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French v. Sysco Food Service of Cleveland5/16/1996
JUDGMENT: REVERSED AND REMANDED.
Plaintiff-appellant Stephen French ("appellant") appeals the dismissal of his workers' compensation appeal for failure to prosecute and the entry of judgment in favor of defendant-appellee SYSCO Food Service of Cleveland, Inc. ("appellee").
Appellant assigns the following error upon appeal:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S APPEAL WITH PREJUDICE FOR WANT OF PROSECUTION PURSUANT TO RULE 41(B)(1) OF THE OHIO RULES OF CIVIL PROCEDURE AND THUS ERRED TO THE PREJUDICE OF THE APPELLANT.
Finding the appeal to have merit, the judgment of the trial court is reversed.
I.
This is a workers' compensation case brought by appellant pursuant to R.C. 4123.512.
On June 24, 1994, appellant filed a claim with the Ohio Bureau of Workers' Compensation for injuries which he sustained during the course of and arising out of his employment with appellee. Subsequently, on September 2, 1994, a hearing was conducted before a District Hearing Officer of the Industrial Commission. Appellant's complaint, however, was disallowed. Appellant appealed the denial of his complaint by the District Hearing Officer, and on November 22, 1994, a Staff Hearing Officer heard the matter. Appellant's appeal was denied and the decision of the District Hearing Officer was affirmed. Appellant then appealed to the Industrial Commission; and on March 1, 1995, appellant's appeal was again denied. Denial of appellant's appeal was mailed on March 21, 1995.
On May 22, 1995, pursuant to R.C. 4123.512, appellant filed a notice of appeal in the trial court from the decision of the Industrial Commission denying his workers' compensation claim. On July 31, 1995, appellee filed a motion to show cause and requested that the trial court dismiss appellant's appeal for failure to prosecute pursuant to Civ.R. 41 (B)(1). Subsequently, on August 11, 1995, appellant filed a brief in opposition to appellee's motion to show cause, as well as a motion for leave, instanter, to file his complaint. On August 18, 1995, appellee filed a motion for leave to file, instanter, its reply brief.
The trial court granted appellee's motion for leave to file reply brief, instanter, on September 5, 1995. And, on September 14, 1995, the trial court journalized the following entry: "Plaintiff's motion to show cause is granted. Plaintiff's appeal is dismissed with prejudice for want of prosecution." However, after a complete review of the file and the motions contained therein, it is clear that the trial court actually intended to grant the defendant-appellee's motion to show cause in that plaintiff-appellant never filed said motion with the court.
II.
In his sole assignment of error, appellant contends that the trial court abused its discretion when it dismissed his appeal with prejudice for want of prosecution pursuant to Civ.R. 41(B)(1).
R.C. 4123.512 allows a claimant to appeal an order of the industrial commission to the court of common pleas. R.C 4123.512 states in pertinent part that:
he appellant shall file the notice of appeal with a court of common pleas within sixty days after the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer's decision * * * . The filing of the notice of appeal with the court is the only act required to perfect the appeal.
* * * The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of the facts in ordinary and concise language showing a cause of action to participate or to continue
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