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Sanford v. D & T Limousine Service12/7/1995
Plaintiff-appellee, Joseph B. Sanford, was injured in the course of and arising out of his employment with defendant-appellant, D&T;Limousine Service, Inc. ("D&T;), on January 22, 1990. Sanford filed his application for compensation with the Industrial Commission of Ohio ("the commission") in February 1990. Sanford's right to receive benefits from the Workers' Compensation Fund was tentatively approved on April 10, 1990, and thereafter confirmed by District Hearing Officer on August 10, 1990, the Regional Board of Review on March 20, 1991, and the commission on October 28, 1992.
D&T;filed an appeal in the Court of Common Pleas of Cuyahoga County pursuant to R.C. 4123.519 (presently R.C. 4123.512) on November 17, 1992. It voluntarily dismissed the appeal on August 10, 1993 as permitted by Civ.R. 41(A)(1)(a).
Sanford filed a Motion to Designate and Tax Court Costs Including Attorney Fees on August 25, 1993. The trial court received briefs on the issue and, without conducting a hearing, granted Sanford's motion for statutory attorney fees on October 14, 1993.
D&T;appealed the October 14, 1993 ruling to this court on November 10, 1993 based upon the trial court's failure to conduct an evidentiary hearing, App. No. 66461. We dismissed the appeal on February 1, 1994 for lack of a final appealable order since the trial court failed to specify the amount of the judgment in the October 14, 1993 entry.
The trial court held a pretrial on March 30, 1994 with regard to the attorney fees issue. After the parties submitted evidentiary materials, the court issued the following journal entry on June 1, 1994:
This action coming on for hearing before the Court, and the issues having been duly heard and a decision having been duly rendered,
IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion filed August 25, 1993, to designate and tax court costs including attorney fees is granted in the sum of Two Thousand One Hundred Twenty-Four Dollars ($2,124.00).
D&T;filed a Motion to Clarify Judgment and to Enter Nunc Pro Tunc Order on January 10, 1995 ("motion to clarify"). The motion set forth that D&T;s counsel contacted the attorney general's office, the office which represents the commission and the Bureau of Workers' Compensation ("the bureau"). D&T;requested the commission and bureau pay the attorney fees awarded to Sanford and then assess a premium against D&T; a state-funded employer. The bureau and commission denied the request. D&T;argued to the trial court in its motion to clarify that, based upon a journal entry issued in a separate case in the court of common pleas, and its past practice with the bureau and commission, the bureau's and commission's policy was to pay attorney fees and then assess them against the employer.
The trial court, on February 7, 1995, rejected D&T;s suggestion that the bureau and commission be ordered to pay Sanford's attorney fees. The court instead adopted the bureau's and commission's recommended nunc pro tunc order which ordered D&T;to directly pay Sanford's counsel's fees.
This appeal followed with D&T;claiming as error:
THE TRIAL COURT'S ORDER WHICH DENIED D&T;S MOTION TO ENTER NUNC PRO TUNC ORDER AND WHICH INSTRUCTED D&T;TO DIRECTLY PAY ATTORNEY'S FEES TO JOSEPH SANFORD'S COUNSEL WAS ERRONEOUS BECAUSE IT COMPLETELY ABANDONED THE LANGUAGE OF OAC [SECTION] 4121-3-18 WHICH DIRECTS THE ADMINISTRATOR, NOT THE EMPLOYER, TO PAY AN AWARD OF ATTORNEY'S FEES TO THE PLAINTIFF'S COUNSEL AND SUBSEQUENTLY BILL THE EMPLOYER FOR THAT FEE.
D&T;challenges neither the trial court's award of att
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