[Cite as Harmon v. Cuyahoga Cty., 2017-Ohio-8662.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105574
LINDA HARMON PLAINTIFF-APPELLEE
vs.
CUYAHOGA COUNTY, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-838317
BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: November 22, 2017 ATTORNEYS FOR APPELLANTS
Michael C. O’Malley Cuyahoga County Prosecutor BY: Dale F. Pelsozy Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
Also Listed
For Bureau of Workers’ Compensation
Mike DeWine Ohio Attorney General Thomas M. McCarty Assistant Attorney General State Office Building, 11th Floor 615 West Superior Avenue Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mitchell A. Stern Mitchell A. Stern, L.P.A. 27730 Euclid Avenue Cleveland, Ohio 44132
Brian M. Taubman Bruce D. Taubman Taubman Law 1826 West 25th Street Cleveland, Ohio 44113
Barry A. Trattner Trattner & Associates 1826 West 25th Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Cuyahoga County (“appellant”), appeals from an order
of the Cuyahoga County Court of Common Pleas awarding plaintiff-appellee, Linda
Harmon (“Harmon”), $3,800 in attorney fees pursuant to R.C. 4123.512(F). Appellant
argues that Harmon was not entitled to an award of statutory attorney fees because she
was already participating in the workers’ compensation fund, and thus, her counsel did
not secure her right to participate in the fund. After a thorough review of the record and
law, this court affirms.
I. Factual and Procedural History
{¶2} Harmon was employed by appellant as a State Tested Nurses Aide (“STNA”).
On July 6, 2012, Harmon sustained a lower-back injury in the course of her employment.
{¶3} On July 10, 2012, Harmon filed a workers’ compensation claim for her
injuries. Harmon’s claim was originally allowed for substantial aggravation of disc
displacement and major depressive disorder, single episode, moderate. Harmon
subsequently requested an additional allowance for a low back sprain.1 On July 26,
2012, Harmon’s claim was granted in an administrative order for “sprain lumbar region.”
Our record does not contain Harmon’s C-86 motion. A C-86 motion is an administrative 1
motion in which a claimant can request that his or her workers’ compensation claim be allowed for an additional condition. See Kenyon v. Scott Fetxer Co., 113 Ohio App.3d 264, 266, 680 N.E.2d 1034 (8th Dist.1996). {¶4} Appellant contested the additional allowance for a back sprain. On August
8, 2012, appellant filed an appeal challenging the administrator’s ruling. A hearing was
held before a district hearing officer on October 29, 2012. On October 30, 2012, the
district hearing officer denied appellant’s appeal and modified the order of the Bureau of
Workers’ Compensation (“BWC”). The officer concluded,
[Harmon] was injured in the course of and arising out of employment when she was lifting laundry bags full of dirty clothes and hurt her low back.
The claim is ALLOWED for SPRAIN LUMBAR SPINE.
The District Hearing Officer awards temporary total disability compensation from 07/07/2012 through the present and to continue upon submission of medical evidence.
{¶5} On November 15, 2012, appellant filed an appeal challenging the district
hearing officer’s ruling. A hearing was held on December 11, 2012, before a staff
hearing officer. The staff hearing officer affirmed the district hearing officer’s ruling.
{¶6} Appellant filed an appeal on December 21, 2012, challenging the staff
hearing officer’s ruling. On January 2, 2013, appellant’s appeal was refused.
{¶7} In Cuyahoga C.P. No. CV-13-800584, appellant filed an appeal in the
Cuyahoga County Court of Common Pleas on January 31, 2013. Harmon filed a
complaint on May 28, 2013.2 However, on January 6, 2014, Harmon filed a notice of
voluntarily dismissal pursuant to Civ.R. 41(A). The trial court dismissed the case
without prejudice on January 9, 2014.
Harmon’s complaint is not in the record before this court. 2 {¶8} On January 2, 2015, in Cuyahoga C.P. No. CV-15-838317, Harmon filed a
“complaint and recommencement of Case Number CV[-]13-800584” against appellant
and the BWC. Harmon alleged that the Industrial Commission’s January 2, 2013 order
was “a final order granting her the right to participate in the benefits provided by the
Workers’ Compensation Act.” The BWC filed its answer on February 6, 2015;
appellant filed its answer on February 12, 2015.
{¶9} In December 2015, the parties purportedly agreed to settle Harmon’s
workers’ compensation claim for $32,500. On December 7, 2015, the trial court issued
a journal entry that provided, in relevant part, “per notification of counsel this case is
settled and dismissed.”
{¶10} On June 10, 2016, Harmon, after retaining new counsel, filed a motion to set
aside the settlement. On June 27, 2016, appellant filed a motion to vacate the trial
court’s judgment dismissing the case and to enforce the settlement. On December 6,
2016, the trial court issued the following journal entry: “Case called for hearing. By
agreement of the parties [Harmon’s] motion to set aside settlement filed on 6/10/16 is
granted. [Appellant] dismisses this case with prejudice.”
{¶11} On December 7, 2016, Harmon filed a motion for attorney fees pursuant to
R.C. 4123.512. The trial court held a hearing on Harmon’s motion on February 13,
2017. On February 17, 2017, the trial court granted Harmon’s motion and awarded her
attorney fees in the amount of $3,800. {¶12} On March 16, 2017, appellant filed the instant appeal challenging the trial
court’s judgment. Appellant assigns two errors for review:
I. The court incorrectly awarded attorney fees when the case was dismissed voluntarily by agreement of the parties in settlement.
II. The court abused its discretion in awarding attorney fees.
II. Law and Analysis
A. Propriety of Attorney Fees Award
{¶13} In its first assignment of error, appellant argues that Harmon was not
entitled to an award of statutory attorney fees under R.C. 4123.512(F).
{¶14} R.C. 4123.512(F) governs the awarding of statutory attorney fees in
workers’ compensation cases that are appealed to the common pleas court. R.C.
4123.512(F) provides:
The cost of any legal proceedings authorized by this section, including an attorney’s fees to the claimant’s attorney to be fixed by the trial judge, based upon the effort expended, in the event the claimant’s right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer contested the right of the claimant to participate in the fund. The attorney’s fees shall not exceed five thousand dollars.
{¶15} This court reviews a trial court’s award of attorney fees under R.C.
4123.512(F) for an abuse of discretion. Smith v. Franciscan Communities Inc., 8th Dist.
Cuyahoga No. 101451, 2014-Ohio-5291, ¶ 6, citing Hairston v. Baltimore Ravens, Inc.,
8th Dist. Cuyahoga No. 91339, 2008-Ohio-5341, ¶ 19. An abuse of discretion implies that a trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶16} Initially, we note that the record reflects that the attorney who filed the
motion for attorney fees on Harmon’s behalf was not her original attorney. Harmon’s
attorney acknowledged that he was not her original attorney during the trial court’s
hearing on the motion for attorney fees. Harmon’s attorney explained that he first met
with Harmon on April 29, 2016.
{¶17} As noted above, Harmon’s workers’ compensation claim had originally been
allowed for substantial aggravation of disc displacement and major depressive disorder,
and her claim was additionally allowed for a low back sprain. These allowances were
granted before Harmon retained her current attorney. Furthermore, CV-15-838317 was
purportedly settled and dismissed on December 7, 2015, before Harmon met with her
current attorney.
{¶18} Harmon’s attorney did not file a notice of appearance. However,
Harmon’s motion to set aside settlement, filed on June 10, 2016, provides that it was filed
“by and through newly obtained counsel[.]”
{¶19} In the instant matter, appellant argues that Harmon was not entitled to an
award of statutory attorney fees under R.C. 4123.512(F) because she was already
participating in the workers’ compensation fund, and thus, her attorney did not secure her
right to participate in the fund. Appellant’s argument is misplaced. {¶20} The clear and unambiguous language of R.C. 4123.512(F) states that a
claimant’s attorney fees shall be taxed against the employer “in the event the claimant’s
right to participate or to continue to participate in the fund is established upon the final
determination of an appeal[.]” (Emphasis added.) The fact that Harmon was already
participating in the workers’ compensation fund does not preclude her from recovering
attorney fees — she is entitled to recover attorney fees from appellant if her right to
continue to participate in the fund was established upon the final determination of the
appeal in the trial court.
{¶21} After retaining new counsel, Harmon filed a motion to set aside the
settlement agreement. Therein, Harmon asserted, “she is not now, nor was she ever
interested in settlement of this claim. [Harmon] was and is currently seeking treatment for
her allowed psychological condition and wishes to continue to do so.” If Harmon was
ultimately successful in setting aside the settlement agreement, she would have the right
to continue participating in the workers’ compensation fund.
{¶22} Appellant actively contested Harmon’s motion to set aside the settlement
agreement. Appellant filed a motion to vacate the judgment dismissing the case and
enforce the settlement agreement.
{¶23} In its motion to vacate judgment and enforce settlement, appellant asserted
that more than six months had passed since the parties reached a settlement during which
“[Harmon] continues to receive [workers’ compensation] benefits.” Furthermore,
appellant asserted that after the parties reached a settlement, “[i]t is only now that [Harmon] has [had] a change of heart after dragging the administrative proceedings out
and continuing to improperly collect benefits.” If appellant was ultimately successful in
enforcing the settlement agreement, Harmon would no longer have a right to continue
participating in the workers’ compensation fund and receiving benefits. Rather, she
would receive the $32,500 settlement and nothing more.
{¶24} Harmon filed a reply brief in opposition to appellant’s motion to vacate
judgment and enforce settlement. Therein, Harmon asserted that her workers’
compensation claim had been allowed for lumbar disc displacement and major depressive
disorder, single episode, moderate. Furthermore, Harmon asserted that she did not want
to settle the matter because a settlement would resolve her entire claim, including her
claim for a back sprain that was before the trial court. Harmon filed an affidavit in
support of her brief in opposition to appellant’s motion in which she averred that she did
not want to settle her workers’ compensation claim because “she needed treatments for
her depression” and “wanted to attempt to get back on temporary total disability.”
{¶25} On December 6, 2016, the trial court issued a journal entry that provided, in
relevant part, “case called for hearing. By agreement of the parties [Harmon’s] motion
to set aside settlement filed on 6/10/16 is granted. [Appellant] dismisses this case with
prejudice. Costs to [appellant].”
{¶26} After reviewing the record, we cannot say that the trial court abused its
discretion in determining that Harmon was entitled to an award of attorney fees pursuant
to R.C. 4123.512(F). Although Harmon’s right to participate in the workers’ compensation fund had already been established, the record reflects that appellant
actively contested Harmon’s right to continue participating in the workers’ compensation
fund.
{¶27} Harmon’s 2015 civil action is a “legal proceeding” authorized under R.C.
4123.512. Appellant contested Harmon’s right to continue participating in the workers’
compensation fund by filing its motion to vacate judgment and enforce the settlement.
The record reflects that Harmon succeeded on her motion to set aside the settlement
agreement.
{¶28} Harmon’s right to continue participating in the workers’ compensation fund
was ultimately established on the final determination of the trial court proceedings. The
effect of the parties’ agreement and appellant’s dismissal was that Harmon was ensured
that she would continue to participate in the workers’ compensation fund rather than
receiving the $32,500 settlement.
{¶29} Appellant argues that the only issues before the trial court when Harmon
retained new counsel were Harmon’s motion to set aside the settlement and appellant’s
motion to vacate the judgment of dismissal and enforce the settlement. Appellant
contends that the issue of Harmon’s right to participate in the workers’ compensation
fund was not before the trial court. This argument is unsupported by the record.
{¶30} As noted above, the competing motions undoubtedly had implications on
Harmon’s right to continue participating in the workers’ compensation fund. If Harmon
succeeded in setting aside the settlement agreement, she would have the right to continue participating in the workers’ compensation fund. On the other hand, if appellant
succeeded in enforcing the settlement agreement, Harmon would be entitled to receive the
$32,500 settlement.
{¶31} Appellant appears to argue that Harmon was not entitled to recover attorney
fees under R.C. 4123.512(F) because she filed her motion to set aside the settlement first,
and thus, was not forced to defend against an appeal or filing initiated by appellant. This
court rejected a similar argument in Cakic v. Ridge Pleasant Valley, Inc., 8th Dist.
Cuyahoga No. 102278, 2015-Ohio-2523.
{¶32} In Cakic, the defendant-appellant employer argued that the employee was
not entitled to recover attorney fees pursuant to R.C. 4123.512(F) because the employee
filed an appeal seeking to overturn the Industrial Commission of Ohio’s ruling, and thus,
was not forced to defend against an appeal filed by the employer. This court explained
that R.C. 4123.512(F) “does not limit a prevailing claimant’s right to recover statutory
attorney fees to cases in which a claimant is ‘forced to defend’ an appeal to the common
pleas court filed by his or her employer or the [Industrial Commission].” Id. at ¶ 12.
This court emphasized that “under the plain language of R.C. 4123.512(F), a claimant has
a right to recover attorney fees in ‘any legal proceedings’ authorized by the statute in
which ‘the claimant’s right to participate or to continue to participate in the fund is
established upon the final determination of an appeal.’” (Emphasis sic.) Id. {¶33} Accordingly, Harmon is not precluded from recovering attorney fees under
R.C. 4123.512(F) merely because she filed her motion to set aside the settlement before
appellant filed the motion to vacate judgment and enforce settlement.
{¶34} Finally, appellant argues that the trial court did not address the issue of
Harmon’s right to participate in the workers’ compensation fund because the court did not
rule on Harmon’s motion to set aside the settlement and appellant’s motion to vacate
judgment and enforce the settlement. This argument is unsupported by the record.
{¶35} The trial court’s December 6, 2016 journal entry provides, in relevant part,
“case called for hearing. By agreement of the parties [Harmon’s] motion to set aside
settlement filed on 6/10/16 is granted. [Appellant] dismisses this case with prejudice.
Costs to [appellant].” Furthermore, this judgment ultimately established that Harmon
had the right to continue participating in the workers’ compensation fund, rather than her
entire workers’ compensation claim being settled for $32,500.
{¶36} Based on the foregoing analysis, appellant’s first assignment of error is
overruled.
B. Amount of Attorney Fees Awarded
{¶37} In its second assignment of error, appellant challenges the amount of
attorney fees awarded to Harmon. Appellant argues that the trial court abused its
discretion by awarding attorney fees to Harmon in the amount of $3,800.
Under R.C. 4123.512(F), attorney fees are to “be fixed by the trial judge, based upon the effort expended,” i.e., the effort spent by the claimant’s attorney in litigating the appeal, and cannot exceed $4,200. Holmes [v. Crawford Machine, Inc., 134 Ohio St.3d 303, 2012-Ohio-5380, 982 N.E.2d 643, ¶ 12]. When determining the amount of attorney fees to award a prevailing claimant under R.C. 4123.512(F), the trial court must, therefore, consider “the effort expended” and “set the * * * award accordingly.” Id. The fees awarded must “‘bear[] a direct relation to a claimant’s appeal that lawyers traditionally charge to clients,’” Id. at ¶ 13, quoting Kilgore [v. Chrysler Corp., 92 Ohio St.3d 184, 187, 749 N.E.2d 267 (2001)] (reimbursement of costs, including attorney fees, under R.C. 4123.512(F), “is subject to the trial court’s determination of their reasonable necessity to the presentation of the claimant’s appeal”), and the amount must be “reasonable.” Holmes at ¶ 13, citing Schuller [v. United States Steel Corp., 103 Ohio St.3d 157, 2004-Ohio-4753, 814 N.E.2d 857, syllabus]. The trial court’s attorney fees award must also be supported by the record. Smith, [8th Dist. Cuyahoga No. 101451, 2014-Ohio-5291, at ¶ 8], citing Rubenbauer v. C.W. Zumbiel Co., 1st Dist. Hamilton No. C-120486, 2013-Ohio-929, ¶ 11.
Cakic, 8th Dist. Cuyahoga No. 102278, 2015-Ohio-2523, at ¶ 16.
{¶38} In Harmon’s motion for attorney fees, she requested the statutory maximum
of $4,200 in attorney fees.3 In support of Harmon’s motion for attorney fees, Harmon’s
counsel filed a “time schedule” detailing the time he spent on the case. This document
set forth specific dates on which counsel spent time on the case, brief descriptions of the
time spent, and the specific amount of time spent on the various dates. The document
reflects that Harmon’s counsel spent a total of 19 hours on the case.
{¶39} Appellant argues that the trial court’s award of attorney fees is not supported
by the record. Appellant further contends that Harmon’s attorney’s testimony regarding
the time he spent on the case was neither credible nor a credible basis upon which to
award attorney fees to Harmon.
In 2017, House Bill 27 amended the statutory maximum award of attorney fees from $4,200 3
to $5,000. {¶40} In support of its challenge to the credibility of Harmon’s counsel’s
testimony, appellant emphasizes that counsel (1) did not contemporaneously keep track of
the time he spent on the case nor use a program to keep track of his time; (2)
“reconstructed the time [he spent on the case] from memory”; (3) submitted a
three-sentence brief in support of Harmon’s motion to set aside the settlement, without
citation to or analysis of case law or applicable statutes, and claimed that he spent two
hours on the brief; and (4) recorded time spent on hearings that were postponed or
cancelled.
{¶41} The trial court held a hearing on Harmon’s motion. During this hearing,
Harmon’s counsel testified about the time he spent on the case. Although Harmon
requested $4,200 in attorney fees in her motion, Harmon’s counsel amended the request
to $3,800 during the hearing.
{¶42} Counsel testified that he first met with Harmon on April 29, 2016. During
this meeting, Harmon indicated that she was upset because she did not have any money
coming in and that she did not want to go through with a settlement that had been reached
between her prior attorneys, appellant, and the BWC. Counsel stated that he met with
Harmon for a second time on May 11, 2016. During this meeting, they decided to file a
motion to set aside the settlement. Counsel testified that he reviewed the procedural
history of Harmon’s workers’ compensation claim. Counsel filed the motion to set aside
the settlement on Harmon’s behalf on June 10, 2016. {¶43} Harmon’s counsel testified that he reported to the common pleas court on
June 22, 2016, for the hearing that had been scheduled on Harmon’s motion to set aside
the settlement. Counsel explained that the hearing was rescheduled after he waited for
two hours. Counsel testified about the time he spent preparing for and attending several
other hearings that were rescheduled.
{¶44} On cross-examination, the prosecutor disputed whether Harmon’s counsel
spent one hour on the September 26, 2016 hearing. The prosecutor recalled that the
parties were notified of the continuance by phone and that the parties did not appear in
court. Harmon’s counsel asserted that he prepared for the hearing before he received a
phone call about the continuance. Furthermore, he explained, “[e]very time we had to
reschedule for a hearing, I had to meet with [Harmon] to prepare. I wanted to make sure
she was current and remembered everything.” (Tr. 9.)
{¶45} Counsel asserted that he spent approximately one hour reviewing appellant’s
motion to vacate the judgment of dismissal and enforce the settlement. He spent another
two hours preparing, reviewing, and filing a brief in opposition to appellant’s motion.
Counsel testified that he spent approximately one hour preparing, reviewing, and filing an
affidavit from Harmon. He prepared and filed two subpoenas for Harmon’s previous
attorneys.
{¶46} Counsel testified that he met with Harmon on September 6 and December 3
to prepare for upcoming hearings. Counsel explained that he spent four and one-half
hours on the trial court’s hearing on the motion to set aside settlement because “[s]omebody came in about three and a half hours late, so I sat here for four and a half
hours.” (Tr. 9.)
{¶47} Counsel testified that he spent a total of 19 hours on the case. (Tr. 9.) He
explained that this was a “conservative” calculation of the time he expended.
{¶48} The prosecutor cross-examined Harmon’s attorney about the time he spent
on the case. On cross-examination, counsel acknowledged that he does not have a
program to keep track of the time that he spends on a case. Counsel explained that he
does most of his work on a contingency fee basis. Counsel confirmed that he did not
have any records of the time he spent on the case, and that the time he reported was based
on his memory.
{¶49} When the prosecutor disputed whether Harmon’s counsel spent two hours
on the motion to set aside the settlement, Harmon’s counsel explained, “[t]hat’s what I
said, you know, it took [two hours], and in connection with looking through the Workers’
Compensation file, seeing who [Harmon] was treated for psychologically, that’s very
close, yes.” (Tr. 12.)
{¶50} After hearing the parties’ closing arguments, the trial court took the matter
under advisement. On February 17, 2017, the trial court issued its judgment entry
granting Harmon’s motion and awarding her $3,800 in attorney fees.
{¶51} After reviewing the record, we cannot say that the trial court abused its
discretion in awarding attorney fees to Harmon. Initially, we note that the trial court was in the best position to assess the credibility of the witnesses, including Harmon’s attorney,
that addressed the court during the hearing on Harmon’s motion for attorney fees.
The credibility of a witness is primarily for the trier of fact to assess. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to make credibility determinations because it is able to view the demeanor of a witness while he or she is testifying; this court cannot. The trier of fact is therefore in the best position to determine if the proffered testimony is credible. State v. Holloway, 8th Dist. Cuyahoga No. 101289, 2015-Ohio-1015, ¶ 42, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26.
Khatib v. Peters, 2017-Ohio-95, 77 N.E.3d 461, ¶ 28 (8th Dist.); see State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24 (the trier of fact is best able “to
view the witnesses and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.”).
{¶52} In the instant matter, the trial court, unlike this court, observed Harmon’s
counsel in person and was able to view his demeanor while he testified. In awarding
attorney fees to Harmon, the trial court evidently determined that Harmon’s counsel and
his testimony were, in fact, credible. We defer to the trial court’s credibility
determination.
{¶53} Additionally, upon review, we find that the trial court’s award of attorney
fees is supported by competent evidence in the record. In Cakic, this court held that the
trial court abused its discretion in awarding the claimant $4,200 in attorney fees because
there was no evidence in the record supporting the amount of attorney fees awarded.
Cakic, 8th Dist. Cuyahoga No. 102278, 2015-Ohio-2523, at ¶ 22. This court explained that the claimant “submitted no affidavit from counsel, no time sheets or billing records
detailing the time spent by counsel or counsel’s hourly rate or any other information or
documentation supporting her request for attorney fees.” Id. at ¶ 21.
{¶54} In Rubenbauer, 1st Dist. Hamilton No. C-120486, 2013-Ohio-929, the
appellate court reversed the trial court’s judgment awarding attorney fees to the claimant
pursuant to R.C. 4123.512(F). Id. at ¶ 11. The First District explained that the
claimant’s counsel “failed to submit a timesheet and accompanying affidavit detailing the
hours expended on the case and counsel’s hourly rate. And there is no other competent
evidence in the record to support the trial court’s award.” Id.
{¶55} In the instant matter, unlike Cakic and Rubenbauer, the trial court’s award
of attorney fees is supported by competent evidence in the record. As noted above,
Harmon’s counsel submitted a “time schedule” along with Harmon’s motion for attorney
fees in which counsel detailed the time he spent on the case. Counsel testified in detail
about the time he spent on the case during the trial court’s hearing. Furthermore, at the
outset of the hearing, the trial court acknowledged that the parties stipulated that
counsel’s fee of $200 per hour was reasonable. (Tr. 4.)
{¶56} Finally, appellant appears to argue that the trial court was without
jurisdiction to award attorney fees to Harmon because the case had been settled and
dismissed. This argument is misplaced.
{¶57} The clear and unambiguous language of R.C. 4123.512(F) provides that a
claimant is entitled to recover attorney fees in the event that the claimant’s right to participate or to continue to participate in the workers’ compensation fund “is established
upon the final determination of an appeal.” (Emphasis added.) Thus, the final
determination of an appeal — such as appellant’s dismissal of the case with prejudice —
does not divest the trial court of jurisdiction to award statutory attorney fees. In fact, this
court has held that a claimant is entitled to recover the statutory attorney fees even when a
trial court dismisses an employer’s appeal for lack of subject matter jurisdiction. See
Hairston, 8th Dist. Cuyahoga No. 91339, 2008-Ohio-5341.
{¶58} Based on the foregoing analysis, appellant’s second assignment of error is
III. Conclusion
{¶59} After thoroughly reviewing the record, we cannot say that the trial court
abused its discretion in awarding attorney fees to Harmon pursuant to R.C. 4123.512(F).
Harmon’s right to continue participating in the workers’ compensation fund was
ultimately established upon appellant’s dismissal of the case with prejudice. The trial
court’s award of $3,800 in attorney fees is supported by competent evidence in the record.
{¶60} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court
to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, A.J., and SEAN C. GALLAGHER, J., CONCUR