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Harmon v. Cuyahoga County

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 22, 2017

LINDA HARMON PLAINTIFF-APPELLEE
v.
CUYAHOGA COUNTY, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-838317

          ATTORNEYS FOR APPELLANTS Michael C. O'Malley Cuyahoga County Prosecutor BY: Dale F. Pelsozy Assistant Prosecuting Attorney.

          Also Listed For Bureau of Workers' Compensation Mike DeWine Ohio Attorney General Thomas M. McCarty Assistant Attorney General.

          ATTORNEYS FOR APPELLEE Mitchell A. Stern Mitchell A. Stern, L.P.A., Brian M. Taubman Bruce D. Taubman Taubman Law, Barry A. Trattner Trattner & Associates.

          BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR, JUDGE.

         {¶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."

         {¶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.

         {¶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 ...


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