines the judgment. A judgment satisfies Civ.R. 54(B) only “upon an express
determination that there is no just reason for delay ...”
{¶27} Here, Appellee filed a Civ.R. 41(A) voluntary dismissal of the appeal from
the order of the ICO allowing her claim for chemical pneumonitis.
{¶28} A plaintiff's notice of voluntary dismissal made pursuant to Civ.R. 41(A)(1)
is self-executing; it requires no court action and is effective on the date of filing. James
v. Allstate Ins. Co. (March 16, 2000), Cuyahoga App.No. 75993, 2000 WL 284221
(additional citations omitted). Generally, where a case has been voluntarily dismissed
under Civ.R. 41(A)(1), the trial court patently and unambiguously lacks jurisdiction to
proceed. See State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 771 N.E.2d 853, 2002-
Ohio-3605, ¶ 22 Tuscarawas County, Case No. 2012 AP 05 0031 7
{¶29} The Supreme Court of Ohio has stated that a voluntary dismissal without
prejudice under Civ.R. 41(A) renders the parties as if no suit had ever been filed.
Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596, 1999-Ohio-128.
{¶30} Consequently, a voluntary dismissal pursuant to Civ.R. 41(A) does not
adjudicate the merits of a claim, does not produce a prevailing party, and does not end
in a final appealable order. Champion Mall Corp. v. Bilbo Freight Lines, Inc., 81 Ohio
App.3d 611, 615, 611 N.E.2d 969 (1992)
{¶31} Based on the foregoing, we find that this Court lacks jurisdiction to
entertain this appeal.
{¶32} Appellant’s appeal is dismissed.
{¶33} Based on the foregoing disposition of this appeal, we find Plaintiff-
Appellee Deborah Dewalt’s Motion to Strike the Affidavit of Larry Sanford, attached to
Appellant Tuscarawas County Health Department’s Reply Brief, to be moot.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
___________________________________
JUDGES JWW/d 1025 Tuscarawas County, Case No. 2012 AP 05 0031 8
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DEBORAH DEWALT : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TUSCARAWAS COUNTY HEALTH DEPT. : : Defendant-Appellant : and : : ADMINISTRATOR, BUREAU : OF WORKERS' COMPENSATION : : Defendant-Appellee : Case No. 2012 AP 05 0031
For the reasons stated in our accompanying Memorandum-Opinion, this Court
lacks jurisdiction and dismissed this appeal.
Costs assessed to Appellant.
JUDGES