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Ramirez v. Toledo Stamping & Mfg. Co.9/13/1996
Per Curiam.
This is an accelerated appeal from an order of the Lucas County Court of Common Pleas filed on September 18, 1996, ruling on a motion from appellant, Carmen Ramirez, for attorney fees and costs following the of an appeal brought by appellee Toledo Stamping & Manufacturing Company from of the Toledo Regional Board of Review granting appelhmt's claim for worker's compensation. Appellant presents the following assigmnents of error:
"First Assignment of Error
"The trial court erred by not awarding attorney fees to Mrs. Ramirez on the mistaken assumption that right to participate or to continue to participate in the Workers' Compensation Fund was not established upon the final determination of the appeal in this case.
"Second Assignment of Error
"The court of connnon pleas erred by finding that the parties had settled this case and that therefore appellant was not entitled to an award of attorney fees.
"Third Assignment of Error
"The court of common pleas erred by denying reimbursement to appellant for an expert witness fee.
"Fourth Assignment of Error
"The court of common pleas erred by denying reimbursement to appellant for both stenographic and videotape costs."
We turn now to the first and second assigmnents of error, which we will consider together.
Appellant represents to this court that she ftputes whether a settlement was actually reached in this can. However, she contends that, even assuming that a settlement was reached, the trial court erred when it ruled that she was not entitled to attorney fees following the settlement and of the appeal in that court. Appellee contends that a settlement was reached, and that a settlement and subsequent dismissal is not a final determination on appeal that appellant is entitled to participate in the Workers' Compensation Fund.
The record contains an order filed by the trial court on October 19, 1994, in which the trial court states:
"This case was called for trial this 17th day of October 1994. All parties present by counsel. Counsel have represented to the court that this case is to be settled and dismissed with prejudice. Case is continued to for filing of an agreed journal entry of dismissal approved by all counsel."
The trial court subsequently filed a judgment entry on January 26, 1995, signed by counsel for all parties, which states: "Case settled and with prejudice at defendant Toledo Stamping & Manufacturing Company's costs."
On April 27, 1995, appellant filed a motion in the trial court for attorney fees and expenses. The motion was opposed by appellee, and on September 8, 1995, the trial court filed the opinion and judgment entry from which appellant brings this appeal. In the opinion and judgment entry, the trial court made the following ruling that is pertinent to the issues raised in appellant's first and second assignments of error. " he trial for attorney fees is not allowable pursuant to R.C. 4123.512(F), inasmuch as plaintiffs right to participate was not established upon a final determination of the appeal, as the parties entered into a settlement of this case and it was subsequently dismissed."
R.C. 4123.512(F) provides:
"The cost of any legal proceedings authorized by this section, including an attorney's fee to the appellant's attorney to be by the trial judge, based upon the effort expended, in the event the appellant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the emp
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