LTV Steel brings this appeal challenging the decision of the lower court that denied its motion to show cause and motion to vacate plaintiffs notice of dismissal. Finding no error in the proceedings of the court below, we affirm.
The matter before us arises from a workers’ compensation appeal wherein the final order of the Industrial Commission allowed appellee/employee Larry Schade’s workers’ compensation claim. The appeal was filed by his employer, LTV Steel, pursuant to R.C. 4123.512 in the Court of Common Pleas of Cuyahoga County. On May 26, 1995, in conformance with the statutory requirements, the notice of the appeal was filed by LTV Steel. On June 23, 1995, appellee Schade filed his complaint. LTV Steel filed its answer to the complaint on July 19, 1995. Discovery was had, and the matter was set for trial to commence on February 7, 1996; however, on January 3, 1996, appellee Schade filed a notice of voluntary dismissal without prejudice pursuant to Civ.R. 41(A). In response, LTV Steel filed a motion to show cause and vacate the plaintiffs notice of dismissal. By journal entry, on January 22, the trial court éntered its final order, indicating that the case, Larry Schade v. LTV Steel Co. et al., was dismissed without prejudice. Subsequent to this final order and by stipulation of the parties and order of the court, appellee Schade filed his brief in opposition to LTV Steel’s motion to show cause and vacate plaintiffs notice of dismissal. On June 10, 1996, the trial court journalized its denial of LTV Steel’s motion to show cause and vacate plaintiffs notice of dismissal. It is from this judgment that LTV Steel now appeals, presenting three assignments of error for our review:
ASSIGNMENT OF ERROR NO. I
“By failing to hold claimant’s notice of voluntary dismissal for naught, the trial court committed reversible error in denying appellant its day in court.”
*859 ASSIGNMENT OF ERROR NO. II '
“By failing to vacate claimant’s notice of voluntary dismissal, the trial court committed reversible error in permitting a workers’ compensation claimant, in an employer’s appeal to court, to unilaterally dismiss the employer’s appeal so as to delay or thwart the rights of an employer who is contesting the findings of the Industrial Commission, defeating the purpose of the appeals process and abusing Civ.R. 41(A).”
ASSIGNMENT OF ERROR NO. Ill
“The trial court committed reversible error in denying the employer its constitutional rights to due process and equal protection in an R.C. 4123.512 appeal to court by allowing a workers’ compensation claimant to unilaterally dismiss the action commenced by the employer.”
The gravamen of the errors complained of here by appellant LTV Steel is that it is error for the common pleas court to allow a workers’ compensation claimant, pursuant to Civ.R. 41(A), to voluntarily dismiss an employer’s appeal brought pursuant to R.C. 4123.512, challenging the allowance of a claim.
Appellant’s reasoning relies upon the dissent of Justice Lundberg Stratton in
Keller v. LTV Steel Co.
(1996),
Appellant further relies on the analysis in
Rhynehardt v. Sears Logistics Serv.
(1995)
“In an appeal pursuant to R.C. 4123.519 (now R.C. 4123.512) from the Industrial Commission to a court of common pleas brought by an employer, is the claimant entitled to dismiss [his or] her complaint pursuant to Civ.R. 41(A)(1)(a)?”
The appeal, however, was never brought before the Supreme Court.
In addition, we note that the Second Appellate District, in
Anderson v. Sonoco Products Co.
(1996),
Although it is clear that a conflict among the districts exists on the exact issue before our court today, the Supreme Court of Ohio has not yet addressed this very narrow issue.
Our court has previously considered the arguments advanced by the appellant today, and we have rejected them. Appellant contends that we need not follow Ross, as it is distinguishable from the matter sub judice. In Ross, the appeal was brought by the employer. The employee/claimant filed a notice of dismissal. The trial court failed to accept the employee/claimant’s notice of dismissal and forced the claimant to proceed to trial without his expert witness, which resulted in a directed verdict in favor of the employer. On appeal, our court reversed, reasoning that Civ.R. 41(A)(1)(a) expressly provides for a unilateral dismissal by a “plaintiff.” Therefore, when an employer files a notice of appeal pursuant to R.C. 4123.519, the claimant is required to file a complaint showing his cause of action to participate or to continue to participate in the fund. The claimant is listed in the caption of that action as the “plaintiff.” Accordingly, the claimant had a right to dismiss his complaint once, pursuant to Civ.R. 41(A)(1)(a). Ross, supra, at fn. We note that despite LTV Steel’s contention that this decision is distinguishable from the matter at hand due to claimant Ross’s desperate situation, nowhere in its opinion did the Ross court indicate that its reasoning was based upon the desperate situation or extenuating circumstances of the case.
Further, in 1994, this court again addressed the issue of whether a claimant could dismiss an employer’s appeal pursuant to Civ.R. 41(A)(1)(a). In
Rogers v. Ford Motor Co.
(Aug. 18, 1994), Cuyahoga App. No. 66118, unreported,
Finally, in 1996, our court again addressed this exact issue in
Moore v. Trimble
(Aug. 15, 1996), Cuyahoga App. No. 67895, unreported,
Accordingly, it is the position of our court that in this district the Rules of Civil Procedure apply to these workers’ compensation appeals. We recognize that pursuant to the Civil Rules, a plaintiff has the right to voluntarily dismiss his or her case once without prejudice, invoking the saving statute. A voluntary dismissal is accomplished by the filing of a dismissal notice with the court. Once such notice is filed, the court is divested of jurisdiction.
We, therefore, hold, once again, that the trial court may not vacate the claimant/plaintiffs. notice of voluntary dismissal brought pursuant to Civ.R. 41(A)(1)(a), even where the appeal is brought to the lower court by the employer.
Accordingly, the appellant’s assignments of error are not well taken, and the determination of the trial court that denied the appellant’s motion to vacate appellee’s notice of voluntary dismissal was proper.
Judgment affirmed.