Civil Appeal from Common Pleas Court Trial Court Case No. 2012-CV-06352
BOBBIE WRIGHT Plaintiff-Appellant, pro se
DOUGLAS S. JENKS, Atty. Reg. #0079647, and GARY W. AUMAN, Atty. Reg. #0010414, Dunlevey, Mahan & Furry Attorneys for Defendant-Appellee, Miami Valley Hospital
CHRISTOPHER HOGAN, Atty. Reg. #0079647 Attorney for Defendant-Appellee, Careworks Consultant
(¶ 1} Bobbie Wright appeals pro se from the trial court's decision, order, and entry dismissing her workers' compensation appeal pursuant to Civ.R. 41(B)(1) for failure to prosecute.
(¶ 2} Wright's appellate brief consists of a letter to this court. She requests a hearing to prove her entitlement to workers' compensation benefits due to alleged HIV exposure while working at Miami Valley Hospital ("MVH"). Although Wright no longer works there, she contends she should have received disability and workers' compensation benefits. Wright claims she has evidence that she contracted HIV through her work. Her letter fails, however, to address the trial court's basis for finding dismissal proper.
(¶ 3} The record reflects that Wright filed a workers' compensation claim, which was denied. Following final administrative review by the Industrial Commission, Wright sought judicial relief She filed a pro se notice of appeal in the trial court on August 31, 2012, naming as defendants MVH, Careworks Consultants, and the law firm of Dunlevey, Mahan & Furry. (Doc. #1).
(¶ 4} On September 27, 2012, Careworks moved for dismissal under Civ.R. 12(B)(6). (Doc. #11). The law firm moved for Civ.R. 12(B)(6) dismissal on October 5, 2012. (Doc. #13). That same day, MVH sought Civ.R. 41(B)(1) dismissal for failure to prosecute. (Doc. #12). MVH argued that it was unclear whether Wright's August 31, 2012 filing was a notice of appeal or a complaint. If the document was a notice of appeal, MVH argued it was entitled to dismissal for failure to prosecute because Wright had not filed a complaint as required by R.C. 4123.512(D). Alternatively, if the document was a complaint, MVH claimed dismissal was appropriate because Wright had not filed a notice of appeal invoking the trial court's jurisdiction. Either way, MVH asserted that dismissal was proper because the August 31, 2012 document could not be both the notice of appeal and the complaint. Wright filed a pro se response on October 22, 2012, asking "to have the case allowed" and professing to have evidence to support a workers' compensation claim. (Doc. #14).
(¶ 5} The trial court sustained the Civ.R. 12(B(6) motions filed by Careworks and the law firm. (Doc. #19). It also sustained MVH's motion to dismiss for failure to prosecute. (Doc. #20). The trial court observed that "nowhere in her response does Plaintiff address whether her [August 31, 2012] Notice is a notice of appeal or a complaint." (Id. at 2). The trial court proceeded to find that the document was a notice of appeal. (Id. at 3). It then determined that a workers' compensation notice of appeal and complaint could not be combined. (Id.). Therefore, it examined the record and found nothing else Wright had filed that could be construed as a complaint. It reasoned:
* * * Plaintiff has filed only three items: her Notice of Appeal, her Response, and a "Notice: of Filing CD ROM of Evidence Filed" on October 22, 2012. The Notice, as previously discussed, cannot be both the notice and the complaint, so the Court has determined that it is a notice of appeal. The Response is clearly a response to one or several of the motions to dismiss filed, and thus is not a complaint. And the "Filing of Evidence" does not comport with the statutory requirements which state that a complaint must be a "statement of facts . . . showing a cause of action . . . ." R.C. §4123.512(D). Therefore, the Court finds that the Plaintiff has not filed a complaint in this matter as required by statute. [footnote omitted].
Without a complaint filed, the Court must finally consider whether the action should be dismissed pursuant to Civ.R. 41(B)(1). Defendant's Motion puts Plaintiff on notice that her claim may be dismissed. The Motion also illustrates several reasons why the requested dismissal should be granted such that Plaintiff should have been able to adequately respond. Plaintiff did indeed respond to Defendant's Motion, but her Response did not set forth (1) whether the Notice filed was a notice of appeal or a complaint or (2) any good cause or reason why she should be provided an opportunity to file a complaint beyond the 30 days. Therefore, Plaintiff has not met her burden in showing good reason why this appeal should not be dismissed for failure to prosecute.
(Id. . at 3-4).
(¶ 6} On appeal, Wright does not address the trial court's basis for sustaining the motions to dismiss filed by MVH, Careworks, and Dunlevey, Mahan & Furry. In her letter, she asserts only that she can prove her entitlement to workers' compensation and disability benefits. It is well settled that "an appellant carries the burden of affirmatively demonstrating error on appeal." PNC Bank, N.A. v. Craig, 2d Dist. Montgomery No. 25010, 2012-Ohio-5410, ¶6. This rule applies equally to parties represented by counsel and pro se litigants. Id. Because Wright has not even addressed the trial court's grounds for sustaining the motions to ...