john best whitworth; elizabeth bravender; and ohio … the supreme court of ohio daily services, llc...
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IN THE SUPREME COURT OF OHIO
DAILY SERVICES, LLC,Case No. 2013-0171
Relator,
V.
STEPHEN BUEHRER,Administrator, Ohio Bureau ofWorkers' Compensation, et al.,
Respondents.
Original Action in Prohibition
MOTION OF RESPONDENTS TO DISMISS RELATOR'S COMPLAINT
MICHAEL DeWINEOhio Attorney General
James A. King (0040270)(COUNSEL OF RECORD)
David S. Bloomfield, Jr. (0068158)L. Bradfield Hughes (0070997)Eric B. Gallon (0071465)
PORTER, WRIGHT, MORRIS & ARTHUR LLP
41 South High Street, Suites 2800-3200
Columbus, Ohio 43215(614) 227-2000 (voice)(614) 227-2100 (fax)[email protected]@[email protected]@porterwright.com
W. Evan Price, II (0056134)(COUNSEL OF RECORD)
James E. Arnold (0037712)Matthew J. Burkhart (0068299)
JAMES E. ARNOLD & ASSOCIATES, LPA115 West Main Street, Fourth FloorColumbus, Ohio 43215(614) 460-1600 (voice)(614) 469-1066 (fax)[email protected]@[email protected]
Counsel for RelatorDaily Services, LLC
Special Counsel to the Ohio Attorney General;Attorneys for Respondents Stephen Buehrer,Administrator; Adjudicating Committee of theOhio Bureau of Workers' Compensation; JillWhitworth; Elizabeth Bravender; andJohn Best
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MOTION OF RESPONDENTS TO DISMISS RELATOR'S COMPLAINT
Under S.Ct.Prac.R. 12.04 and Civ.R. 12(B)(6), Respondents Stephen Buehrer,
Administrator, Ohio Bureau of Workers' Compensation; Adjudicating Committee of the
Ohio Bureau of Workers' Compensation; Jill Whitworth; Elizabeth Bravender; and John
Best respectfully ask this Court to dismiss Relator's Complaint for failure to state a claim
upon which relief can be granted. Even construing all factual allegations in Relator's
Complaint as true, Relator cannot satisfy the elements required to obtain a writ of
prohibition to preclude the Adjudicating Committee from proceeding with the upcoming
March 2013 hearing to administratively determine whether there is successor liability to
Relator for its predecessor's workers' compensation obligations. A Memorandum in
Support follows.
Respectfully submitted,
MICHAEL DeWINE (0009181)Attorney General, State of Ohio
James A. Kin 0040270(COUNSEL OF RECORD)
David S. Bloomfield, Jr. (0068158)L. Bradfield Hughes (0070997)Eric B. Gallon (0071465)PORTER, WRIGHT, MORRIS & ARTHUR LLP
41 South High Street, Suites 2800-3200
Columbus, Ohio 43215-6194
(614) 227-2051 (voice)(614) 227-2100 (fax)[email protected].^[email protected]@porterwright.com
Special Counsel to the Ohio Attorney General;Attorneys forAll Respondents
ii
IN THE SUPREME COURT OF OHIO
DAILY SERVICES, LLC,Case No. 2013-0171
Relator,
V.
STEPHEN BUEHRER,Administrator, Ohio Bureau ofWorkers' Compensation, et al.,
Respondents.
Original Action in Prohibition
MEMORANDUM IN SUPPORT OF RESPONDENTS' MOTION TO DISMISS
MICHAEL DeWINEOhio Attorney General
James A. King (0040270)(COUNSEL OF RECORD)
David S. Bloomfield, Jr. (0068158)L. Bradfield Hughes (0070997)Eric B. Gallon (0071465)
PORTER, WRIGHT, MORRIS & ARTHUR LLP
41 South High Street, Suites 2800-3200
Columbus, Ohio 43215
(614) 227-2000 (voice)(614) 227-2100 (fax)[email protected]@[email protected]@porterwright.com
W. Evan Price, II (0056134)(COUNSEL OF RECORD)
James E. Arnold (0037712)Matthew J. Burkhart (0068299)
JAMES E. ARNOLD & ASSOCIATES, LPA115 West Main Street, Fourth FloorColumbus, Ohio 43215(614) 460-1600 (voice)(614) 469-1066 (fax)[email protected].̂ [email protected]
Counsel for RelatorDaily Services, LLC
Special Counsel to the Ohio Attorney General;Attorneys for Respondents Stephen Buehrer,Administrator; Adjudicating Committee of theOhio Bureau of Workers' Compensation; JillWhitworth; Elizabeth Bravender; andJohn Best
TABLE OF CONTENTS
...TABLE OF AUTHORITIES .................................................................................................................................. iii
1. INTRODUCTION ..............................................................................................................................:....... 1
II. BACKGROUND ......................................................................................................................................... 3
III. THE LEGAL STANDARD APPLICABLE TO A MOTION TO DISMISS ..................................... 6
IV. RELATOR'S COMPLAINT FOR WRIT OF PROHIBITION FAILS TO STATE ACLAIM UPON WHICH RELIEF MAY BE GRANTED. THE ADJUDICATORYCOMMITTEE IS EMPOWERED BY LAW TO DETERMINE DAILY SERVICES'SUCCESSOR LIABILITY TO BWC, AND RELATOR HAS AN ADEQUATEREMEDY AT LAW TO APPEAL ANY SUCH DETERMINATION ............................................... 8
A. Relator Cannot Show That the March 2013 Hearing To AdjudicateSuccessor Liability Is Unauthorized by Law ........................................................................ 8
B. Relator Cannot Show That Respondents "Patently and Unambiguously"Lack Jurisdiction To Proceed With the March 2013 Hearing ToAdjudicate Successor Liability . ...............................................................................................10
C. Two Courts Have Concluded That the Adjudicating Committee NeverMade a Final Determination on the Successor Liability Portion of DailyServices' 2009 Protest, So There Has Been No Finality to ThatAdjudication by Operation of Law .........................................................................................15
D. The Doctrines of Abatement and Jurisdiction Priority Do Not Help DailyServices; On the Contrary, These Doctrines Undermine Daily Services'Entitlement to a Writ of Prohibition .....................................................................................17
E. Because Respondents Do Not "Patently and Unambiguously" LackJurisdiction To Proceed With the March 2013 Hearing, Relator MustShow That It Lacks an Adequate Alternative Remedy - and This It CannotD o . ...................................................................................................................................................... 20
V. CONCLUSION ..........................................................................................................................................22
CERTIFICATE OF SERVICE ..............................................................................................................................23
ii
TABLE OF AUTHORITIES
Cases
2200 Carnegie, L.L.C. v. Cuyahoga County Bd. of Revision, --- Ohio St.3d ---,2012-Ohio-5691, --- N.E.2d---, 2012 Ohio LEXIS 3098 .................................................. 11, 12
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd of Revision, 87 Ohio St.3d 363,2000-Ohio-452, 721 N.E.2d 40 ................................................................................................ 13, 14
Cleveland Elec. Illum. Co. v. Lake Cty. Bd of Revision, 96 Ohio St.3d 165,2002-Ohio-4033, 772 N.E.2d 1160 ................................................................................................14
Dater v. Charles H. Dater Found., 1st Dist. Nos. C-990864, C-000002,2000 Ohio App. LEXIS 5572 .............................................................................................................18
Dworning v. Euclid, 119 Ohio St.3d 83, 2008-0hio-3318 ....................................................................20
Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379,897 N.E.2d 147 ........................................................................................................................................ 6
France v. Celebrezze, 8th Dist. No. 98147, 2012-Ohio-2072 ...............................................................18
Jagow v. Weinstein, 2d Dist. No. 24309, 2011-Ohio-2683 ...................................................................18
MB West Chester, LLC v. Butler County Bd. of Revision, 126 Ohio St.3d 430,2010-Ohio-3781, 934 N.E.2d 928 ..................................................................................................14
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (1988) .......................................... 6
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938)...........19
Noernberg v. Brook Park, 63 Ohio St.2d 26, 406 N.E.2d 1095 (1980) ............................................20
Ohio Bur. of Workers' Comp. v. Daily Services, LLC, Franklin C.P. No. 09JG-11-46435(Feb. 8, 2011) .........................................................................................................................................15
Ohio Bur. of Workers' Comp. v. Daily Services, LLC, Franklin C.P. No. 11 JG-02-7617(Nov. 21, 2011) ......................................................................................................................................15
Pankeyv. Court of Common Pleas, 7th Dist. No. 11 MA 29, 2011-0hio-4258 ...............................18
Schick v. City of Cincinnati, 116 Ohio St. 16, 155 N.E. 555 (1927) ............................................ 11, 12
Singer Sewing Machine Co. v. Puckett, 176 Ohio St. 32, 197 N.E. 353 (1964) ..............................12
iii
State Bur. of Workers' Comp. v. C.W. Fletcher, 4th Dist. No. 96CA32,1997 Ohio App. LEXIS 923 (Mar. 13, 1997) .......................................................................... 5, 16
State Bur. of Workers' Comp. v. Daily Services, LLC, 10th Dist. No. 11AP-1122,2012-Ohio-4242 ...............................................................................................................................5, 16
State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d 169, 1999; Ohio-151,712 N.E.2d 742 ......................................................................................................................................21
State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 116, 2012-Ohio-54, 961 N.E.2d 181 ................ 6
State ex rel. Caskey v. Gano, Slip Opinion No. 2013-Ohio-71 ..............................................................21
State ex reL Cleveland Professional Football, L.L.C. v. Buehrer, 10th Dist. No.11AP-428, 2012-Ohio-6020 ..................................................................................................... 19,21
State ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 151, 2006-Ohio-5344,855 N.E.2d 473 ... ..................................................................................................................................... 6
State ex reL Duke Energy Ohio, Inc. v. Hamilton County Court, 126 Ohio St.3d 41,2010-Ohio-2450, 930 N.E.2d 299 ..................................................................................:................. 7
State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798,874 N.E.2d 516 . .....................................................................................................................................18
State ex rel. Furnas v. Monnin, 120 Ohio St.3d 279, 2008-Ohio-5569, 898 N.E.2d 573............10
State ex rel. Goldberg v. Mahoning Cty. Probate Court, 7th Dist. No. 00 CA 129,2000-Ohio-2666, 2000 Ohio App. LEXIS 5631 (Nov. 14, 2000) ........................................... 7
State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 1998-Ohio-275, 701 N.E.2d 1002 .......................21
State ex rel. Lake Erie Constr. Co. v. Indus. Comm., 62 Ohio St.3d 81,578 N.E.2d 458 (1991) .... ..................................................................................................................... 9
State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 1997-Ohio-139, 683 N.E.2d 1139 ........12
State ex rel. LTVSteel Co. v. Gwin, 64 Ohio St.3d 245, 1992-Ohio-20, 594 N.E.2d 616 .............21
State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224 ................. 6
State ex rel. Merion v. Court of Common Pleas of Tuscarawas County, 137 Ohio St. 273,28 N.E.2d 641 (1940) ............................................................................................................................ 7
State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279, 364 N.E.2d 33 (1977) .......................................17
iv
State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 476 N.E.2d 1060(1985 ) .......................................................................................................................................................17
State ex rel. Ragozine v. Shaker, 96 Ohio St.3d 201, 2002-Ohio-3992, 772 N.E.2d 1192 ........12
State ex rel. RFFG, L.L.C. v. Ohio Bur, of Workers' Comp., 10th Dist. No. 11AP-647,2013-Ohio-241 .............................................................................................................................. 19, 21
State ex rel. Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas,130 Ohio St.3d 220, 2011-Ohio-5452, 957 N.E.2d 24 ............................................................21
State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd of Commrs.,132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224 ............................................................19
State ex rel. Triplett v. Ross, 111 Ohio St.3d 231, 2006-Ohio-4705, 855 N.E.2d 1174 ................ 6
Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) ......................................... 9
Statutes
R.C. 3.08 ..................................................................................................................................................................12
R.C. 4123.291 ...........................................................:................................................................................... passim
R.C. 4123.32 . ........................................................................................................................................................... 8
R.C. 4123.519 ........................................................................................................................................................12
Rules
Civ.R. 12(B)(6) ....................................................................................................................................................... 6
Evid.R. 201(B) ...............................................................................................:......................................................18
Ohio Adm.Code 4123-14-06 ............................................................................................................................. 7
Ohio Adm.Code 4123-17-02 .. ................................................................................................................ passim
S.Ct.Prac.R. 12.04 .................................................................................................................................................22
Treatises
67 Ohio Jurisprudence 3d, Prohibition, Section 174 (2009) .............................................................21
v
I. INTRODUCTION
Relator Daily Services, LLC ("Relator" or "Daily Services") filed this action seeking to
avoid a hearing on whether it is liable for over $3.5 million in unpaid workers'
compensation premiums that a related company, I-Force, LLC ("I-Force"), owes to the Ohio
Bureau of Workers' Compensation ("BWC" or the "Bureau"). Daily Services and I-Force are
Columbus-based businesses providing temporary staffing services to Ohio employers.
They operate out of the same location and are owned by the same person. In March 2009,
I-Force owed roughly $3.5 million in workers' compensation premiums to the BWC. But I-
Force could not pay its premiums, so it shut its doors. The company then transferred at
least some of its employees, customers, and contracts over to Daily Services.
When the Bureau learned of the transfer, it began an investigation. In May 2009, the
Bureau determined that Daily Services was the successor to I-Force and thus was liable for
I-Force's unpaid premiums in accordance with Ohio Adm.Code 4123-17-02(C). After Daily
Services received notice of the BWC's determination, it filed a protest on June 15, 2009,
with the Bureau's Adjudicating Committee. The Adjudicating Committee, in turn, held a
hearing on the protest in October 2009. After the hearing, the Adjudicating Committee
issued an order finding that, pursuant to Ohio Adm.Code 4123-17-02(B), I-Force's
experience should transfer to Daily Services for purposes of setting the latter's workers'
compensation premiums. The Adjudicating Committee noted that Ohio Adm.Code 4123-
17-02(C) generally requires the BWC to transfer a predecessor's obligations to its
successor. The Committee made no explicit determination, though, on the question of
successor liability.
For years, the Bureau interpreted the Adjudicating Committee's October 2009 order
as deciding the issue of successor liability against Daily Services. In two separate actions
before different judges of the Franklin County Court of Common Pleas challenging the
BWC's efforts to collect the unpaid I-Force premiums from Daily Services, however, the
court held that the Adjudicating Committee's October 2009 decision never resolved the
question of successor liability. The issue whether Daily Services is the successor to I-Force
remains pending as a matter of law. The Adjudicating Committee, therefore, set a hearing
for March 5, 2013, to decide the issue. The setting of that hearing is what prompted the
present prohibition action.
For the reasons set forth below, Relator's Complaint has no merit and should be
dismissed. By statute, the Adjudicating Committee is expressly endowed with the power to
decide Daily Services' protest. Indeed, Relator is the one that originally invoked the
jurisdiction of the Adjudicating Committee with its June 15, 2009 protest. It is the
Adjudicating Committee that has jurisdictional priority, not the later courts in which that
issue was raised. Because the question of successor liability remains unresolved, the
Adjudicating Committee retains jurisdiction over Relator's protest to decide that issue.
Instead of protecting Relator from the adjudication of successor liability that it originally
sought from the BWC, this Court should allow that administrative determination to
proceed. Should the Adjudicating Committee conclude that Daily Services is responsible
for I-Force's unpaid premiums, Daily Services has an adequate remedy at law - an appeal to
the Bureau's Administrator pursuant to R.C. 4123.291 and then, if it wishes, an application
for a writ of mandamus.
2
H. BACKGROUND
Relator Daily Services and its predecessor, I-Force, are Ohio limited liability
companies based in Columbus. The companies are owned by the same individual, Ryan
Mason, and are engaged in the same business, providing temporary employment services
to Ohio employers. (See Compl. at ¶¶ 9, 10.) On or about March 23, 2009, I-Force ceased
operations because it could not afford to pay its workers' compensation premiums. (See id.
at ¶13.) Daily Services then began servicing some of I-Force's customers and, in fact,
captured some of I-Force's former business. (Id. at ¶14.) When the BWC became aware of
this, it concluded that Daily Services was I-Force's successor-in-interest and, therefore, was
liable for I-Force's unpaid premiums.
In or around June 2009, the BWC issued an invoice to Daily Services in which the
Bureau stated that Daily Services was I-Force's successor and responsible for I-Force's
unpaid premiums. On or about June 15, 2009, Daily Services protested the determination
to the Bureau's Adjudicating Committee. (See June 15, 2009 Protest Letter, attached as Ex.
1 to Relator's Compl.) On October 15, 2009, a hearing was held before the Adjudicating
Committee to determine, first, whether I-Force's experience should be transferred to Daily
Services under Ohio Adm.Code 4123-17-02(B), and, second, whether Daily Services was a
successor to I-Force and thus was liable for I-Force's obligations under the workers'
compensation laws under Ohio Adm.Code 4123-17-02(C).
In a decision dated October 15, 2009, the BWC's Adjudicating Committee held that I-
Force's experience should be transferred to Daily Services under Ohio Adm.Code 4123-17-
02(B). (See Oct. 15, 2009 Adjudicating Committee's Decision, attached as Ex. 2 to Relator's
Compl.) Although the BWC read the decision as also finding that Relator was liable as I-
3
Force's successor under Ohio Adm.Code 4123-17-02(C),1 two later court decisions
concluded that the October 15, 2009 decision never expressly resolved the issue of
successor liability. Specifically, in two separate cases involving Daily Services and the BWC
- one before Judge Bessey (Case No. 09JG-11-46435) and another before Judge Reece (Case
No. 11JG-02-7617) - the Franklin County Court of Common Pleas held that the Adjudicating
Committee failed to expressly address the question of successor liability in the October 15,
2009 decision. The decisions of Judge Bessey and Judge Reece are attached to the Relator's
Memorandum in Support as Exhibits A and B.2 (See Relator's Mem. in Supp., Ex. A at 6
(Judge Bessey finding that the October 15, 2009 Order of the Adjudicating Committee
"makes no reference to the issue of whether [Daily Services] was a successor to I-Force and
thus liable for I-Force's deficiencies."); Relator's Mem. in Supp., Ex. B at 16-17 (Judge Reece,
acknowledging Judge Bessey's prior finding and giving that finding preclusive effect).)
1 The Adjudicating Committee's Order began with a discussion of Ohio Adm.Code 4123-17-02. The Order stated that, when one "legal entity having an established coverage or havinghad experience in the most recent experience period wholly succeeds one or more legalentities having established coverage or having had experience in the most recentexperience period and at least one of the entities involved has a merit rating experience,the experience of all the involved. entities shall be combined to establish the rate of the
successor. " (Compl., Ex. 1 at p. 1, quoting Ohio Adm.Code 4123-17-02(B)(2).) The Orderdescribed Ohio Adm.Code 4123-17-02(C) as generally "requir[ing] the BWC to transfer thepredecessor's rights and obligations to the successor." (Id.) After summarizing the parties'
positions, the Adjudicating Committee's Order then affirmed the BWC's "experiencecombination." (Id. at p. 2.) Because the Adjudicating Committee's decision that the"experience combination" was proper necessarily depended on a finding that DailyServices was I-Force's successor, the decision necessarily implied that I-Force's rights and
obligations would transfer to Daily Services.
2 Relator mistakenly attached a second duplicate copy of Judge Bessey's decision (ExhibitA) to its Memorandum and marked it as Exhibit B. References to Judge Reese's decision are
made to the second item marked as Exhibit B to Relator's Memorandum in Support of its
Complaint.
4
Because these courts found that the Adjudicating Committee failed to fully address
Daily Services' protest challenging the BWC's, successorship determination, the
administrative process to resolve successor liability has not yet been exhausted. As a
matter of law, therefore, the issue remains pending before the Adjudicating Committee.
State Bur, of Workers'Comp. v. C.W. Fletcher, 4th Dist. No. 96CA32, 1997 Ohio App. LEXIS
923, *12 (Mar. 13, 1997) (holding that the BWC's failure to administratively decide a
petition challenging an assessment "left the matter pending"); see also State Bur. of
Workers'Comp. v. DailyServices, LLC, 10th Dist. No. 11AP-1122, 2012-Ohio-4242, 1¶ 22-23
(recognizing and following the Fourth District's Fletcher opinion). Accordingly, by letter
dated January 15, 2013, the Adjudicating Committee scheduled a hearing for March 5,
2013, to consider, among other issues not relevant to this proceeding, "whether Daily
Services wholly succeeded to the operation of I-Force and is thus liable for I-Force's
obligations under the workers' compensation laws pursuant to [Ohio Adm.Code] 4123-17-
02(C)." (See January 16, 2013 Scheduling Letter, attached as Ex. 3 to Relator's Compl.)3
Shortly thereafter, on January 29, 2013, Relator brought this action for a writ of
prohibition, in an attempt to avoid the March 2013 hearing, and with it any final
administrative determination of successor liability for I-Force's obligations to BWC. For
the following reasons, the Court should dismiss Relator's writ action. Even construing all of
Relator's factual allegations as true, Relator can prove no set of facts entitling it to
extraordinary relief in prohibition.
3 That hearing date has since been changed by agreement of the parties to March 19, 2013.
5
III. THE LEGAL STANDARD APPLICABLE TO A MOTION TO DISMISS
A motion to dismiss under Civ.R. 12(B)(6) should be granted when, "after all factual
allegations of the complaint [a]re presumed true and all reasonable inferences [a]re made
in [Relator's] favor, it appear[s] beyond doubt that [Relator] could prove no set of facts
entitling [Relator] to the requested writ of prohibition." State ex reL Bell v. Pfeiffer, 131
Ohio St.3d 114, 116, 2012-Ohio-54, 961 N.E.2d 181, ¶ 12; State ex rel. CNG Fin. Corp. v.
Nadel, 111 Ohio St.3d 149, 151, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 13.
Even though courts construe factual allegations in a complaint as true for the
purposes of a motion to dismiss, conclusory allegations are not entitled to any such
presumption. See Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 171, 2008-Ohio-
5379, 897 N.E.2d 147, ¶ 14, quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532
N.E.2d 753 (1988) ("unsupported conclusions 'are not taken as admitted by a [Civ.R.
12(B)(6)] motion to dismiss and are not sufficient to withstand such a motion."')). This
Court may only make reasonable inferences in favor of Relator based on the factual
allegations of the complaint. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2, 2007-Ohio-
6754, 881 N.E.2d 224, ¶ 8.
Prohibition is an extraordinary remedy. According to this Court, "[t]he writ of
prohibition is a high prerogative writ, to be used with great caution in the furtherance of
justice and only where there is no other regular, ordinary and adequate remedy." (Internal
citations and quotations omitted.) State ex rel. Triplett v. Ross, 111 Ohio St.3d 231, 244,
2006-Ohio-4705, 855 N.E.2d 1174, ¶ 64 (compiling Supreme Court of Ohio decisions
holding that a writ of prohibition is an extraordinary writ) (Moyer, C.J., dissenting). "The
writ should never issue in a doubtful or borderline case." (Citations omitted.) State ex rel.
6
Merion v. Court of Common Pleas of Tuscarawas County, 137 Ohio St. 273, 28 N.E.2d 641
(1940); see also State ex rel. Goldberg v. Mahoning Cty. Probate Court, 7th Dist. No. 00 CA
129, 2000-Ohio-2666, 2000 Ohio App. LEXIS 5631, *17 (Nov. 14, 2000), affd, 93 Ohio St.3d
160, 2001-Ohio-1297, 753 N.E.2d 192 ("It has long been recognized that the writ ***
should never be issued in a doubtful or borderline case.").
In order to obtain a writ, a relator must show that: (1) the respondent has
exercised, or is about to exercise, judicial or quasi-judicial power; (2) the exercise of that
power is unauthorized by law; and (3) denying the writ would result in injury for which
there is no adequate alternative remedy. State ex rel. Duke Energy Ohio, Inc. v. Hamilton
County Court, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, ¶ 16. Here, Relator
cannot establish these necessary elements.
Although Respondents do not dispute that they are about to exercise quasi-judicial
power by adjudicating Relator's potential successor liability at the March 2013 hearing, the
Adjudicating Committee's exercise of that power is indeed authorized by law. The General
Assembly has delegated broad authority to the Administrator of the BWC to appoint an
Adjudicating Committee to hear employer protests, including protests over "an audit
finding, experience rating, or transfer or combination of risk experience" or "[a] ny decision
relating to any other risk premium matter[.}" R.C. 4123.291(B)(5), (6). The Administrator
has, in turn, delegated such authority to the Adjudicating Committee. Ohio Adm.Code
4123-14-06.
Moreover, because Respondents do not "patently and unambiguously" lack
jurisdiction to proceed with the March 2013 hearing, Relator must satisfy the third element
7
for a writ of prohibition and demonstrate the lack of an adequate alternative remedy. This,
Relator cannot do. Relator has an adequate alternative remedy by way of appeal from any
determination that is to be made at the upcoming March 2013 hearing. Indeed, Relator
makes no effort to demonstrate that it lacks an adequate remedy. (See Compl. at ¶ 31.)
These grounds in support of Respondents' motion to dismiss are discussed in turn below.
IV. RELATOR'S COMPLAINT FOR WRIT OF PROHIBITION FAILS TO STATE A CLAIMUPON WHICH RELIEF MAY BE GRANTED. THE ADJUDICATORY COMMITTEE ISEMPOWERED BY LAW TO DETERMINE DAILY SERVICES' SUCCESSOR LIABILITYTO BWC, AND RELATOR HAS AN ADEQUATE REMEDY AT LAW TO APPEAL ANY
SUCH DETERMINATION.
A. Relator Cannot Show That the March 2013 Hearing To AdjudicateSuccessor Liability Is Unauthorized by Law.
The Revised Code authorizes the BWC to transfer the experience and liabilities of a
predecessor employer under the workers' compensation laws to a succeeding employer.
R.C. 4123.32 provides, in pertinent part:
The administrator of workers' compensation, with the advice and consent ofthe bureau of workers' compensation board of directors, shall adopt ruleswith respect to the collection, maintenance, and disbursements of the stateinsurance fund including all of the following:
***
(C) Such special rules as the administrator considers necessary tosafeguard the fund and that are just in the circumstances, covering the ratesto be applied where one employer takes over the occupation or industry ofanother or where an employer transfers a business in whole or in part orotherwise reorganizes the business, the successor in interest shall assume, inproportion to the extent of the transfer, as determined by the administrator,the employer's account and shall continue the payment of all contributions
due under this chapter.
R.C. 4123.32(C).
8
In accordance with this statutory authorization, the BWC Administrator
promulgated rules on transfers and combinations of businesses. Those rules are found at
Ohio Adm.Code 4123-17-02(B), which provides, in relevant part:
(B) Succeeding employers - experience.
***
(2) Where a legal entity having an established coverage or having hadexperience in the most recent experience period wholly succeeds one ormore legal entities having established coverage or having had experience inthe most recent experience period and at least one of the entities involvedhas a merit rating experience, the experience of all the involved entities shallbe combined to establish the rate of the successor.
Ohio Adm.Code 4123-17-02(B)(2). Further, Ohio Adm.Code 4123-17-02(C) states that,
when one employer succeeds another in the operation of a business, the successor shall
assume the predecessor's obligations under the workers' compensation laws:
(C) Succeeding employers - risk coverage transfer
(1) Whenever one employer succeeds another employer in theoperation of a business in whole or in part, the successor shall notify thebureau of the succession. Where one employer succeeds another in theoperation of a business, the bureau shall transfer the predecessor's rightsand obligations under the workers' compensation laws.
Ohio Adm.Code 4123-17-02(C)(1). As this Court has explained, a "successor in interest" for
workers' compensation purposes "is simply a transferee of a business in whole or in part."
State ex rel. Lake Erie Constr. Co. v. Indus. Comm., 62 Ohio St.3d 81, 82, 578 N.E.2d 458
(1991).
Relator's contention that the March 2013 hearing is unauthorized by law is
meritless. Under R.C. 4123.291, an employer may file a protest with the BWC objecting to
an experience combination or any other decision relating to a risk premium. R.C.
4123.291(A), (B)(5)-(6). Relator filed such a protest on June 15, 2009. (See Compl., Ex. 1.)
9
The BWC may appoint an Adjudicating Committee to hear protests relating to transfer or
combination determinations. R.C. 4123.291(A), (B)(5)-(6). In two separate suits between
Relator and the BWC, the Franklin County Court of Common Pleas held that the
Adjudicating Committee never ruled on the successor liability portion of Relator's petition.
As a matter of law, the issue thus remains pending before the Adjudicating Committee.
B. Relator Cannot Show That Respondents "Patently and Unambiguously"Lack Jurisdiction To Proceed With the March 2013 Hearing ToAdjudicate Successor Liability.
As demonstrated above, the Adjudicating Committee has "basic statutory
jurisdiction" over the action that Relator seeks to prevent by the writ. See State ex rel.
Furnas v. Monnin, 120 Ohio St.3d 279, 2008-Ohio-5569, 898 N.E.2d 573, ¶ 14 (holding that
a final decree of adoption does not patently and unambiguously divest juvenile court of
jurisdiction to determine paternity, because juvenile court had "basic statutory
jurisdiction" over the action). Nonetheless, Relator suggests that the Adjudicating
Committee "patently and unambiguously" lacks jurisdiction to fully decide the question of
successor liability at the upcoming March 2013 hearing because R.C. 4123.291(A) directs
the Adjudicating Committee to hear a protest "within sixty days of the date on which an
employer files the request, protest, or petition." (See Relator's Mem. in Supp. at 5.) Relator
contends that the Adjudicating Committee now patently and unambiguously lacks
jurisdiction to conduct the March 2013 hearing on Daily Services' protest, as the sixty-day
period for a hearing has passed. (See id.; see also Compl. at ¶ 33.) But this argument flies in
the face of nearly a century of consistent decisions from this Court. Put simply, the
statutory language that Relator cites is directory, not mandatory - and certainly not
jurisdictional.
10
This Court settled this issue back in 1927, in the syllabus of Schick v. City of
Cincinnati, 116 Ohio St. 16, 155 N.E. 555 (1927), holding that:
Statutes which relate to the manner or time in which power or jurisdictionvested in a public officer is to be exercised, and not to the limits of the power orjurisdiction itself, may be construed to be directory, unless accompanied bynegative words importing that the act required shall not be done in any othermanner or time than that designated.
(Emphasis added.) Id. at syllabus. In Schick, a municipality improved a street, and the
former General Code provided that the mayor or solicitor "shall, within ten days after the
completion of such improvement," apply to court for appropriation proceedings. After
there was "considerable delay" on the part of the city to commence these proceedings,
property owners who benefitted from the improvements contended that this delay
precluded the city from collecting assessments from them. This Court disagreed, stating
that "the failure to have such inquiry in ten days after completion of the work does not limit
the power or jurisdiction itself." (Emphasis added; internal citations omitted.) Id. at 23. As
this Court explained:
A construction which places the provisions of the statute as merely directorydeprives the plaintiffs * * * of no right, whereas a construction which wouldmake the same mandatory would deprive the city of its right to collect theassessments in question and permit the property owners to enjoy thebenefits of the improvement without cost to themselves and at the expenseof the taxpayers of the municipality. Again, if the language is to be deemedmandatory, the mayor or solicitor might deprive the city of the right tocollect an assessment by simply failing to perform a ministerial duty. Theconstruction that the portion of the statute indicated is directory onlyconforms more nearly to the ends of justice.
Id. at 23-24.
The rule from Schick persists to this day. Just this past December, for example, this
Court issued its opinion in 2200 Carnegie, L.L.C. v. Cuyahoga County Bd of Revision, --- Ohio
11
St.3d ---, 2012-Ohio-5691, --- N.E.2d---, 2012 Ohio LEXIS 3098, which confirmed that this
Court has "typically held that statutory time requirements imposed on administrative
officials or agencies are 'directory' rather than 'mandatory."' Id. at ¶ 26. Schick and 2200
Carnegie are past and present bookends surrounding years of consistent precedent from
this Court - including case law in the workers' compensation context - regarding the
directory and non-jurisdictional nature of statutory time limits set forth in Ohio statutes.4
In the case at bar, Relator's myopic focus on R.C. 4123.291's directive that the
Adjudicating Committee "shall" hear a protest "within sixty days" ignores Schick and its
progeny. If the language of R.C. 4123.291 is construed to be directory only, thereby
allowing the Adjudicating Committee to proceed with the March 2013 hearing, then Relator
is deprived of no right - for it will still have the benefit of a full and fair administrative
adjudication of its own protest, and of any successor liability that it may have for I-Force's
4 See, e.g., Singer Sewing Machine Co. v. Puckett, 176 Ohio St. 32, 197 N.E. 353 (1964) (R.C.4123.519 states that claimants "shall" file their petitions within 30 days after the filing ofan employer's notice of appeal, but this Court construed the statute as directory, notjurisdictional, noting that "[t]he literal meaning of the words 'shall' and 'may,' is not alwayscontrolling in the construction of a statute. Cases in which these words are convertible are
numerous."); State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 1997-Ohio-139, 683N.E.2d 1139 (administrative rule required director of Rehabilitation and Correction to actupon inmate's appeal within thirty days, but this Court noted that "seemingly mandatorytime limitations 'imposed merely with a view to the prompt and orderly conduct ofbusiness, are directory and not mandatory"' and that the administrative rule "is not
tantamount to a jurisdictional requirement because a full consideration of an appeal mighttake more than thirty days.") (internal quotations omitted); State ex reL Ragozine v. Shaker,96 Ohio St.3d 201, 2002-Ohio-3992, 772 N.E.2d 1192 (R.C. 3.08 specified that proceedingsfor removal of public officers "shall be had within thirty days from the date of the filing ofthe complaint" and relators contended that judge patently and unambiguously lackedjurisdiction to proceed on a complaint for removal because he failed to hold a meritshearing within thirty days, but this Court disagreed, holding that the statute did not includeany expression of intent to restrict the jurisdiction of the court for untimeliness).
12
workers' compensation obligations. Yet if the sixty-day hearing requirement is considered
mandatory, and as somehow eliminating the Adjudicating Committee's jurisdiction to
proceed to decide if Relator is the successor to I-Force, then the State (like the municipality
in Schick) would be deprived of its right to collect a significant debt owed to the BWC, at the
expense of every employer that pays its fair share into the workers' compensation system.
Under Schick, that result would hardly conform "to the ends of justice."
Adopting Daily Services' contention that the Adjudicating Committee's failure to
conclude the hearing on successor liability within sixty days somehow deprives it of
jurisdiction to proceed with the March 2013 hearing ignores a long and unbroken line of
Supreme Court precedent. The sixty-day hearing provision in R.C. 4123.291(A) is directory
- not mandatory or jurisdictional - and in no way supports Daily Services' request for an
extraordinary writ that would prevent the Adjudicating Committee from completing its
review of Daily Services' own protest and holding a hearing on successor liability.
In addition to misunderstanding the directory nature of the sixty-day hearing
provision in R.C. 4123.291(A), Relator contends that this statute "does not grant
Respondents 'continuing jurisdiction' over protests that were previously decided and for
which the appeal time has run." (Mem. in Supp. at 5.) According to Relator, "[n]or is there
any statutory authority akin to Rule 60 of the Ohio Rules of Civil Procedure enabling the
Adjudicating Committee to re-open a previous hearing or otherwise correct, amend, or
supplement a previous order that has become final by operation of law." (Id.) Citing
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 2000-
Ohio-452, 721 N.E.2d 40, Relator posits that "[i]n the absence of any express statutory
13
authority, this Court has held that administrative bodies do not possess any 'inherent'
authority to exercise continuing jurisdiction, even to modify void judgments." (Id.)
Again, however, Relator's arguments miss their mark. Relator has erected a
strawman. Here, the Adjudicating Committee is not attempting to correct, amend, or
supplement a previous order that has become final by operation of law - it is simply trying
to fully and finally resolve the protest that Relator itself filed. As two courts have decided,
there has been no previous administrative order on successor liability because the
successor liability issue was never expressly decided in the Adjudicating Committee's
October 2009 order. Nor does this case resemble the Cincinnati School District case cited
by Relator, because in that case no one - including the owner of the property at issue -
showed up at the hearing before the Board of Revision ("BOR") at which the BOR approved
an increase in valuation of the property, as none of the required pre-hearing notices were
sent by the BOR. As such, this Court concluded that the BOR "acquired no jurisdiction" in
the matter in the first instance. Cincinnati School Dist. Bd. of Edn., supra, 87 Ohio St.3d at
366-67. Here, in contrast, there can be no serious contention that the Adjudicating
Committee lacked jurisdiction to hear Relator's own protest at the 2009 protest hearing
attended by Relator.5
5 In any event, this Court later modified its holding in the Cincinnati School Dist. Bd. of Edn.case cited by Relator, lifting the "jurisdictional bar" recognized in that case. See MB West
Chester, LLC v. Butler County Bd. of Revision, 126 Ohio St.3d 430, 2010-Ohio-3781, 934N.E.2d 928, ¶ 25, citing Cleveland Elec. Illum. Co. v. Lake Cty. Bd of Revision, 96 Ohio St.3d165, 2002-Ohio-4033, 772 N.E.2d 1160 (remanding to BTA for administrative appealhearing that was previously dismissed due to county Board of Revision's failure to notifythe Tax Commissioner of its action).
14
C. Two Courts Have Concluded That the Adjudicating Committee NeverMade a Final Determination on the Successor Liability Portion of DailyServices' 2009 Protest, So There Has Been No Finality to ThatAdjudication by Operation of Law.
Relator also claims that the March 5, 2013 hearing of the Adjudicating Committee
should be prohibited because "[t]he October 2009 Decision became final by operation of
law once the period for filing an appeal passed in November 2009 - as specifically
recognized by the [Adjudicating Committee's] February 2011 Decision and [the
Administrator's Designee's] June 2011 Decision." (Compl. at ¶ 37.) Daily Services also
argues that "[t] he issue is currently pending in [Daily Services, LLC v. Ohio Bur. of Workers'
Comp., Case No. 11-CV-12-015913 (Franklin County C.P.)]." (Compl. at ¶ 38.) Neither of
these arguments has any merit.
First, as Relator has consistently asserted and two decisions of the Franklin County
Court of Common Pleas have confirmed, the Adjudicating Committee's October 2009
decision never resolved the issue of successor liability. Although it is true that the BWC
previously interpreted the October 2009 decision as finding Relator to be I-Force's
successor, the Bureau's view was ultimately rejected. As noted, in Ohio Bur. of Workers'
Comp. v. DailyServices, LLC, Franklin C.P. Case No. 09JG-11-46435 (Feb. 8, 2011), Judge
Bessey held that the October 15, 2009 decision "makes no reference to the issue of whether
Defendant was a successor to I-Force and thus liable for I-Force's deficiencies." (Relator's
Mem. in Supp., Ex. A, at p. 9.) And in Ohio Bur. of Workers' Com p. v. Daily Services, LLC,
Franklin C.P. No. 11 JG-02-7617 (Nov. 21, 2011), judge Reece adopted Daily Services'
argument that "Judge Bessey determined that the October 15, 2009 order did not find Daily
Services to be a successor in interest to I-Force * * * and the [BWC administrator's]
15
Designee was bound to follow Judge Bessey's decision." (Relator's Mem. in Supp., Ex. B, at
p. 9 (describing Daily Services' legal argument) and pp. 15-17 (agreeing that the BWC was
collaterally estopped from relitigating whether the October 2009 Decision included a
"successor-in-interest determination").) 6
If the Adjudicating Committee failed to rule on whether Relator is the successor in
interest to I-Force, then its October 2009 decision could not "[become] final by operation of
law." As two district courts of appeals have concluded - including in one case involving
Daily Services - when a matter before the Adjudicating Committee is never decided, the
issue remains pending. Fletcher, 1997 Ohio App. LEXIS 923, at *12 (if "a petition objecting
to [an] assessment was filed but no finding was made resolving the petition," "[t]he BWC's
failure to resolve the petition has left the matter pending.") (emphasis added)). See also
Daily Services, LLC, 2012-Ohio-4242, at ¶¶ 22-23 (recognizing and following Fletcher in an
opinion involving these parties). As the Fletcher court explained, when an employer files
an objection with the BWC but the BWC fails to issue a finding resolving the objection,
"[t]he judgment filed by the BWC is analogous to an order which neither adjudicates all
claims or parties nor has Civ.R. 54(B) 'no just reason for delay' language ***." Fletcher,
1997 Ohio App. LEXIS 923, at *12. Consequently, the October 2009 Decision is not final by
6 Judge Reece's decision was appealed to the Tenth District Court of Appeals. Althoughboth parties briefed the issue whether the Adjudicating Committee had ultimately decidedthe question of successor liability against Daily Services, the court of appeals affirmedwithout addressing the issue. See State Bur. of Workers' Comp. v. Daily Services, LLC, 10th
Dist. No. 11AP-1122, 2012-Ohio-4242, ¶ 29.
16
operation of law, and the BWC has authority to consider the obligation-transfer portion of
Daily Services' 2009 Protest.
D. The Doctrines of Abatement and Jurisdiction Priority Do Not Help DailyServices; On the Contrary, These Doctrines Undermine Daily Services'Entitlement to a Writ of Prohibition.
Daily Services next argues that the BWC's Adjudicating Committee is not authorized
to act pursuant to the doctrines of abatement and jurisdiction priority. (See Relator's Mem.
in Supp. at 7.) These doctrines hold that "[a]s between courts of concurrent jurisdiction,
the tribunal whose power is first invoked by the institution of proper proceedings acquires
jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and
to settle the rights of the parties." State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d
54, 56, 476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279,
364 N.E.2d 33, at syllabus (1977).
This doctrine does not support Daily Services' position; it undermines it. According
to Relator's own Complaint, the BWC's Adjudicating Committee is the tribunal whose
"power was first invoked" by the institution of proper proceedings. Relator filed a protest
with the Adjudicating Committee on June 15, 2009. (See Compl. ¶ 18 and Ex. 1.) The BWC
brought suit in the Franklin County Court of Common Pleas on September 1, 2009. (See id.
¶ 21.) Although the BWC made a claim for successor liability in that lawsuit, that does not
matter for purposes of jurisdictional priority. The jurisdictional priority rule requires the
BWC to "adjudicate upon the whole issue and * * * settle the rights of the parties." That is
precisely what the Adjudicating Committee intends to accomplish at the March 2013
hearing that Relator now seeks an extraordinary writ to prohibit.
17
Nor does the fact that the BWC raised counterclaims for successor liability in an
action currently pending before the Franklin County Court of Common Pleas affect the
Adjudicating Committee's jurisdiction. Those counterclaims were only brought in response
to a suit that Relator filed against the Bureau. They were brought out of an abundance of
caution, in case these claims were deemed to be compulsory counterclaims. And that suit
was filed in December 2011, after Relator first invoked the jurisdiction of the Adjudicating
Committee with its June 15, 2009 protest. Further, the BWC has asked the Court of
Common Pleas to stay consideration of its counterclaims until the BWC has an opportunity
to properly consider the successor liability issues in Relator's June 2009 protest. See Daily
Services, LLC v. Ohio Bur. of Workers' Comp., Franklin C.P. No. 11-CV-12-015913, Motion of
Defendant Ohio Bureau of Workers' Compensation to Stay Its Counterclaims Pending
Exhaustion of Administrative Proceedings (Jan. 16, 2013) (available at
http://fcdcfcj s.co.franklin.oh.us/CaseInformation0nline).7
Thus, contrary to Daily Services' argument (see Relator's Mem. in Supp. at 8), no
"absurdity" will result from allowing the BWC to proceed to consider Daily Services'
7 This Court may take judicial notice of the BWC's filing of a motion for stay in the pendingFranklin County Court of Common Pleas action, under Evid.R. 201(B). See France v.
Celebrezze, 8th Dist. No. 98147, 2012-Ohio-2072, ¶ 6; Pankey v. Court of Common Pleas, 7th
Dist. No. 11 MA 29, 2011-Ohio-4258, ¶ 8; Jagow v. Weinstein, 2d Dist. No. 24309, 2011-
Ohio-2683, ¶ 9, n.1 (summarizing case law in which Ohio appellate courts have "takenjudicial notice of a trial court's docket"); Dater v. Charles H. Dater Found., 1st Dist. Nos. C-
990864, C-000002, 2000 Ohio App. LEXIS 5572, *11 (indicating that a trial court may "take
judicial notice of entries in another court ' s docket"); see also State ex rel. Everhart v.
McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 8(citing the website ofthe Franklin County Clerk of Courts and citing a Kentucky state opinion and an Ohio federalopinion for the proposition that courts may take judicial notice of public court records that
are accessible on the Internet).
18
protest. If the Adjudicating Committee concludes that Relator is liable for I-Force's unpaid
workers' compensation premiums, then Relator can appeal that decision to the BWC's
Administrator or the Administrator's designee. R.C. 4123.291(B). The Administrator or
the designee must hold a hearing. R.C. 4123.291(B)(3). If the Administrator or the
designee upholds the Adjudicating Committee's decision, then Relator may seek a writ of
mandamus ordering the BWC to vacate that final order. See, e.g., State ex rel. RFFG, L.L.C. v.
Ohio Bur. of Workers' Comp., 10th Dist. No. 11AP-647, 2013-Ohio-241; State ex rel. Cleveland
Professional Football, L.L.C, v. Buehrer, 10th Dist. No. 11AP-428, 2012-Ohio-6020.
The doctrine of exhaustion of administrative remedies also requires the
Adjudicating Committee's consideration of the successor liability question to proceed. "It is
a 'long-settled rule of judicial administration that no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed administrative remedy has been
exhausted."' State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd. of Commrs.,
132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 19, quoting Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). "'Exhaustion is
generally required as a matter of preventing premature interference with agency
processes, so that the agency may function efficiently and so that it may have an
opportunity to correct its own errors, to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is adequate for judicial review."'
Id., quoting Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
"Thus, a 'party must exhaust the available avenues of administrative relief through
19
administrative appeal' before seeking separate judicial intervention." Id., quoting
Noernberg v. Brook Park, 63 Ohio St.2d 26, 29, 406 N.E.2d 1095 (1980).
Here, the legislative scheme calls for the Adjudicating Committee to consider and
rule on Relator's liability for I-Force's workers' compensation liabilities. R.C. 4123.291(A).
This is exactly what the BWC seeks to do, and what Relator is attempting to prevent.
Relator may then appeal any decision of the Adjudicating Committee to the BWC's
Administrator or the Administrator's designee. R.C. 4123.291(B). Ohio offers no separate
judicial remedies to an employer seeking to challenge a finding of successor liability
beyond the administrative process described in R.C. 4123.291, which may then be followed
by an action for mandamus as described below. Cf. Dworning v. Euclid, 119 Ohio St.3d 83,
2008-Ohio-3318, ¶ 10 (holding that the exhaustion doctrine does not apply "when there is
a judicial remedy that is intended to be separate from the administrative remedy"). As
such, the doctrine of exhaustion defeats Relator's requested writ. Relator cannot obtain
judicial review of the determination of successor liability in the BWC's June 2009 invoice to
Relator until Relator exhausts the administrative process for challenging such a finding.
E. Because Respondents Do Not "Patently and Unambiguously" LackJurisdiction To Proceed With the March 2013 Hearing, Relator Must
Show That It Lacks an Adequate Alternative Remedy - and This ItCannot Do.
As explained above, the Adjudicating Committee does not "patently and
unambiguously" lack jurisdiction to proceed with the March 2013 hearing on successor
liability. Because there is no "patent and unambiguous" lack of jurisdiction, Daily Services
must meet the third element for a writ of prohibition, that it lacks an adequate remedy.
And this it cannot do, even if all of Daily Services' factual allegations are taken as true for
20
purposes of this Motion, for Daily Services indeed has an adequate remedy by appeal and
by writ of mandamus. See State ex rel. Caskey v. Gano, Slip Opinion No. 2013-Ohio-71, at
¶ 2, citing State ex reL Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130
Ohio St.3d 220, 2011-Ohio-5452, 957 N.E.2d 24, ¶ 10. The availability of an appeal
constitutes an adequate remedy that will prevent issuance of extraordinary relief. State ex
rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 248, 1992-Ohio-20, 594 N.E.2d 616.
As indicated above, if Daily Services "is adversely affected by a decision of [the]
adjudicating committee," then under the express terms of the Revised Code it can appeal
that decision to the BWC's Administrator or the administrator's designee. R.C.
4123.291(B). If Daily Services is not successful before the BWC's Administrator, then Daily
Services may seek a writ of mandamus ordering the BWC to vacate that final order. See,
e.g., State ex rel. RFFG, supra, 2013-Ohio-241; State ex rel. Cleveland Professional Football,
L.L.C., supra, 2012-Ohio-6020. If Daily Services does not prevail in the Tenth District in its
mandamus action, then it would have an appeal in this Court on the merits of the
successor-liability issue. Daily Services may complain that this alternative legal remedy
would be time-consuming or expensive, but "[t]he mere fact that a postjudgment appeal
may be expensive to pursue does not render an appeal inadequate so as to justify
extraordinary relief in * * * prohibition." 67 Ohio Jurisprudence 3d, Prohibition, Section
174 (2009), citing State ex rel. Banc One Corp. v. Walker, 86 Ohio St.3d 169,1999-®hio-151,
712 N.E.2d 742; State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 1998-Ohio-275, 701 N.E.2d
1002. Daily Services' existing, fully adequate legal remedy flatly bars issuance of any
extraordinary writ of prohibition.
21
V. CONCLUSION
For the foregoing reasons, even if this Court accepts Daily Services' factual
allegations as true, Daily Services simply cannot prove its entitlement to an extraordinary
writ of prohibition. Pursuant to Rule 12.04(C) of the Court's Rules of Practice, this Court
should dismiss Daily Services' Complaint, without ordering the submission of additional,
unnecessary briefing and evidence. The March 2013 hearing should be allowed to proceed
as scheduled, so that any successor liability of Daily Services for the workers' compensation
obligations of its predecessor may be administratively determined as the General Assembly
intended.
Respectfully submitted,
MICHAEL DeWINE (0009181)Attorney General, tate of 0'o
James A. Kin ( 04027 )(COUNSEL OF RECORD
David S. Bloomfield, Jr. (0068158)L. Bradfield Hughes (0070997)Eric B. Gallon (0071465)PORTER, WRIGHT, MORRIS & ARTHUR LLP41 South High Street, Suites 2800-3200
Columbus, Ohio 43215-6194
(614) 227-2051 (voice)(614) 227-2100 (fax)[email protected].̂ [email protected]@porterwright.com
Special Counsel to the Ohio Attorney General;Attorneys for A11 Respondents
22
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion to Dismiss and Memorandum in
Support has been served upon the following counsel via U.S. Mail, postage prepaid, this
13th day of February, 2013:
W. Evan Price, II(COUNSEL OF RECORD)
James E. ArnoldMatthew J. BurkhartJAMES E. ARNOLD & ASSOCIATES, LPA115 West Main Street, Fourth FloorColumbus, Ohio 43215
Counsel for RelatorDaily Services, LLC
C^!.56-nsel for e pondents
23