author: CYNTHIA WESTCOTT RICE, J.

text:
    Donald MCCORMACK, Plaintiff-Appellant, v. JEFFERSON AREA LOCAL SCHOOL DISTRICT, Defendant-Appellee.
    NO. 2018-A-0005
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    September 17, 2018
    Donald P. Wiley, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Plaintiff-Appellant).
    Mark Landes and Robert C. Perryman, Isaac, Wiles, Burkholder & Teetor, LLC, Two Miranova Place, Suite 700, Columbus, OH 43215 (For Defendant-Appellee).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Donald McCormack, appeals the judgment of the Ashtabula County Court of Common Pleas, declaring that his former employer, appellee, Jefferson Area Local School District ("the District"), has no duty to provide him with a legal defense in a civil action filed against him by two former students of the District. The students alleged that appellant, who was their high school basketball coach, sexually abused them. For the reasons that follow, we affirm.

{¶ 2} At all relevant times, appellant was employed as a girls' basketball coach at Jefferson High School, which is one of the schools in the District. In 2014, he was indicted for multiple counts of sexual battery, endangering children, and gross sexual imposition committed against Jaimie Wilson and Elizabeth Ziemski while they were minors, students at Jefferson High School, and members of the girls' basketball team.

{¶ 3} While appellant's criminal case was pending, on June 12, 2015, Ms. Wilson and Ms. Ziemski filed a civil complaint against him ("the underlying complaint") for damages resulting from his sexual abuse. That suit remains pending.

{¶ 4} Eight months later, on February 16, 2016, appellant filed a complaint against the District, seeking a declaration that the District was obligated to pay the costs of his legal defense in the civil action filed by the victims. The District filed an answer, denying it had a duty to provide him with a defense at public expense.

{¶ 5} The matter was set for a bench trial. On August 16, 2017, the parties filed a "Joint Stipulation Regarding Testimony at Trial." The parties stipulated that appellant's declaratory-judgment action arose from the victims' civil complaint, and the parties attached a copy of that complaint to the stipulation. They stipulated that, if called to testify, Ms. Wilson and Ms. Ziemski would testify that appellant committed the acts alleged in their complaint and that, at all relevant times, he was not acting in good faith. They further stipulated that, if called to testify, appellant would testify that he did not commit the acts alleged in the complaint and that his interactions with the plaintiffs were in good faith and in the scope of his employment, as alleged in his declaratory-judgment complaint (and in his underlying answer). The parties further stipulated that "these are all the facts necessary to render a judgment on the declaratory judgment complaint, and that it will not be necessary for the court to entertain witnesses at the trial on August 23, 2017. " (Emphasis added.)

{¶ 6} On August 23, 2017, the trial court entered a judgment stating:

{¶ 7} Counsel advised the Court of their agreement that the stipulation contains all of the evidence necessary to the Court's decision in this case and that, in lieu of trial, they are prepared to submit written briefs on their respective arguments. They further agree that the Court can decide the case on the joint stipulation and the written briefs, without need for further hearing.
{¶ 8} ORDER: 1. The agreement of counsel for the parties to waive a trial and submit this case for decision by the Court on the basis of the joint stipulation regarding testimony and the briefs is accepted by the Court. (Emphasis added.)

{¶ 9} After considering the joint stipulation, the pleadings in the underlying action, and the trial briefs, the trial court found that the District did not have a duty to provide a legal defense for appellant under R.C. 2744.07(A)(1). Appellant appeals, asserting two assignments of error. Because they are related, they are considered together. They allege:

{¶ 10} "[1.] The trial court committed prejudicial error when it held that R.C. 2744.07(A)(1) did not require the political subdivision/appellee to defend the political subdivision employee/appellant, when the appellant alleged that he was at all times acting in good faith and not manifestly outside the course of his employment in an underlying civil suit against him for alleged torts.

{¶ 11} "[2.] The trial court committed prejudicial error when it refused to reimburse the appellant for attorney's fees expended in defending the underlying action to date and all attorney's fees to be incurred hereafter."

{¶ 12} The current version of R.C. 2744.07(A)(1), which was amended in 2003, provides in pertinent part:

{¶ 13} [A] political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action * * * which contains an allegation for damages for injury * * * caused by an act or omission of the employee in connection with a governmental or proprietary function. The political subdivision has the duty to defend the employee if the act or omission occurred while the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities. (Emphasis added.)

{¶ 14} Further, R.C. 2744.07(C), also amended in 2003, provides, in part:

{¶ 15} * * * In determining whether a political subdivision has a duty to defend the employee in the action, the court shall determine whether the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities. The pleadings shall not be determinative of whether the employee acted in good faith or was manifestly outside the scope of employment or official responsibilities.
{¶ 16} If the court determines that the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities, the court shall order the political subdivision to defend the employee in the action. (Emphasis added.)

{¶ 17} The version of R.C. 2744.07(A)(1) in effect prior to 2003 required a political subdivision to provide a defense for an employee "if the act * * * [1] occurred or [2] [was ] alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment." (Emphasis added.) This alternative language gave rise to a two-prong test, according to which a subdivision was required to provide a defense when the employee's act was either (1) found by the court to have actually occurred , or was (2) alleged in the pleadings to have occurred ("the allegation prong"), while the employee was acting in good faith and in the scope of his employment. Rogers v. Youngstown , 61 Ohio St.3d 205, 208, 574 N.E.2d 451 (1991) ; Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d 574, 576, 752 N.E.2d 267 (2001).

{¶ 18} Since the two-prong test was based on the alternative language in former R.C. 2744.07(A)(1) and that alternative language has been replaced by language that removed the allegation prong and imposes the duty to provide a defense only when the employee's act occurred while he was acting in good faith and in the scope of his employment, the allegation prong has been effectively superseded by statute. This conclusion is buttressed by R.C. 2744.07(C), as amended, which provides that "[t]he pleadings shall not be determinative of whether the employee acted in good faith or was manifestly outside the scope of employment."

{¶ 19} Thus, following the amendment to R.C. 2744.07(A)(1), in order for a political subdivision to be required to provide a defense for its employee, the trial court must determine that the employee's act occurred while he was acting both in good faith and not manifestly outside the scope of his employment. Lambert v. Clancy , 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 11. The pleadings themselves no longer provide an alternative basis on which to require a subdivision to provide its employee with a defense.

{¶ 20} Curiously, while the parties agree the amended version of R.C. 2744.07 applies here, their arguments suggest they are unaware that the amendment to R.C. 2744.07 deleted the allegation prong. Thus, appellant argues that because his answer denied any wrongdoing and alleged that at all times he was acting in the scope of his employment and in good faith, he was entitled to a defense as a matter of law. However, this argument fails because R.C. 2477.07(C), as amended, "specifically disclaims the determinativeness of the pleadings." Cantwell v. Franklin Cty. Bd. of Commrs., 10th Dist. Franklin No. 11AP-849, 2012-Ohio-2273, 2012 WL 1852183, ¶ 9 ; accord Spitulski v. O'Mara , 6th Dist. Lucas No. L-09-1157, 2010-Ohio-186, 2010 WL 219312, ¶ 19.

{¶ 21} In any event, as noted, the parties entered a "Joint Stipulation Regarding Testimony at Trial" in which they agreed that Ms. Wilson and Ms. Ziemski, if called to testify, would testify that appellant committed the acts alleged in the complaint and that appellant, if called to testify, would testify he did not commit those acts. They further agreed that their stipulation contained "all the facts necessary to render a judgment on the declaratory judgment complaint, and that it will not be necessary for the court to entertain witnesses at the trial."

{¶ 22} While the parties stipulated that the allegations in their underlying pleadings were to serve as a substitute for the witnesses' testimony, the pleadings are conflicting and the parties did not agree on any specific facts. Thus, by submitting their stipulation to the trial court as a substitute for the witnesses' testimony, the parties essentially asked the trial court, as the trier of fact, to resolve any conflicts in the "testimony." This necessarily required the court to determine the credibility of the witnesses' pleadings. Although not unheard of, see State v. Hendrex , 11th Dist. Trumbull No. 2010-T-0103, 2011-Ohio-1588, 2011 WL 1225608, ¶ 38 (in reviewing petition for post-conviction relief, trial court may judge credibility of affidavits), it is unusual for the trial court to make credibility judgments based solely on the printed page. However, by submitting their stipulation in lieu of the witnesses' testimony, this is exactly what the parties asked the court to do. Thus, appellant waived or invited any error in this procedure.

{¶ 23} As such, this appeal presents a mixed question of law and fact. Appellate review of a mixed question of law and fact requires an appellate court to give deference to a trial court's factual findings if those findings are supported by competent, credible evidence. If we accept the facts found by the trial court to be true, we then independently review whether the trial court properly applied the law to the facts. O'Brien v. The Ohio State Univ. , 10th Dist. Franklin No. 06AP-946, 2007-Ohio-4833, 2007 WL 2729077, ¶ 10-12.

{¶ 24} Whether an employee acted in the scope of his employment and whether he acted in good faith are questions of fact. Auer v. Paliath , 140 Ohio St.3d 276, 2014-Ohio-3632, 17 N.E.3d 561, ¶ 20 ; Cantwell, supra, at ¶ 8 (scope of employment); Mike McGarry & Sons, Inc. v. Construction Resources One, LLC , 6th Dist. Sandusky, 2018-Ohio-528, 107 N.E.3d 91, ¶ 68 (good faith). Conversely, whether the trial court properly applied R.C. 2744.07(A)(1) to the facts in this case in determining that appellant was not entitled to a defense is a question of law.

{¶ 25} "When reviewing the weight of the evidence, the reviewing court 'weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.' " Xtreme Elements, LLC v. Foti Contracting, LLC , 11th Dist. Lake No. 2016-L-043, 2017-Ohio-254, 2017 WL 283382, ¶ 25, quoting Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. " 'In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.' " Xtreme, supra , quoting Eastley, supra , at ¶ 21.

{¶ 26} In setting forth its findings of fact, the court did not characterize them as such. Instead, the court considered the joint stipulation of facts, which was based on the underlying pleadings, and recited the salient allegations in support of its conclusion. Since the parties stipulated that the court was to consider the allegations of the pleadings in lieu of the witnesses' testimony, the allegations recited by the court served as the court's findings of fact.

{¶ 27} Based on the parties' stipulation, the trial court essentially found that appellant was employed by the District as a girls' basketball coach and also by a local newspaper as a sports editor and that he used both positions to facilitate his sexual abuse of the plaintiffs and to "sexually prey upon" them while they were students on the basketball team. Appellant engaged in "repeated sexual assaults" and "a months-long course of outrageous, perverted, tortious, and criminal conduct." He engaged in "emotional bullying, physical and emotional isolation, manipulation, and nonconsensual sexual touching." The court found that appellant's conduct could not reasonably be considered conduct that was committed in good faith and in the scope of his employment. The court concluded that, "considering the joint stipulations of fact and the underlying pleadings, the School District does not have a duty to provide a legal defense to McCormack under R.C. 2744.07(A)(1)."

{¶ 28} With respect to appellant's argument that at all times he was acting in good faith, one does not act in good faith when his conduct evinces a dishonest purpose, conscious wrongdoing, or the breach of a known duty through some ulterior motive. See Moore v. Cleveland , 8th Dist. Cuyahoga, 2017-Ohio-1156, 87 N.E.3d 858, ¶ 14 (defining "bad faith.") The trial court found that appellant used his position of authority over the plaintiffs to manipulate and sexually abuse them. Thus, the trial court's finding that he was not acting in good faith is supported by competent, credible evidence.

{¶ 29} Further, with respect to appellant's argument that he was acting in the scope of his employment, "the determination of whether conduct is within * * * the scope of employment necessarily turns on the fact finder's perception of whether the employee acted, or believed himself to have acted, at least in part, in his employer's interests." Cantwell,supra , at ¶ 16 ; accord Crise v. Cleveland , 8th Dist. Cuyahoga No. 80984, 2002-Ohio-6229, 2002 WL 31528793, ¶ 29.

{¶ 30} In Crise, supra, the Eighth District held that the city was not obligated to defend a supervisor in the clerk's office because his actions were beyond the scope of his employment. In that case, a deputy clerk filed a complaint against the supervisor, alleging he sexually harassed her by making sexual comments and engaging in unwanted physical contact at work. She described his conduct as "outrageous and beyond the norms of civilized society." In rejecting the supervisor's argument that he was entitled to a defense, the Eighth District held that "the allegations of sexual harassment [were] 'plainly and obviously' outside the scope of Crise's employment" and that "[s]uch alleged 'outrageous' behavior [could] not possibly comprise part of his job duties, requiring the City to provide a defense." Crise,supra , at ¶ 12-13.

{¶ 31} Further, the Tenth District, in Cantwell, supra, held the sheriff's deputy assigned to the jail was not entitled to a defense because he was not acting in the scope of his employment when he committed the conduct at issue. The court stated:

{¶ 32} [W]e can find no reasonable minds could conclude that appellant [deputy] could have believed himself to have been acting in appellee's [county's] best interest. Although appellant argues that he was on duty, in uniform, and serving meals to prisoners as part of his assigned duties, his acts here went far beyond his mere serving of meals to inmates. Appellant's act of taking a photograph of an inmate's penis on a sandwich and then serving the sandwich to another inmate did not further appellee's business in any manner and was plainly not in appellee's best interest. Also, although serving food to inmates is part of appellant's job duties, the acts in question did not occur during his actual serving of a meal. Instead, appellant engaged in activities that did not involve his duty to serve meals, i.e., the asking of an inmate to place his penis on a sandwich and the taking of a photograph of the inmate's genitals. Although appellant did eventually serve the sandwich to Copeland, the meal served was one plainly unauthorized by appellee and obviously outside of appellant's authorized duties. Id. at ¶ 16.

{¶ 33} In light of the foregoing authority, appellant could not have reasonably believed he was acting in the District's best interests when he sexually abused the plaintiffs in the gym and at the newspaper's offices. Although he was employed as a basketball coach when he abused the plaintiffs, his acts obviously exceeded his coaching duties. His pursuit of both girls and his sexual assaults against them did not further the District's business in any way and were obviously not in its best interests. Moreover, the sexual acts themselves were plainly outside the scope of appellant's duties. Thus, pursuant to the joint stipulation, the trial court's finding that appellant's sexual activity with the plaintiffs could not reasonably be considered to be in the scope of his employment was supported by competent, credible evidence.

{¶ 34} In finding that appellant did not act in good faith or in the scope of his employment, the trial court obviously found Ms. Wilson's and Ms. Ziemski's allegations to be more credible than appellant's. In light of the highly specific nature of the plaintiffs' allegations and the fact that appellant's only "evidence" in opposition was his general, self-serving denial, we cannot say the trial court clearly lost its way in finding the plaintiffs' allegations to be more credible. Further, in light of these findings, the trial court did not err in concluding that appellant was not entitled to a defense. Thus, the court implicitly found that appellant was not entitled to reimbursement for his expenses incurred in the underlying action or in his declaratory-judgment action.

{¶ 35} For the reasons stated in this opinion, the assignments of error lack merit and are overruled. It is the order and judgment of this court that the judgment of the Ashtabula County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.


source: Caselaw Access Project

author: McFarland, J.

license: Public Domain

text:
    Janice M. JACKSON, Appellant-Appellant, v. AMERICAN BULK COMMODITIES, INC., Employer-Appellee,
    Sarah Morrison, Administrator, Bureau of Workers' Compensation, Administrator.
    No. 17CA33
    Court of Appeals of Ohio, Fourth District, Washington County.
    Released: August 31, 2018
    Robert J. Dodd, Jr. Co., L.P.A., New Lexington, Ohio, for Appellant.
    Martin J. Boetcher, Harrington, Hoppe & Mitchell, LTD., Youngstown, Ohio, for Appellee, American Bulk Commodities, Inc.
    Michael DeWine, Ohio Attorney General, and Patsy A. Thomas, Assistant Attorney General, Columbus, Ohio, for Administrator, Ohio Bureau of Workers' Compensation.
    DECISION AND JUDGMENT ENTRY

      Ohio Bureau of Workers' Compensation has not filed a brief in this matter on appeal.

   McFarland, J.

{¶ 1} Janice M. Jackson appeals from the Washington County Common Pleas Court's dismissal of her complaint, which was filed as part of an appeal from an adverse ruling by the Industrial Commission, with regard to her workers' compensation claim. Currently on appeal to this Court, Appellant contends that the trial court erred in directing that her complaint be dismissed upon the basis that it was not timely filed. Because we conclude the trial court abused its discretion in dismissing Appellant's timely-filed complaint after her workers' compensation appeal had been properly re-filed pursuant to R.C. 2305.19, Ohio's savings statute, Appellant's sole assignment of error is sustained. Accordingly, the decision of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion.

FACTS

{¶ 2} Appellant, Janice Jackson, claims she sustained an on-the-job injury while employed by Appellee, American Bulk Commodities, Inc. (hereinafter "ABC"), on November 22, 2015. More specifically, she claims that while bending down and leaning forward to hook up a blower hose to a trailer and to open a valve, she experienced a sharp onset of pain in her lower back. She claims this incident resulted in several injuries, including a sacroiliac sprain, a right paracentral disc herniation at L5-S1, and a substantial aggravation of pre-existing L5-S1 discopathy. After an Industrial Commission hearing held on February 18, 2016, a District Hearing Officer entered an order allowing Appellant's claims for right sacroiliac sprain and right L5-S1 paracentral disc protrusion, and disallowing her claim for substantial aggravation of pre-existing L5-S1 discopathy.

{¶ 3} The employer, Appellee ABC, appealed the decision of the District Hearing Officer and as a result another Industrial Commission Hearing was held on April 13, 2016. On May 6, 2016, a Staff Hearing Officer issued an order vacating the decision of the District Hearing Officer and disallowing Appellant's claim in its entirety. Appellant appealed that decision but an order was issued refusing to hear her appeal. Appellant then requested reconsideration of the decision on June 1, 2016. However, her request was denied on June 9, 2016.

{¶ 4} Subsequently, on June 30, 2016, Appellant filed a timely notice of appeal of the decision by the Industrial Commission in the Washington County Court of Common Pleas, identified as case number 16WC177. Forty-two days later, on August 11, 2016, Appellant filed her complaint, or petition. On August 22, 2016, Appellee ABC filed a motion to dismiss, asking the trial court to dismiss Appellant's appeal because her complaint was not filed within thirty days, as required by R.C. 4123.512. At that juncture, Appellant elected to file a voluntarily notice of dismissal without prejudice under Civ.R. 41(A)(1), reserving the right to refile within one year, pursuant to R.C. 2309.19, Ohio's saving's statute.

{¶ 5} Thereafter, on June 5, 2017, Appellant filed two documents. The first document was entitled "Refiled Notice of Appeal" and was given a new case number, 17WC126. The second document was entitled "Refiled Complaint" and was filed under case number 17WC126 as well. Appellee ABC again filed a motion to dismiss, arguing that "[t]he voluntary dismissal of the original case, 16WC177, and later refiling of the same case, 17WC126, does not cure the untimeliness of the filing of the Petition/Complaint in the original case." Appellant filed a memorandum contra to the motion to dismiss, arguing that "[s]ince the Refiled Notice of Appeal and Complaint were simultaneously filed on June 5, 2017, it cannot be said that the Complaint submitted in the refiled action was untimely and that dismissal is warranted."

{¶ 6} Appellee ABC thereafter filed a reply brief in support of its motion to dismiss, arguing that 1) Appellant dismissed only her complaint and not her entire appeal; 2) there is no authority which provides that an appellant may voluntarily dismiss an appeal under Civ.R. 41(A)(1) or R.C. 4123.512 ; 3) even if Ohio law allowed such a dismissal, because R.C. 4123.512 requires that an appeal be filed within sixty days after the date of the receipt of the Industrial Commission decision, and because the refiled notice of appeal was not filed until June 5, 2017, it was untimely; and 4) there is no legal authority that supports the proposition that R.C. 2305.19 can be used to give a party an additional year to refile a second notice of appeal in a workers' compensation lawsuit.

{¶ 7} In response, Appellant filed a reply memorandum stating that her voluntary dismissal only served to dismiss her complaint, and not her appeal. She argued, however, that because her refiled notice of appeal and complaint were presented to the court "simultaneously," there was no valid basis upon which to dismiss her refiled case. The trial court ultimately issued a judgment entry on September 22, 2017, granting Appellee's motion to dismiss and dismissing Appellant's refiled complaint. It is from this judgment entry that Appellant now brings her timely appeal, setting forth one assignment of error for our review.

ASSIGNMENT OF ERROR

"I. PLAINTIFF-APPELLANT ALLEGES THAT THE TRIAL COURT ERRED IN DIRECTING THAT HER COMPLAINT FILED IN CASE NUMBER 17WC126 BE DISMISSED UPON THE BASIS THAT IT WAS NOT TIMELY FILED."

STANDARD OF REVIEW

{¶ 8} Civ.R. 41(B)(1) provides that where a plaintiff fails to prosecute an action, the court upon motion of a defendant may, after notice to the plaintiff's counsel, dismiss the action. The power of a court to dismiss an action for a plaintiff's failure to prosecute is vested in the sound discretion of the trial court and appellate review is confined solely to determining whether the trial court abused that discretion. Akers v. Johnson Controls, Inc. , 4th Dist. Highland No. 96CA900, 1997 WL 360569, *4 (June 27, 1997) ; citing Pembaur v. Leis , 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982). As further explained in Akers , Civ.R. 41(B)(1) provides a proper mechanism for the dismissal of a workers' compensation appeal because it is the claimant's burden of proving his or her entitlement to participate in the workers' compensation fund. Akers at *4 ; citing Zuljevic v. Midland-Ross Corp. , 62 Ohio St.2d 116, 118-119, 403 N.E.2d 986 (1980) ; see, also , French v. Sysco Food Serv. of Cleveland , 8th Dist. Cuyahoga No. 69688, 1996 WL 257486 (May 16, 1996).

{¶ 9} " 'A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.' " Wootten v. Culp , 2017-Ohio-665, 85 N.E.3d 198, ¶ 31 (4th Dist.) ; quoting State v. Keenan , 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7 ; quoting State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. "An abuse of discretion includes a situation in which a trial court did not engage in a 'sound reasoning process'; this review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Felts , 2016-Ohio-2755, 52 N.E.3d 1223, ¶ 29 (4th Dist.) ; quoting Darmond at ¶ 34.

{¶ 10} However, "[a]lthough the abuse of discretion standard usually affords maximum [deference] to the lower court, no court retains discretion to adopt an incorrect legal rule or to apply an appropriate rule in an inappropriate manner. Such a course of conduct would result in an abuse of discretion." 2-J Supply, Inc. v. Garrett & Parker, L.L.C. , 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, 2015 WL 4113330, ¶ 9. See Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals , 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16.

LEGAL ANALYSIS

{¶ 11} In her sole assignment of error, Appellant contends that the trial court erred in directing that her complaint filed in case number 17WC126 be dismissed upon the basis that it was not timely filed. Appellant argues that under the provisions of R.C. 4123.512, the only act required to perfect an appeal and confer jurisdiction upon the court is the filing of a notice of appeal, which she did. Appellant contends that the untimely filing of her complaint in case number 16WC177 did not prejudice Appellee, and that the untimeliness of her original complaint in case number 16WC177 has no application to case number 17WC126. Appellant further argues that because her complaint in case number 17WC126 was filed within one year of the previously filed voluntary notice of dismissal in case number 16WC177, it was not untimely.

{¶ 12} Appellee contends, on the other hand, that the original complaint filed in the 16WC177 case was untimely, and that the refiling of the complaint in case number 17WC126 does not cure the untimeliness of the original complaint. More specifically, Appellee argues that because Appellant did not timely commence the action, by failing to timely file the complaint in the original case, the savings statute has no application. Appellee also argues that Appellant voluntarily dismissed her complaint only, and not her notice of appeal, and further argues that Civ.R. 41(A)(1) does not provide for a voluntary dismissal of a notice of appeal. Additionally, Appellee argues that in both cases, Appellant should have been required to show excusable neglect or good cause as to why her complaint was not timely filed, but that she failed to do so. Appellee contends, as a result, that the trial court correctly dismissed Appellant's refiled complaint.

{¶ 13} As indicated above, this case involves Appellant's appeal to the Washington County Court of Common Pleas from an unfavorable decision issued by the Industrial Commission. R.C. 4123.512 governs Workers' Compensation appeals to courts of common pleas and provides as follows, in pertinent part:

"(A) The claimant or the employer may appeal an order of the industrial commission made under division (E) of section 4123.511 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state, or in which the contract of employment was made if the exposure occurred outside the state. * * * Like appeal may be taken from an order of a staff hearing officer made under division (D) of section 4123.511 of the Revised Code from which the commission has refused to hear an appeal. Except as otherwise provided in this division, the appellant shall file the notice of appeal with a court of common pleas within sixty days after the date of the receipt of the order appealed from or the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer's decision under division (D) of section 4123.511 of the Revised Code. * * * The filing of the notice of the appeal with the court is the only act required to perfect the appeal.
* * *
(D) Upon receipt of notice of appeal, the clerk of courts shall provide notice to all parties who are appellees and to the commission.
The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action. Further pleadings shall be had in accordance with the Rules of Civil Procedure, provided that service of summons on such petition shall not be required and provided that the claimant may not dismiss the complaint without the employer's consent if the employer is the party that filed the notice of appeal to court pursuant to this section." (Emphasis added).

{¶ 14} Thus, both claimants and employers may appeal an unfavorable decision issued by the Industrial Commission to a court of common pleas, provided a notice of appeal is filed within sixty days after the date of the receipt of the order appealed from or the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer's decision. Further, whether it is the claimant who appeals or the employer who appeals, a claimant is required to file a petition within thirty days after the filing of the notice of appeal. This is because regardless of who files the appeal, "it is the claimant's burden to prove his or her case before the trial court." Ferguson v. State , 151 Ohio St.3d. 265, 2017-Ohio-7844, 87 N.E.3d 1250, ¶ 12 ; citing Robinson v. B.O.C. Group, Gen. Motors Corp. , 81 Ohio St.3d 361, 364, 691 N.E.2d 667 (1998) (superseded by statute regarding the claimant's right to voluntarily dismiss a complaint in an employer-initiated appeal); citing Zuljevic v. Midland-Ross Corp. , supra , at 118, 403 N.E.2d 986. As explained in Ferguson at ¶ 12"[t]he petition is for all intents and purposes a complaint." (internal citations omitted).

{¶ 15} As set forth above, Appellant timely filed a notice of appeal to the Washington County Court of Common Pleas on June 30, 2016, and her appeal was assigned the case number 16WC177. However, she failed to further file a petition, or complaint, within thirty days thereafter. Instead, she filed it forty-two days later, on August 11, 2016, without requesting leave to do so. In response, Appellee filed a motion to dismiss based upon the untimely filing of the complaint. Rather than attempting to show cause for her late filing, Appellant elected to file voluntary notice of dismissal pursuant to Civ.R. 41(A)(1). The notice, entitled "Notice of Voluntary Dismissal" contained the following language:

"Pursuant to Rule 41 (A) (1) of the Ohio Rules of Civil Procedure, the Plaintiff, Janice Jackson, hereby voluntarily dismisses her action against Defendants, American Bulk Commodities, Inc. and Stephen Buehrer, Administrator, without prejudice by the filing of this notice. This voluntary dismissal pursuant to Rule 41 (A) (1)terminates this case by failure other than upon the merits and, therefore, brings it within the meaning of the Savings Statute as set forth in Section 2305.10, Ohio Revised Code."

{¶ 16} Although the parties and the trial court seem to agree that Appellant voluntarily dismissed only her complaint and not her appeal, this Court believes the answer to that question requires further analysis and is, in fact, dispositive of the issues on appeal. A review of the record from case number 17WC126 and the portions of the record from case number 16WC177 that are before us, indicates that after Appellant filed her Notice of Voluntary Dismissal on September 23, 2016, the trial court thereafter closed the case on March 31, 2017. Then, on June 5, 2017, Appellant refiled her notice of appeal, as well as her complaint. Although they were filed at the same time, they were separate documents and one was not an attachment to the other. The refiled notice of appeal appears first in the docket and was assigned a new case number of 17WC126. The refiled complaint was filed under case number 17WC126, rather than case number 16WC177, which had already been closed by the trial court. We conclude that this factual history lends itself to the conclusion that Appellant did not just voluntarily dismiss her complaint, but that she also dismissed her appeal.

{¶ 17} Appellee argues that there is no legal authority which provides for the voluntary dismissal of an appeal. However, this Court recently scrutinized whether a workers' compensation claimant voluntarily dismissed simply his complaint, or his entire appeal, in Yates v. G & J Pepsi-Cola Bottlers , 4th Dist. Scioto No. 15CA3711, 2016-Ohio-1436, 2016 WL 1298730. The Yates case involved dual appeals, one by the claimant and one by the employer, both of which were consolidated. Yates eventually "filed a notice of voluntary dismissal without prejudice of his part of the appeal." Id. at ¶ 1. Yates later sought to refile his complaint, arguing the court retained jurisdiction over his appeal. Id. at ¶ 2. After analyzying Yate's notice of voluntary dismissal and determining that Yates dismissed only his complaint, rather than his entire appeal, we held that the trial court had retained jurisdiction over the appeal and that Yates had the right to refile his complaint within one year, pursuant to Ohio's savings statute. Id.

{¶ 18} In reaching our decision, we relied heavily upon the language actually used in Yates' "Notice of Partial Dismissal Without Prejudice," which read as follows:

"Now comes the Plaintiff and hereby gives notice that portion of this cause of action dealing with Plaintiff's appeal of the request [sic] condition of Right Shoulder Impingement Syndrome is dismissed without prejudice pursuant to the terms of Ohio Rule of Civil Procedure 41(A). Plaintiff's Complaint still is active for Defendant's appeal of the allowed condition of C6-7 Disk Herniation. Such dismissal is without prejudice of future actions, shall be for failure other than upon the merits and shall specifically allow the plaintiff to retain the right to refile its cause of action within one year as prescribed by law." Id. at ¶ 4. (Emphasis added).

Further review of the Yates decision suggests Yates only refiled his complaint, and not his notice of appeal, one year later.

{¶ 19} The record presently before us, however, indicates that the trial court closed Appellant's first appeal after her voluntary notice of dismissal was filed. Further, and unlike Yates, Appellant refiled both her notice of appeal and her complaint, and the clerk assigned them a new case number that was different from the original appeal. And, the language contained in Appellant's voluntary notice of dismissal states that she is dismissing her "action" against Appellees, not her "cause of action," and more importantly, that the "dismissal terminates this case."

{¶ 20} Although this Court construed the dismissal of a "cause of action" to mean the dismissal of the complaint only in Yates, here we conclude Appellant's use of the word "action," rather than the phrase "cause of action," in conjunction with the other factual elements of this case leads to the conclusion that Appellant did, in fact, dismiss her entire appeal, not just her complaint. For example, in Yates at ¶ 11-12 we determined the use of the phrase "cause of action" in the dismissal notice was consistent with the use of the phrase "cause of action" contained in 4123.512(D), which provides, with regard to the filing of the complaint, or petition, as follows:

"The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action ." (Emphasis added).

However, after reviewing this section in light of the facts before us in the present appeal, we note a distinction between the use of the phrase "cause of action" and the single word "action" contained within the wording of the statute itself. As stated, in the case presently before us, Appellant used the word "action" in her notice of voluntary dismissal, not "cause of action."

{¶ 21} Further, in R.C. 4123.512(A), after setting forth the process and time limits for the filing of the notice of appeal, the section states as follows:

"If an action has been commenced in a court of a county other than a court of a county having jurisdiction over the action , the court, upon notice by any party or upon its own motion, shall transfer the action to a court of a county having jurisdiction." (Emphasis added).

We believe the use of the word "action" in this section of the statute clearly refers to the appeal itself, not just the "cause of action" set forth in the complaint. See Lewis v. Connor , 21 Ohio St.3d 1, 4, 487 N.E.2d 285 (1985) (equating the word "action" with "notice of appeal" in discussing whether a notice of appeal was timely filed under R.C. 4123.512 and thus the action timely commenced for purposes of application of the savings statute); Kusa v. United Parcel Service , 61 Ohio Misc.2d 556, 557, 580 N.E.2d 851 (1990) (construing a joint stipulation of dismissal without prejudice of the "within action" to be a dismissal of both the complaint and the notice of appeal, where the employer filed the notice of appeal and the claimant filed the complaint). Additionally, here, Appellant further specified in her notice of voluntary dismissal that the dismissal "terminates" the case. No such language was employed by Yates in his notice of dismissal.

{¶ 22} Based upon the foregoing, we conclude that Appellant's Notice of Voluntary Dismissal filed in case number 16WC177 dismissed the entire action, including the complaint and the notice of appeal. Despite Appellee's argument that there is no legal authority that provides for the voluntary dismissal of an appeal, the in-depth analysis conducted by this Court in Yates , which sought to determine whether Yates voluntarily dismissed his entire appeal or just his complaint, suggests otherwise. Yates at ¶ 13. Further, in Kusa , which involved an employer-initiated appeal, it was determined that the parties could jointly, voluntarily dismiss the entire action with the filing of a "Stipulation of Dismissal Without Prejudice" which provided for "dismissal without prejudice of the within action." Kusa at 557, 580 N.E.2d 851. Thus, the court determined that an employer could voluntarily dismiss its notice of appeal and the claimant could voluntarily dismiss his complaint. The present case involves a claimant-initiated appeal and thus the filer of both the notice of appeal and the complaint were one in the same. Based upon the reasoning of Kusa , coupled with this Court's analysis in Yates , we conclude a claimant may voluntarily dismiss a notice of appeal in an action brought pursuant to R.C. 4123.512, in a claimant-initiated appeal, as the notice of appeal is the document that actually appears to commence the action, rather than the complaint, as in other civil matters. Yates at ¶ 10"* * * in a workers' compensation appeal under R.C. 4123.512, 'the filing of the complaint does not commence the action and confer jurisdiction.' McKinney v. Ohio Bur. of Workers' Comp. , 10th Dist. Franklin No. 04AP-1086, 2005-Ohio-2330 [2005 WL 1118194], ¶ 4. Instead, under the plain language of the governing statute, the only act required to perfect the appeal is the timely filing of the notice of appeal. Spencer v. Freight Handlers, Inc. , 131 Ohio St.3d 316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 8 ; R.C. 4123.512(A).")

{¶ 23} Finally, in Lewis v. Connor , supra , at 2, 487 N.E.2d 285, the Supreme Court of Ohio answered in the affirmative with regard to the question of whether R.C. 2305.19, Ohio's saving's statute, is applicable to the complaints filed on appeal from a decision of the Industrial Commission pursuant to R.C. 4123.519. The Lewis court found as follows:

"Where a notice of appeal is filed within the time prescribed by R.C. 4123.519 and the action is dismissed without prejudice after expiration of that time, R.C. 2305.19, the savings statute, is applicable to workers' compensation complaints filed in the common pleas court." Id. at 4, 487 N.E.2d 285.

The Kusa court took that reasoning a step further, in an employer-initiated appeal, holding as follows:

"* * * since this statutory section [ R.C. 4123.519, now R.C. 4123.512 ] limits the remedy, not the right, it cannot be interpreted to allow the savings statute to apply to litigants obliged to file complaints, but not to apply to those who must file notices of appeal.
The original belief of this court that the savings statute applies to cases filed under R.C. 4123.519 was ultimately affirmed in Lewis . It is the further belief of this court that once an action is timely filed pursuant to R.C. 4123.519 and dismissed without prejudice by both counsel, the right to refile is also governed by R.C. 2305.19 and it makes no difference whether the application is to a notice of appeal or to a complaint ." Kusa at 559 [580 N.E.2d 851] ; see also Yates , supra , at ¶ 15 (discussing Kusa's holding that the savings statute applies to both a complaint and a notice of appeal, and that application of Kusa would result in the trial court retaining jurisdiction over Yates' appeal even if his dismissal entry dismissed his appeal as well as his complaint, but finding Kusa inapposite and factually distinguishable in light of the determination that Yates dismissed only his complaint). (Emphasis added)

We believe the reasoning in Kusa , which involved an employer-initiated appeal, should apply equally to a claimant-initiated appeal, with regard to whether a claimant may voluntarily dismiss and then refile, pursuant to the savings statute, not only a complaint, but also a notice of appeal.

{¶ 24} Thus, because we have determined that Appellant voluntarily dismissed not only her complaint, but also her timely-filed original appeal, and that her refiled notice of appeal was filed within one year of her voluntary dismissal, as permitted by the savings statute, we conclude the trial court erred and abused its discretion in granting Appellee's motion to dismiss and in dismissing Appellant's complaint in case number 17WC126. We further conclude this result is in line with R.C. 4123.95's statutory mandate which requires courts to liberally construe the workers' compensation laws in favor of employees. Once Appellant's notice of appeal was timely refiled pursuant to the savings statute, she had thirty days from that time to refile her complaint. As set forth above, Appellant filed her refiled notice of appeal and her refiled complaint in case number 17WC126 on the same day and thus, her refiled complaint was timely filed. Accordingly, Appellant's sole assignment of error is sustained, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED.

Abele, J.: Concurs in Judgment and Opinion.

Hoover, P.J: Dissents with Dissenting Opinion.

{¶ 25} I respectfully dissent from the lead opinion. Specifically, I disagree with the lead opinion's conclusion that appellant's Civ.R. 41(A)(1) voluntary notice of dismissal acted to dismiss both appellant's workers' compensation complaint and her workers' compensation notice of appeal. I further disagree with the lead opinion's conclusion that Ohio's savings statute, R.C. 2305.19, applies to a workers' compensation notice of appeal. Therefore, I would overrule the appellant's sole assignment of error and affirm the judgment of the trial court.

{¶ 26} In Yates , discussed in the lead opinion, this Court concluded that the claimant's notice of voluntary dismissal filed pursuant to Civ.R. 41(A)(1) dismissed only his complaint, and not his notice of appeal. In doing so, the Court reasoned, inter alia , that under the plain language of Civ.R. 41(A)(1)"the voluntary dismissal affected only the claims asserted [in the] complaint; * * * [and] does not purport to dismiss either his or [the employer's] appeals[.]" Yates at ¶ 11. The lead opinion, in its attempt to distinguish Yates , argues that the language used in this case's dismissal entry substantially differs from the language used in the Yates dismissal entry; but it totally ignores the plain language of Civ.R. 41(A)(1). I simply do not agree with this rationale and would hold that Civ.R. 41(A)(1) does not provide for a voluntary dismissal of a workers' compensation notice of appeal.

{¶ 27} I also disagree with the lead opinion's conclusion that Ohio's saving statute applies not only to workers' compensation complaints, but also to workers' compensation notices of appeal. In fact, this Court has previously decided to the contrary; and I see no reason to break from established precedent. See Case v. Ohio Bur. of Workers' Comp. , 4th Dist. Washington No. 96CA1, 1996 WL 451359, *2 (Aug. 1, 1996) ("Thus, [the Ohio Supreme Court] stated [in Lewis v. Connor , supra ,] that the savings statute applies to workers' compensation complaints. The court did not state that the savings statute applies to workers' compensation notices of appeal.")

{¶ 28} For all the foregoing reasons, I would overrule appellant's sole assignment of error and affirm the trial court's judgment.

      R.C. 2305.19 embodies Ohio's savings statute and provides as follows in section (A): "In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of time of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant."

      We note at this juncture that only the record for the 17WC126 case was transmitted to this Court on appeal. We do not have the record for the 16WC177 case. The only reason we have access to the contents of the notice of voluntary dismissal filed in the 16WC177 case is because it was attached as an exhibit to Appellee ABC's motion to dismiss that was filed in the 17WC126 case. We also have a copy of the docket sheet for case number 16WC177 because it was likewise attached as an exhibit to Appellee's motion to dismiss.

      Now identified as R.C. 4123.512.


author: HORTON, J.

text:
    Justin S. DORAN et al., Plaintiffs-Appellees/Cross-Appellants, v. HEARTLAND BANK, Defendant-Appellant/Cross-Appellee.
    No. 16AP-586
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on May 8, 2018
    On brief: Vorys, Sater, Seymour and Pease LLP, Natalie M. McLaughlin, Nelson D. Cary and Daniel J. Clark, Columbus, for appellees/cross-appellants. Argued: Natalie M. McLaughlin.
    On brief: Meyer & Kerschner, Ltd., Michael D. Stultz, Tiffin, and Christopher C. Camboni ; Ice Miller LLP, and Paul L. Bittner, Columbus, for appellant/cross-appellee. Argued: Michael D. Stultz.
    On brief: Cooper & Elliott, LLC, and Rex H. Elliott, Columbus, as amicus curiae.
    DECISION
   HORTON, J.

{¶ 1} Defendant-appellant/cross-appellee, Heartland Bank ("Heartland" or "appellant"), and plaintiffs-appellees/cross-appellants, Justin S. Doran ("Doran") and Columbus First Bank ("Columbus First" or collectively the "appellees"), appeal from a July 18, 2016 decision and entry of the Franklin County Court of Common Pleas. Appellees have filed a motion to dismiss on the grounds of mootness. For the reasons that follow, we dismiss the appeal as moot.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In light of our resolution of this matter, we will briefly summarize the facts. Doran worked for another bank for eight years and was trained as a commercial loan officer prior to starting work for Heartland on February 4, 2013. Several weeks after starting employment, Heartland requested Doran sign an employment agreement that had non-compete and non-solicitation covenants. As he had already resigned from his previous job and been working at Heartland for several weeks, he decided to sign the agreement.

{¶ 3} As time went on, Doran became one of Heartland's top commercial loan officers. In February 2015, Doran was invited to participate in Heartland's performance driven retirement plan. The performance-based retirement plan consists of (1) a bank-funded investment for the employee, and (2) a life insurance policy for the employee. The banking industry commonly calls these benefits Bank-Owned Life Insurance plans or "BOLIs." Doran's BOLI also had one year non-compete and non-solicitation restrictions on his employment after separating from Heartland. It was Heartland's intention for the BOLI plan restrictions to take the place of the restrictions in Doran's employment agreement. Doran signed the BOLI plan.

{¶ 4} In May 2016, Doran decided to take a job with Columbus First. Doran resigned on May 4, 2016 and requested that Heartland release him from his non-compete restriction. Doran's anticipated start date with Columbus First was May 19, 2016. Shortly before that date, Heartland sent letters to Doran and Columbus First, threatening to pursue all available remedies contending that the employment of Doran by Columbus First was in violation of Doran's BOLI plan and that Columbus First had tortiously interfered with Doran's contract with Heartland. In response, Columbus First delayed Doran's start date, but did not rescind its offer of employment. Columbus First attempted to resolve the dispute to no avail.

{¶ 5} As such, Doran remained out of work. Without a resolution in sight, Doran and Columbus First decided to file for declaratory relief so a court could determine whether the restrictions were enforceable. On June 7, 2016, Doran and Columbus First filed their complaint, seeking a declaratory judgment concerning the enforceability of the non-compete and non-solicitation restrictions contained in the BOLI plan. On June 21, 2016, Heartland filed its answer and counterclaim seeking an order declaring that (1) the BOLI agreement was valid and restricts Doran from working at Columbus First until May 10, 2017, (2) Doran breached the employment agreement and BOLI plan, and (3) Columbus First wrongfully induced Doran to breach said agreements.

{¶ 6} The trial court subsequently set the declaratory judgment hearing for July 11, 2016. The hearing lasted two and one-half days, and included numerous witnesses, concluding on July 13, 2016. On July 18, 2016, the trial court issued its judgment entry and found the following:

In light of the foregoing, the Court finds the restraints and resulting hardships on Doran with respect to the non-compete restriction exceed those which are reasonable to protect Heartland's legitimate business interests. * * * The Court therefore strikes the non-compete clause in Doran's BOLI agreement, which agreement itself provides that "unenforceable provisions may be stricken."
With respect to the non-solicitation restriction in Doran's BOLI agreement-since Heartland's position is that the restrictive covenants in the BOLI agreements were meant to replace the ones in the Employee Agreements-the Court finds the restriction is overly broad and vague. However, rather than striking that clause, the Court finds it best to modify the same.
* * *
Having stricken the non-compete clause, the Court finds Heartland's Counterclaims, which are based on the terms of the stricken non-compete restriction, fail as a matter of law.

Id. at 17-19.

{¶ 7} On August 16, 2016, Heartland filed a notice of appeal and, on August 24, 2016, Doran and Columbus First filed a notice of cross-appeal.

{¶ 8} Also, on August 16, 2016, Heartland moved the trial court for a stay of the declaratory judgment entered in this case pending appeal. On August 24, 2016, the trial court granted the stay but stated that "[t]he stay shall go into effect upon the posting of a supersedeas bond in the amount of $100,000.00." (Order of Stay of Declaratory Jgmt. Pending Appeal.) On September 13, 2016, Heartland moved the trial court for approval of the bond. Attached to the motion was the proposed appeal bond with Heartland as the principal and Westfield Insurance Company as the surety. On October 26, 2016, the trial court denied Heartland's motion for approval of the bond and specifically stated "[h]aving reviewed [Heartland's] Motion for Court Approval of Bond and the surety bond attached thereto, the Court hereby DENIES the same. Defendant shall post the $100,000 amount with the Clerk of Court as bond." (Oct. 26, 2016 Entry Denying Defendant's Mot. for Court Approval of Bond.) Our review of the record and the trial court's docket shows that the $100,000 amount was never posted with the clerk of court. As such, the stay never went into effect.

{¶ 9} On April 25, 2017, appellees filed a motion to dismiss for lack of subject-matter jurisdiction claiming that the appeal is moot. On April 28, 2017, we stated that the motion to dismiss shall be submitted to the court as the court determines the merits of this appeal. (Journal Entry at 1.)

II. ASSIGNMENTS OF ERROR

{¶ 10} Heartland assigns the following errors:

[I.] The trial court erred when it failed to apply the Raimonde v. Van Vlerah test to the non-competition covenant at issue in this case.
[II.] The trial court erred when it applied irrelevant factors under the Raimonde v. Van Vlerah test to the non-competition covenant at issue in this case.

{¶ 11} Doran and Columbus First assign the following errors:

[I.] The Trial Court erred in deciding to modify, rather than strike, the vague and overbroad non-solicitation restriction contained in the Performance Driven Retirement Plan Agreement.
[II.] The Trial Court's modification of the non-solicitation restriction contained in the Performance Driven Retirement Plan Agreement fails to cure the overbreadth and vagary of that restriction to make it enforceable.

III. MOTION TO DISMISS

{¶ 12} Before addressing the assignments of error, we must first address appellees' motion to dismiss. In Swan Super Cleaners, Inc. v. Franklin Cty. Bd. of Commrs. , 2017-Ohio-8978, 101 N.E.3d 591, ¶ 14 (10th Dist.), quoting Grove City v. Clark , 10th Dist. No. 01AP-1369, 2002-Ohio-4549, 2002 WL 2025334, ¶ 11, quoting Culver v. Warren , 84 Ohio App. 373, 393, 83 N.E.2d 82 (11th Dist.1948), we stated:

" 'Actions or opinions are described as "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 legal effect upon a then-existing controversy." ' "

{¶ 13} Where a question before a court has become moot, the jurisdiction of the court is lost because "the courts of Ohio have long recognized that a court cannot entertain jurisdiction over a moot question. It is not the duty of a court to decide purely academic or abstract questions." James A. Keller, Inc. v. Flaherty , 74 Ohio App.3d 788, 791, 600 N.E.2d 736 (10th Dist.1991). "When a case is deemed moot, the defending party is entitled to a dismissal as a matter of right." Lund v. Portsmouth Local Air Agency , 10th Dist. No. 14AP-60, 2014-Ohio-2741, 2014 WL 2895887, ¶ 6, citing United States v. W.T. Grant Co. , 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

{¶ 14} In appellees' motion to dismiss, they argue that when a contract is no longer enforceable due to the expiration of a time period specified in the contract, any suit seeking a declaratory judgment regarding the scope of the contract is moot. At issue in this case is the enforceability of non-competition and non-solicitation clauses in Doran's employment contract with Heartland. Under the terms of the contract, both of those clauses were subject to a one year "restricted period" defined as "the one-year period immediately after the Executive's Disability or Separation from Service." (Jgmt. Entry at 6.) Doran's employment was separated on May 9, 2016. Appellees argue that the restrictive period ended on May 9, 2017, bringing any contractual non-compete or non-solicitation obligation Doran may owe to Heartland to an end and, as such, the case became moot and this court is deprived of subject-matter jurisdiction.

{¶ 15} Heartland Bank raises two arguments in opposition to appellees' motion to dismiss. First, Heartland argues that there is a live controversy because if the trial court's declaratory judgment is reversed, its counterclaims for tortious interference and breach of contract will be revived, even if the contract term has expired.

{¶ 16} As an initial matter, Heartland did not appeal the dismissal of its counterclaims by the trial court. Where an appellant fails to mention counterclaims in its assignments of error, and has failed to discuss the counterclaim in briefing, those claims are not subject to review by the court of appeals. United States Bank v. Malyuk , 8th Dist. No. 101472, 2015-Ohio-2385, 2015 WL 3794550, ¶ 9-14. See also App.R. 16 (requiring appellant to set forth the assignments of error presented for review and to state the relief sought).

{¶ 17} In addition, prior to the trial court's judgment, Doran did not work for Columbus First. On July 18, 2016, the trial court ruled that the non-compete restriction is unenforceable. The trial court required Heartland to post $100,000 as a supersedeas bond in order to stay its judgment. Heartland failed to post the requisite bond. As such, the trial court's judgment has remained effective during the pendency of this appeal. Blood v. Nofzinger , 162 Ohio App.3d 545, 2005-Ohio-3859, 834 N.E.2d 358 (6th Dist.), ¶ 21, quoting State v. Suchy , 6th Dist. No. L-02-1243, 2003-Ohio-3457, ¶ 27 (finding a " 'judgment remains effective unless stayed pursuant to Civ.R. 62, reversed or vacated on appeal, App.R. 12, or superseded by another judgment' "). See also R.C. 2505.09 (holding "an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee").

{¶ 18} Doran did not breach the contract and Columbus First did not tortiously interfere with the contract during the pendency of the appeal as they both lawfully complied with an effective judgment of the trial court. After May 9, 2017, any claim for breach of contract or tortious interference is moot as a contract cannot not be breached or tortiously interfered with after it expires.

{¶ 19} Secondly, Heartland cites Trim-Line of Toledo v. Carroll , 6th Dist. No. L-86-176, 1987 WL 7056 (Feb. 25, 1987), in support of its argument that the restrictive covenants cannot expire while they are litigated, and should be prospectively extended in the event that this court reverses the trial court's declaratory judgment ruling. Trim-Line is inapposite here.

{¶ 20} In that case, the employee signed a two-year non-compete covenant. However, immediately after leaving the appellant's employ, up until the time of the Sixth District Court of Appeal's decision which was almost two years later, the employee had directly competed against the employer. Unlike this case, the former employer sought injunctive relief to enjoin the employee from violating his non-compete restriction. The Sixth District found the non-compete clause to be enforceable, but reduced the restrictive time period from two years to one year. In addition, since the employee immediately competed against the former employer, the court held that it would be inequitable for the employee to evade the force of any injunction by using "litigation as a delay tactic." Id. at *5. As a result, the one-year period was to be enforced prospectively.

{¶ 21} In the instant case, Doran and Columbus First complied with an effective judgment entry that was never stayed, and Heartland never sought injunctive relief. The current case is a declaratory judgment action that asked the trial court to determine whether the non-compete and non-solicit covenants were valid. Those restrictions expired on May 9, 2017. As such, Heartland cannot seek injunctive relief because a party must file for an injunction prior to the expiration of the restrictions. See Cynergies Consulting, Inc. v. Wheeler , 8th Dist. No. 90225, 2008-Ohio-3362, 2008 WL 2623960, ¶ 25-29.

{¶ 22} In cases for declaratory judgment regarding a provision in a contract, the case becomes moot when, according to the terms of the contract, the contractual provision expires. In Harkai v. Scherba Industries , 9th Dist. No. 02CA0007-M, 2003-Ohio-366, 2003 WL 187662, the court stated:

An action must be dismissed as moot unless it appears that a live controversy exists. Lorain Cty. Bd. of Commrs. v. United States Fire Ins. Co. (1992), 81 Ohio App.3d 263, 266-67, 610 N.E.2d 1061. * * * Moreover, no injunctions were issued enjoining operation of the restrictive covenant. As such, the covenant has expired; a covenant not to compete that expires by its own terms moots requests to enforce such an agreement. National Sanitary Supply Co. v. Wright (1994), 644 N.E.2d 903, 906 (stating that the issue of enjoining past employee from competition had become moot once the covenant not to compete had expired); In re Talmage (N.D.Ohio 1988), 94 B.R. 451, 453-54 (finding that a court is not able to specifically enforce a covenant not to compete after it expired by its own terms).

{¶ 23} In addition, other Ohio courts have held likewise. See Ashtabula Cty. Joint Voc. School v. O'Brien , 11th Dist. No. 2004-A-0092, 2006-Ohio-1794, 2006 WL 903597, ¶ 31-38 (holding that declaratory judgment action was moot at the time of the expiration of the contract); and Manchester Edn. Assn. v. Manchester Local School Dist. Bd. of Edn. , 9th Dist. No. 12481, 1986 WL 9126 (Aug. 20, 1986) ("[t]he negotiated agreement in effect at the time of the trial court's decision expired by its own terms on August 31, 1985, thereby rendering this appeal moot. We therefore dismiss the appeal").

{¶ 24} Since the non-compete and non-solicitation covenants are the subject of the parties' assignments of error, and said provisions expired on May 9, 2017, any judgment of this court would not have any impact on a genuine, live controversy. As such, the parties' assignments of error are moot and this matter is dismissed for lack of jurisdiction.

IV. DISPOSITION

{¶ 25} Having determined that all of the assignments of error are rendered moot, we hereby dismiss this appeal for lack of jurisdiction.

Appeal dismissed.

BROWN, P.J. and LUPER SCHUSTER, J., concur.