Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Michael C. O'Malley Cuyahoga
County Prosecutor BY: Dale F. Pelsozy Assistant Prosecuting
Listed For Bureau of Workers' Compensation Mike DeWine
Ohio Attorney General Thomas M. McCarty Assistant Attorney
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
D. CELEBREZZE, JR, JUDGE.
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.
Factual and Procedural History
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.
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. On July 26, 2012, Harmon's claim was
granted in an administrative order for "sprain lumbar
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
[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.
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.
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
Appellant filed an appeal on December 21, 2012, challenging
the staff hearing officer's ruling. On January 2, 2013,
appellant's appeal was refused.
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. 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.
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.
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."
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
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.
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
II. The court abused its discretion in awarding attorney
Law and Analysis
Propriety of Attorney Fees Award
In its first assignment of error, appellant argues that
Harmon was not entitled to an award of statutory ...