Ford Motor Co. v. Hamilton

457 N.E.2d 937, 9 Ohio App. 3d 17, 9 Ohio B. 18, 1983 Ohio App. LEXIS 10990

• Court: Ohio Court of Appeals
• Decided: March 3, 1983
• Docket: 45160
• Status: Published

Opinion

Pryatel, J.

Plaintiff, Ford Motor Company, filed a timely notice of appeal in the Cuyahoga County Court of Common Pleas from an adverse ruling of the Cleveland Regional Board of Review for Workers’ Compensation pursuant to R.C. 4123.519.

No further action was taken by plaintiff or the claimant-defendant, Jerry Hamilton. On March 2, 1982, the court dismissed plaintiffs appeal apparently for want of prosecution pursuant to Civ. R. 41(B)(1). 1 Plaintiff now appeals that dismissal citing two assignments of error. For reasons of clarity, we will treat the second assigned error first.

Assignment of Error No. II

“II. The trial court erred in dismissing plaintiff-appellant’s notice of appeal for want of prosecution because plaintiff-appellant did all it was required to do under the workers’ compensation statute.”

Under R.C. 4123.519 governing appeals of workers’ compensation cases to the court of common pleas, appellant’s only required act was the filing of the notice of appeal. After this act, vesting jurisdiction in the court, it becomes the affirmative duty of the claimant, irrespective of his success or failure at the administrative level, to then proceed. R.C. 4123.519. See, also, Zuljevic v. Midland-Ross Corp. (1980), 62 Ohio St. 2d 116 [16 O.O.3d 140]. Within thirty days of the filing of the notice of appeal, claimant is required to file a petition containing a statement of facts showing a cause of action to participate or to continue participating in the fund. R.C. 4123.519.

The claimant-appellee failed to take this step in the case at bar. Thus, the plaintiff (appellant) did all that was required of it while the claimant (appellee) failed to proceed according to statute. Nevertheless, the court dismissed the case for plaintiff’s want of prosecution under Civ. R. 41(B)(1). In short, the claimant who “failed to prosecute his action” was rewarded at the expense of the plaintiff that fulfilled its legal responsibility. Since there was no additional duty for plaintiff to perform after perfecting the appeal, we conclude that its appeal was erroneously dismissed.

Accordingly, appellant's second assignment of error is sustained.

Assignment of Error No. I

“I. The trial court erred in dismissing plaintiff-appellant’s notice of appeal for want of prosecution without giving prior notice of such action.”

The record shows that notice was sent to the proper parties when the appeal was perfected, but it is silent as to the notice of dismissal. Nowhere in the file is there any evidence that plaintiff was sent prior notice of the common pleas court’s dismissal of its appeal as required by Civ. R. 41(B)(1). In light of this state of the record, the remaining assignment of error is sustained.

Judgment is reversed, the appeal is reinstated and the case is remanded.

Judgment reversed and case remanded.

Jackson, P.J., and Nahra, J., concur.

1 Civ. R. 41(B)(1) reads in pertinent part:

“Where the plaintiff fails to prosecute * * * the court * * * on its own motion may, after notice to the plaintiffs counsel, dismiss an action or claim.”