Counsel for Ashtabula County Prosecuting Attorney …...Thomas L Sartini Prosecuting Attorney 25...

IN THE SUPREME COURT OF OHIO

The State of Ohio, ex rel . On Appeal from theWilliam Beck, et al., . Franklin County Court of Appeals,

Tenth Appellate District

Appellants,

vs.

The Industrial Commission of Ohio, et al.,

Appellees.

Court of Appeals (original action)Case No. 04AP-1094

Case No. 08-0707

REPLY BRIEF OF APPELLANTS WILLIAM BECK AND BRUCE SMITH

Judith B. Goldstein (0069655)Equal Justice Foundation88 East Broad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (624) 221-9810j goldstein(a)equaliusticefoundation.com

Counsel of Record for Appellants, William Beck and Bruce Smith

Elise PorterAndrew J. AlatisAssistant Attomey GeneralWorkers' Compensation Section150 East Gay Street, 22°d FloorColumbus, Ohio 43215

Counsel for AppelleeIndustrial Commission of Ohio,Ohio Bureau of Workers' Compensation, &Administrator of the Bureau of Workers' Compensation

Elizabeth M. PhillipsAssistant Prosecuting Attorney21 West Boardman Street, 6th FloorYoungstown, Ohio 44503

Counsel for Mahoning County

Thomas L SartiniProsecuting Attorney25 West Jefferson StreetJefferson, Ohio 44047Counsel for Ashtabula County

H L L^LDJAIAi

CLERK OF COURTSUPREM^ C®UR7 (^^ OHIO J

TABLE OF CONTENTSPage

TABLE AUTHORITIES .............................................................................. iv

ARGUMENT ............................................................................................ 1

Reply Proposition of Law No.1: THE COURT HAS SUBJECT MATTERJURISDICTION TO CONSIDER THIS APPEAL BECAUSE IT WAS FILED WITHIN 145 DAYS AFTER THE ENTRY OF THE JUDGMENT BEING APPEALED....

Reply Proposition of Law No. 2: THE FEBRUARY 29, 2008 JOURNAL ENTRY IS AFINAL APPEALABLE ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reply Proposition of Law No. 3:RELATORS BECK AND SMITH HAVE STANDINGTO REPRESENT THE INTERESTS OF THE PROPOSED CLASS MEMBERSBECAUSE THE DECEMBER 19, 2006 DECISION IN FAVOR OF RELATORS 6AUTOMATICALLY ACCRUES TO THE BENEFIT OF THOSE IN THE PROPOSEDCLASS WITHOUT RESORT TO CLASS LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . .

CONCLUSION ......... ... ...... ............ ...... ..... .. ..... ....... ........... ..... ..... ..... ......... 8

PROOF OF SERVICE .................................................................................. 9

APPENDIX Appendix Page

Notice of Appeal to the Ohio Supreme Court(Apri114,2008) ............................................... ..........I

Journal Entry of the Tenth District Court of Appeals(February 29, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Relators'. Motion for Status Conference and For Compliance ReportFrom Respondents(February 25, 2008) ............................................ ......... 5

ii

December 19, 2006 Order of the Tenth District Court of Appeals inBeck v. Industrial Commission, No. 04AP-1094, 2006 Olzio App. LEXIS6658 (10°i Dist. Dec. 19, 2006), including Magistrate's Decision atAppendix A (September 23, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Relators' Brief on the Merits in Support of Writ of Mandamus(December 23, 2004) ........................... ............... ........ 19

August 12, 2008 Letter from Gary Zamary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

CONSTITUTIONAL PROVISIONS; STATUTES:

R.C. 2505.02 ........................................................ 4

Section 16, Article I, Ohio Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

iii

TABLE OF AUTHORITIESCASES Page

Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 8

Hall v. Hall, Case No. CA 8146, 1983 Ohio App. LEXIS 13998,(Second Dist. Oct. 15, 1983) .................................................. 5

In re Ross ( 1997), 116 Ohio App. 3d 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Moore v. Ogilvie, 394 U.S. 814 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ohio Service Group, Inc. v. Integrated & Open Systems, LLC, No. 06AP-433,2006 Ohio App. LEXIS 6633 (Tenth Dist. Dec. 19, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

See Sosna v. Iowa, 419 U.S. 393, 399 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State of Ohio Dept. of Natural Resources v. Hughes, Case No. E-01-026,2002 Ohio App. LEXIS 1321, (Sixth Dist. March 22, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 5,6

Susman v. Lincoln American Corporation, 550 F.Supp.442 (N.D. 111. 1982) . . . . . . . . . . . . 7

U.S. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Van Wie v. Kreppner, Case No. 53352, 1988 Ohio App. LEXIS 324,(8cn Dist. Jan. 28, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iv

REPLY ARGUMENT

I. THE COURT HAS SUBJECT MATTER JURISDICTION TO CONSIDERTHIS APPEAL BECAUSE IT WAS FILED WITHIN 45 DAYS AFTER THEENTRY OF THE JUDGMENT BEING APPEALED.

On December 19, 20061 the Tenth District Court of Appeals held that ". . . a

determination in favor of relators regarding the applicability of Patterson to work-relief

employees `would automatically accrue to the benefit of those in the proposed class

without resort to class litigation."' (App. 8-9). That determination in favor of relators

automatically accruing to the benefit of the proposed class members held that ". ..

relators' request for a writ of mandamus is granted ordering the commission to apply

Patterson to the facts of their case, and to properly calculate relators' AW W[Average

Weekly Wage]." (App. 10). On February 25, 2008, Appellants filed a "Motion for Status

Conference and For Compliance Report from Respondents," requesting that the Tenth

District Court of Appeals order the Industrial Commission to report with particularity on

the mechanisms and results of its implementation of the December 20, 2006 Order, with

respect to those persons to whom the benefit accrued ("the beneficiaries"), or to show

cause why it has not complied with the Court's Order. (App. 5). On February 29, 2008,

the Court of Appeals denied Appellants' motion because "[t]his court did not uphold a

request for class certification." Relators appealed that decision on April 14, 2008, within

45 days of the Journal Entry. Therefore, Relators' appeal was timely filed in accordance

with the Rules of Practice of the Supreme Court.

The Industrial Commission's assertion that the Court does not have jurisdiction

over Appellants' claims is based on the false conclusion that Appellants are appealing the

' The Decision was rendered on December 19, 2006, and the Judgment Entry was filed onDecember 20, 2006.

"Tenth District's denial of certification of a class." (Appellee's Brief, 3). The Industrial

Commission is attempting to re-characterize Appellants' requests for relief. The Court is

bound to consider the actual causes of action before it and the Industrial Commission

cannot change the type of relief Appellants are seeking.

Looking at Appellants' Brief on the Merits, Appellants have asked this Court to

remand the case to the Tenth District Court of Appeals to order the Industrial

Commission to report with particularity on the mechanisms and results of its

implementation of the December 20, 2006 Order, with respect to those persons to whom

the benefit accrued, or to show cause why it has not complied with the Court's Order. In

other words, Appellants have requested the Tenth District Court determine whether all of

the beneficiaries of the December 2006 Order have had Patterson applied to the facts of

their cases and have had their AWW calculated properly. Only in that way will

Appellants know whether they must move the Court to enforce the Order to ensure that

all beneficiaries receive the benefit of the decision automatically accruing to them. The

Court's denial of Appellants' motion effectively denies the beneficiaries the opportunity

to recover from a judgment in their favor, namely property (workers' compensation

benefits)Z due and owing them; the opportunity to be given notice that a judgment

accrued to their benefit; the opporfunity to be given notice that they were denied workers'

compensation benefits; and the opportunity to be heard on that denial. Therefore, the

Court has jurisdiction over Appellants' claims.

Appellants concede that they requested this Court to certify a class of

beneficiaries. That request was not based on the Tenth District Court of Appeals'

2 Workers' compensation benefits constitute a valuable property right to which DueProcess rights attach. In re Ross (1997), 116 Ohio App. 3d 402, 406.

2

December 20, 2006 Journal Entry decertifying the class. That request was based on the

change in circumstances that occurred and the need that arose on February 29, 2008,

when the Court denied Appellants' motion to show whether the proposed class member

beneficiaries were provided with the relief that "automatically accrued" to their benefit.

Despite the fact that the Court found that a class was not necessary for the beneficiaries to

recover from a judgment in favor of the relators, the Court was clear that it refused to

determine whether the Industrial Commission complied with its Order because "the court

did not uphold a request for class certification." (App. 4). Therefore, on February 29,

2008, the "need requirement" for class certification was met and a class should be

certified in order for the beneficiaries to receive the benefit of the decision automatically

accruing to them.

II. THE FEBRUARY 29, 2008 JOURNAL ENTRY IS A FINAL APPEALABLEORDER.

The Industrial Commission's assertion that Appellants did not appeal from a ftnal

appealable order is based on the false conclusions that: (1) Appellants are appealing the

"denial of a status conference"; and (2) the relief awarded in December 2006 accrued

only to the benefit of Beck and Smith. (Appellee's Brief, 5 - 7). The Industrial

Commission is attempting to re-characterize Appellants' requests for relief. The Court is

bound to consider the actual causes of action before it and the Industrial Commission

cannot change the type of relief Appellants are seeking.

Appellants have appealed from the February 29, 2008 Journal Entry denying

Appellants' motion to order the Industrial Commission to report with particularity on the

mechanisms and results of its implementation of the December 20, 2006 Order, with

respect to those persons to whom the benefit accrued, or to show cause why it has not

3

complied with the Order. The Court's denial of Appellants' motion effectively denies the

beneficiaries the opportunity to recover from a judgment in their favor conferring

workers' compensation benefits due and owing them; the opportunity to be given notice

that a judgment accrued to their benefit the opporhznity to be given notice that they were

denied workers' compensation benefits; and the opporhxnity to be heard on that denial.

R.C. § 2505.02(B) provides that an order is a final order when it is "...[a]n

order that affects a substantial right made in a special proceeding or upon a summary

application in an action after judgment." R.C. § 2505.02(A)(1) defines "substantial

right" as "a right that the United States Constitution, the Ohio Constitution, a statute, the

common law, or a rule of procedure entitles a person to enforce or protect." Section 16,

Article I of the Ohio Constitution provides, inter alia, that every person who sustains a

legal injury "shall have remedy by due course of law." The "due course of law"

provision in Section 16, Article I of the Ohio Constitution "is the equivalent of the `due

process of law' provision in the Fourteenth Amendment to the United States

Constitution." See Ohio Service Group, Inc. v. Integrated & Open Systems, LLC, No.

06AP-433, 2006 Ohio App. LEXIS 6633, *4 (Tenth Dist. Dec. 19, 2006). Relators and

the proposed class were provided a remedy to their legal injury on December 19, 2006

when the Industrial Commission was ordered to "apply Patterson to the facts of their

case, and to properly calculate relators' AWW." (App. 10). As this remedy "would

automatically accrue to the benefit of those in the proposed class without resort to class

litigation," (App. 8-9), the beneficiaries have the right to recover the benefits conferred in

the judgment entry and the Court has the power to ensure the beneficiaries recover their

benefits. "A trial court is vested with the inherent power to take necessary action to see

4

that its order as spelled out in the judgment entry is complied with by the parties." Van

Wie v. Kreppner, Case No. 53352, 1988 Ohio App. LEXIS 324, *10 (8t' Dist. Jan. 28,

1988)(attached). A court reserves jurisdiction to enforce compliance with the terms of its

judgment. See Hall v. Hall, Case No. CA 8146, 1983 Ohio App. LEXIS 13998, * 3

(Second Dist. Oct. 15, 1983)(attached). The relators and the proposed class have the

right to know whether the Industrial Commission has complied with the Court's Order

and, if it has not, to move the Court to enforce the Order. The February 29, 2008 Journal

Entry effectively denied the beneficiaries' substantial right to their legally obtained relief.

In State of Ohio Dept. of Natural Resources v. Hughes, Case No. E-01-026, 2002

Ohio App. LEXIS 1321, (Sixth Dist. March 22, 2002)(attached), a landowner sold land to

the Department of Natural Resources ("DNR") and entered into an agreement that in

exchange DNR would not object at a zoning hearing regarding adjacent land. The

agreement had been read into the record of the case and made part of the conunon pleas

court's prior judgment. When a DNR officer later objected regarding the land at a zoning

hearing, the landowner alleged that DNR breached the agreement, sought post judgment

relief, and wanted to depose the officer. The common pleas court did not allow discovery

to be reopened.

On appeal, the Court held that the denial of the landowner's attempt to enforce the

judgment through the deposition affected her substantial rights.

Courts have a particular interest in their own judgments and areinvested with fundamental and inherent authority to enforce proper ordersand judgments. Record Publishing Co. v. Kainrad (1990), 49 Ohio St.3d296, 300, 551 N.E.2d 1286. Consequently, an allegation that a partyviolated an order or decree of the court while the case is still pendingshould be of great interest to the Court.

5

In this case, appellant came forth with a specific allegation that oneof appellee's agent's expressly violated the settlement order entered asjudgment of the court. Appellant sought discovery to probe whetherindeed appellee was responsible for this purported violation of thecourt's order. The court refused leave for such discovery andultimately foreclosed further discovery efforts. Thus, the courtextinguished discovery, affecting appellee's substantial rights toaddress a violation of a court order in the pending action. Suchextinguishment constitutes an abuse of the court's discretion and requiresreversal of the court's order denying discovery.

Id at * 7-8 (emphasis added). Similarly, in the case at bar, Appellants have asked the

Court to determine, through a compliance report, whether the Industrial Commission has

complied with the Court's December 2006 Order. The Tenth District Court extinguished

Appellants' attempt to discover whether the Industrial Commission violated the Court's

Order and to later move the Court to enforce the December 2006 Order. Thus, the

February 29, 2008 Journal Entry is a final appealable order.

III. RELATORS BECK AND SMITH HAVE STANDING TO REPRESENT THEINTERESTS OF THE PROPOSED CLASS MEMBERS BECAUSE THEDECEMBER 19,2006 DECISION IN FAVOR OF RELATORSAUTOMATICALLY ACCRUES TO THE BENEFIT OF THOSE IN THEPROPOSED CLASS WITHOUT RESORT TO CLASS LITIGATION.

Relators Beck and Smith alleged a personal stake in the outcome of the

controversy when they filed the mandamus action and requested class certification. Their

personal stake continued throughout the entirety of the litigation and throughout this

appeal process. In fact, Appellees have falsely stated to this Court that Smith's

workers' compensation benefits have been recalculated and paid. As Appellees well

know, Smith has not in fact been paid his workers' compensation benefits due and owing

in accordance with the December 2006 Order. (App. 61, August 12, 2008 Letter from

Gary Zamary showing that Smith has not been paid his workers' compensation benefits).

Further, Appellees' argument that Beck and Smith do not have standing to demand the

6

Industrial Commission report to the Court whether it has complied with the Court's

December 2006 Order leaves this case "capable of repetition, yet evading review." Moore

v. Ogilvie, 394 U.S. 814 (1969). Appellees in this case can be expected to act contrary to

the rights of the beneficiaries. Relators have standing to represent the interests of the

proposed class members.

Beck and Smith brought this suit as a class action and sought to litigate the writ of

mandamus ordering the commission to apply Patterson and to properly calculate their

AWW in a representative capacity. See Sosna v. Iowa, 419 U.S. 393, 399 (1975).

Although the class was decerdfied bythe Court of Appeals, the Court found that "a class

action is not necessary, as a determinafion in favor of relators regarding the applicability

of Patterson to work-relief employees `would automatically accrue to the benefit of those

in the proposed class without resort to class litigation."' (App. 12) The beneficiaries of

the December 2006 Decision have not been provided notice by the Industrial

Commission or the Court that a decision was made in their favor. As a class was not

certified, no class list was provided to Appellants' counsel and no notice was provided to

the beneficiaries of the decision. Thus, the beneficiaries need Beck and Smith to

represent them in attempting to enforce their rights and recover their benefits; they have

no way of knowing their rights and enforcing them otherwise.

Even if Smith had been provided final relief in this case, a controversy may exist

"between a named defendant and a member of the class represented by the named

plaintiff, even though the claim of the named plaintiff has become moot. " See id at 402;

see also Susman v. Lincoln American Corporation, 550 F.Supp.442 (N.D. Ill. 1982)

(Named plaintiffs have a sufficient personal stake in a class action to appeal the trial

7

court's denial of class certification, despite the mootness of their substantive claims); U.S.

Parole Comm'n v. Geraghty, 445 U.S. 388 (1980); Deposit Guaranty Nat'l Bank v.

Roper, 445 U.S. 326 (1980). Beck and Smith have a sufficient personal stake in the

outcome of this litigation, especially since Smith has not been provided fmal relief, to

represent the beneficiaries of the December 2006 Order. Substantial justice will only be

served if this case is remanded to the Tenth District Court of Appeals to order the

Industrial Commission to report with particularity on the mechanisms and results of its

implementation of the December 20, 2006 Order, with respect to those persons to whom

the benefit accrued, or to show cause why it has not complied with the Court's Order.

IV. CONCLUSION

For all of the above-stated reasons and the reasons stated in Appellants' Brief on

the Merits, Appellants request that the Court remand this case to the Tenth District Court

of Appeals to order the Industrial Commission to report with particularity on the

mechanisms and results of its implementation of the December 20, 2006 Order, with

respect to those persons to whom the benefit accraed, or to show cause why it has not

complied with the Court's Order.

Respectfully submitted,

ual Justice FoundationB. Goldstein (0069655)

8 East Broad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) [email protected] for Relators-Appellants

8

Certificate of Service

I hereby certify that a copy of this Reply Brief of the Appellants was sent by

>`hordinary U.S. mail to counsel for Appellees, on this -day of August, 2008, as

follows:

Elise PorterAndrew AlatisAssistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22a FloorColumbus, Ohio 43215Counsel for AppelleeIndustrial Commission of Ohio,Ohio Bureau of Workers' Compensation, &Administrator of the Bureau of Workers' Compensation

Thomas L SartiniProsecuting Attorney25 West Jefferson StreetJefferson, Ohio 44047Counsel for Ashtabula County

Elizabeth M. PhillipsAssistant Prosecuting Attorney21 West Boardman Street, 6th FloorYoungstown, Ohio 44503Counsel for Mahoning County

ith B. Goldstein (0069655)ual Justice Foundation

Columbus, Ohio 43215(614) 221-9800Fax No. (614) [email protected] for Relators-Appellants

8 East Broad Street, Suite 1590

9

APPENDIX PAGE NO.

Notice of Appeal to the Ohio Supreme Court(April 14,2008) ...............................................1

Journal Entry of the Tenth District Court of Appeals(February 29, 2008) ............................................ 4

Relators' Motion for Status Conference and For Compliance ReportFrom Respondents(February 25, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

December 19, 2006 Order of the Tenth District Court of Appeals inBeck v. Industrial Commission, No. 04AP-1094, 2006 Ohio App. LEXIS6658 (10th Dist. Dec. 19, 2006), including Magistrate's Decision atAppendix A (September 23, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Relators' Brief on the Merits in Support of Writ of Mandamus(December 23, 2004) .................................. ........ 19

August 12, 2008 Letter from Gary Zarnary . . . . . . . . . . . . . . . . . . . . . . . . . 61

IN THE SUPREME COURT OF OHIO

The State Of Ohio, ex relWilliam Beck, et al.,

Appellants,

vs.

The lndustrial Commission of Ohio, et al.,

Appellees.

On Appeal from theFranklin County Court of Appeals,Tenth Appellate District

Court of Appeals (original action)Case No. 04AP-1094

NOTICE OF APPEAL OFAPPELLANTS WILLIAM BECK AND BRUCE SMITH

Judith B. Goldstein (0069655)Equal Justice Foundation88 East Broad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) 221-98 10igoldstein(rr^equaliusticefoundation.com

Counsel of Record for Appellants, William Beck and Bruce Smith

Andrew Alatis Elizabeth M. PhiIlipsAssistant Attomey General Assistant Prosecuting AttomeyWorkers' Compensation Section 21 West Boardman Street, e Floor150 East Gay Street, 22°d Floor Youngstown, Ohio 44503Columbus, Ohio 43215

Counsel for Appellee, Mahoning CountyCounsel for AppelleeIndusixial Commission of Ohio,Ohio Bureau of Workers' Compensation, &Administrator of the Bureau of Workers' Compensation

Thomas L. SartiniProsecuting Attorney25 West Jefferson StreetJefferson, Ohio 44047Counsel for Appellee, Ashtabula County

t4f'P i `r 20JJ

CLERK OF COURTSUPREME GOU?T OF OliIO

1

NOTICE OF APPEAL OF APPELLANTS WILLIAM BECK AND BRUCE SMITH

Appellants VTilliam Beck and Bruce Smith hereby give notice of appeal to the

Supreme Court of Ohio from the judgment of the Franklin County Court of Appeals,

Tenth Appellate District, entered in Court of Appeals Case No. 04AP-1094, on Februazy

29, 2008.

This case is an appeal of right because it originated in the court of appeals.

Respectfnlly submitted,

TI B. Csoldstein 655)4al Justice Foundation

8f•EastBroad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) 221-9810i g-oldstein(creaualiusticefoundation.com

Counsel of Record for Appellants, WilliamBeck and Bruce Smith

2

2

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Notice of Appeal was sent by ordinary U.S.

mail to counsel for appellees this ^ day of Apri12008, as follows:

Andrew AlatisAssistant Attomey GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215

Thomas L. SartiniProsecuting Attomey25 West Jefferson StreetJefferson, Ohio 44047

Elizabeth M. PhillipsAssistant Prosecuting Attorney21 West Boardman Street, 6th FloorYoungstown, Ohio 44503

E AL JUS'IICE FOUNDATION88 East Broad Street, Snite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) 221-98 10

mi;zoldsteia@equaliusti,efoundation.co

u B. Goldst6in (0069655)

Counsel of Record forRelators William Beck and Bruce Smith

3

3

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The State [of Ohio] ex rel.William Beck, on behalf of himselfand all others similarly situated andBruce Smith, on behaif of himselfand all others simi{arly situated,

Relators,

v. No. 04AP-1094

Industrial Commission of Ohio, OhioBureau of Workers' Compensation,[William B. Mabe], in [his] official capacityas Administrator and CEO of The OhioBureau of Workers' Compensation,Ashtabula County and Mahoning County,

(REGULAR CALENDAR)

Respondents.

JOURNALENTRY

This court did not uphold a request for class certification. Relators'

February 25, 2008 motion for a status conference Is denied.

Judge Susan Brown

rn =@ ^^^1

^^ ^-fl Ll^_, J

0

4

IN T'HE OHIO COURT OF APPEALS C-3TENTH APPELLATE DIST'RICT r- m

1=7FRANKLIN COUNTY, OHIO,w aa `

^ ^

The State Of Ohio, ex relVTIIliam Beck, et al., Case No. 04APD 10-1094 =

Relators,Z^;

^

vs. Mag. Stephanie Bisca Brooks

The Industrial Commission of Ohio, et al.,

Respondents.

MOTION FOR STATUS CONFERENCEAND FOR COMPLIANCE REPORT FROM RESPONDENTS

On December 20, 2006, this Court entered judgment on the Commission's objections to

the Magistrate's September 23, 2005 decision, which had recommended issuance of a writ of

mandamus requiring respondents to vacate prior determinations of relators` average weekly wage

and entitlement to temporary total disability because the Commission made those determinations

without applying the Ohio Supreme Court's decision in State ex rel Patterson v. Indus. Comm.

(1996), 77 Ohio St. 3d. 201. The Court upheld the Magistrate's recommendation and issued the

writ, requiring respondents apply Patterson and recalculate relators' entitlement and average

weekly wage accordingly. This Court upheld the respondents' objecfions to the Magistrate's

recommendation to certify a class of similarly-situated relators, holding certification was

unnecessary because issuance of the writ in favor of the named relators "automatically accrue[s]

to the benefit of those in the proposed class without resort to class litigation." See December 19,

2006 Decision, pp. 8-9.

5

Since the issuance of the writ, relators' counsel has on several occasions requested that

respondents provide specific information as to the Commission's efforts to implement fully the

Patterson hold.ing to all individuals who would have been members of the proposed class, as this

Covrt directed. The Commission's counsel have given repeated assurances that these efforts are

progressing, which relators' counsel accepts. However, it has now been more than one year since

the Court's ruling, and counsel believes it appropriate that respondents provide the Magistrate

and counsel specific information about respondents' efforts, the mznner in which the Court's

order is being implemented, the extent to which the order has been satisfied or not yet satisfied,

the procedure by which those who may or may not be eligible for recalculation have been

notified and those denied afforded appeal rights, etc.

For these reasons, relators move this Court to order the Commission to report with

particularity on the mechanisms and results of its implementation of the December 20, 2006

order, and specifically as to those persons to whom the benefit of the order automatically accrued

without certification, and to schedule a statns conference before the Iviagistrate to report on and

discuss the Commission's plans and schedule for completing ffiill implementation of the Court's

writ of mandamus.

dstein (0069655)EQUAL JUSTICE FOUNDATION88 East Broad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) 221-9810jgoldstein(a)egualj usticefoundali on. com

Attorney for Relators VTilliam Beckand Bruce Smith

2

6

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served on the foIlowing this 25Ih

day of February, 2008, via regn]ar, first class, U.S. Mail:

Andrew AlatisAssistant Attomey GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215'

Thomas L. SartiniProsecuting Attorney25 West 7efferson StreetJefferson, Ohio 44047

Elizabeth M. PhillipsAssistant Prosecuting Attomey21 West Boardman Street, e FloorYoungstown, Ohio 44503

th B. Goldstein (00-69655)EQUAL JUSTICE FOUNDATTON88 East Broad Street, Suite 1590Colvmbus, Ohio 43215P: (614) 221-9800F: (614) 221-9810igoldstein@,equaliusticefoundation.com

Attorney for Relators William Beckand Bruce Smith

3

7

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2DD6 Ohio 6730, '; 2DD6 Ohio App. LEXIS 6658, **

The State [of Ohio] ez rel. Wtlllam 6eck, on behalf of himself and all others similarty situated and Bruce Smith, on behalf ofhimself and all others similarly situated, Relators, v. Industrial Commission of Ohio, Ohio Bureau of W orkers' Compensation,[Wllliam B. Mabe], in [his] official capacity as AdminFstrator and CL-O of The Ohio Bureau of Workers' Compensation, Ashtabula

County and Mehoning County, Respondents.

No.D4AP-1D94

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2D06 Ohlo 6730; 2006 Ohio App. LDSIS 6658

December 19, 2DD6, Rendered

DLSPOSITION: ['r*l] wrlt of mandamus granted.

CASE SUMMARY

PROCEDURAL POSTURE: Relators, work-reifef empioyees, sought a writ of mandamus ordering respondent, IndustrlalCommission of Ohio, to apply a decision of the Ohio Supreme Court to the caicuiatlDn of their average weekly wage, and tocertify the matter as a class action. A magistrate recommended granting the request for a writ of mandamus and certifyingthe matter as a class action. The Commission filed objections, in which a respondent county jolned.

OVERVIEW: The Ohio Supreme Court had found applying R.C. 5 4127.04 on calcuiating workers' compensation for work-refief employees, to a work-relief employee's dependent's claim for death benefits, violated equal protecUon. Applying g4127 to calculating the empioyees' average weekly wage also viofated equal protection berause the empioyees wereemployees, under R.C. 6 4123 01(A)(1)(a)and R.C. 6 4127.D4s separate ctassification based only on an employee's statusdid not treat simllarly situated persons, including empioyees and their dependents, similarly. Such disparate treatmentbetween work-reiief employees and non-work-rellef empioyees had no reasonabie justification, and 5 4127.04 was Inherentiyunfair and contrary to the purpose of compensating employees and their dependents. There was no basis to distfnguishbetween work-rellef employees and their dependents, so a finding that 5 4127.04 violated equal protection induded theemployees themselves. A class action was unnecessary, as a finding for the empioyees automaticaily accrued to the benefltof the proposed class. The Commission had tD properiy calculate the employees' average weekly wage rather than their fullweekly wage.

OUTCOME: The Commfssfon's and county's objectfons were sustained In part and overruled in part, anda writ of mandamusordering the Commission to recalculate the employees' ave2ge weekly wages was issued. The employees' request to certifya class was denied.

CORE TERMS: work-relief, class action, weekly, average weekly wage, workers' compensation, bureau, injured worker,industrial, 4airnant, mandamus, temporary, equal pkvtection, indNidual members, disability, statewide, ordering, writ ofmandamus, slmllariy situated, decedent, questtons of law, class certification, non-work-relief, classification, compensating,caVculation, requesting, certify, death benefits, separate actions, calendar

LEXISNEXIS® HEADNOTES S F1ide

r a+ el L > Foual ProtecLion > 5cene of Groted.ion AMW rkers' oe nH & SSDI > ae nt Dete f aH > Death Senenis

nxs$R C. 8 4127.D4 violates the equal protection clauses of the Ohio and United States Consbtutions, as the statuteunjustffiably discdminates against dependents of work-relief employees by preventing such dependents fromreceiving the same beneflts as dependents of other employees whose death Is caused by a work-refated injury ordisease. Ho Uke This H a Gt

w rkers<(iQmPp;yy &S DI_> -eneral Uv rvV wC

W rk rs' n H n& SSDf > Bnn Rt peterminations > General Ovefvteyw c

W rk rs' C oe -" &S^1> Ifenefit DeTenninetions > DeeM Benefils `rJY

Wz,fOhio's system ofcompensating employees and their dependents Is predicated upon Ohio Const art . II 5 35. andR C 65 4127 04 and 9123.59 were enacted to fuifill this objective of compensating employees and theirdependents. nore ut Thl H a te

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JGGLli11 V itG^LLL1..W Dcc[. vv/.^V iuuu.ûani ^.vuua.uûavtL

Workes' CemnensaUpn & S> DV 1"ap > Fmplnvment Rtlatlonshfps > G p tal Emplowees fP

K+9±R G 6 4123 D1(A)(1)(a) defines "employee," for workers' compensation purposes, to include every person in theservice of the state, or of any county, municipal corporation, township, or school districttherein. Mwe Dke Ttils Headnpte

ren,+.a.nipnal w> Eual Pmtemon > Scpoe or Protertion nury ^

WorkerV _- n" [ ernl >,^> FmplpVm9nt REIaHenships > RMeral Dyer\^lew'yt

MN°+R C 6 4127.D4 . in creatfng a separate classificztion for a dependent person based only upon the status of theemployee, does not treat similarly situated persons -- all empioyees and their dependents -- in a similar manner.R.C. 114127.04 Is unconstitutional because there was no reasonable justification for such disparate treatmentbetween work-relief employees and non-work-relief employees. mpre L1keTh1 R adnot

CpnstiRMenal Law > Eoual ProteCipn > Smne pf ProteCtlon t

Work rs' Cpmo nsat{on & e nI > v rao >Lmelpvment Relationshios > f, n ragg I pvPrvieN

HwS+The language employed by the Ohio Supreme Court, finding: (1) that R C 114127.0 4 does not treat similarly

situated persons -- all empioyees and their dependents -- in a similar manner; (2) that there exists no justificationfor dispa2te treatment between work relief employees and non-work relief employees; and (3) that R C. 6 4127 D4is Inherently unfair and contrary to the purpose of compensating employees and dependents, does not suggest adistlnction, for purposes of constitutional analysis, between work-relief employees and their dependents. Thus, thefinding that R.C, 6 4127 D4 is violative of equal pmtection is not limited solely to dependents of work-reliefemployees, but also includes work-relief employees themselves. Mpre Uke Thls Meadnote

r%ya ProQ.dure > J d'd I Offi > Ma Ist''ate= > Trial bv Co sent & Aooeal C

HxftAn appellate court independently reviews a magistrate's decision, and it Is free to adopt, reject, or modify the

magistrate's der3sion, hear additional evidence, recommit the matter to the magistrate wlth Instructions, or hear thematter. M Lk ThI He d ote

Ch.R PreQdure> Ll u A"+1 s > Prerepulsncs > General Overvlew Q

Ha7±The following seven requirements must be satisfied in order to maintain a class acbon under Civ. R. 23: (1) anidentiflable class must exist and the definition of the class must be unambiguous; (2) the named representativesmust be members of the class; (3) the class must be so numerous that joinder of all members Is impracYirable; (4)there must be questions of law or fact common to the class; ( 5) the claims or defenses of the representative partiesmust be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequatelyprotect the Interests of the class; and (7) one of the three Civ. R . 23(B) requirements must be met. Civ. R . 23(A).M. More L'k 7hisH ednote

Llvll PrpceduR > ct^ss 0.ct' > Prpreputeltne > r^^ I Cr,,ervimMnaagee Civ . R 23(5).

CNII Pre du > Clacs Aalons > c rtifimti Z^,

('siiRM el L > l'he Iudiderv > Case or Gontrpvenv > ronâr^ r{onaIilv of gi las Hon > General Overview "J

Hxg+Class certification is unnecessary, pursuant to Ctv. R. 231B1. under circumsthnces in which a litlgant, whlle notchallenging the constitutionality of a statute Itself, seeks to challenge the constitutlonality of itsimplementation. More uke This Headnote

Crvtl Proredure > qass Aeions > Certlfiration ^D

HA's°+When Class certffication Is sought by a litigant who seeks to chaifenge the constitutionality of a statute'simplementation, without challenging the constitutlonality of the statute, the issue Is not whether the proposedclass's challenge Is constitutional in nature; It Is whether the requested refief would automatically accrue to thebenefit of those In the proposed class without resort to class litigation. Mure ula'mrs Headnote

C1vN Prorndure >DASS-ACDID_ > PrcreouLtes > en rai O rvi ^

Mn11+7he application of a need requirement, for purposes of detennining whether to certify a class action, advances thepurpose of a class action, which is to simplify the resolution of complex litigation, not complicateIt. M Like Thfs Headtgte

W rk ' COMM"SMU20 & 55D7 > Benefit Detennlnetlons > General Dvervlew FOHrcas+See R.C. 6 4127.D4.

W rkers' Conimnotpri & SSDi > n^n fd De^^1naons > Geneal Overvlew IZ

HA'13+The gene2i assembly, in enacting R.C. 6 4127.01 et sen. and, particularly, R.C. 6 4127.04. intended to establish aseparate method for determining benefits forwork-relief employees and their dependents. It is evident that thegeneral assembly intended that 114127.04 be the applicable statute when determining awards to work-reliefemployees and thely dependents. More uke This Headnpte

W rke= o n aHOn & SRJI > senent DeterminaHOns > General Dvervl.w C1

nNS4+taws are to operate equally upon persons who are identified in the same class. Ohio's system of compensatingemployees and their dependents is predicated upon Dhio Const art. II. 6 35. This prvvision establishes that oneobjective of such a system Is to compensate workmen and their dependents, for death, lnjurles or octupationaldisease, occasioned in the course of such workmen's employment. Clearly, R.C.§§ 4127.D4 and 4123.59 were

r^^ I Law > Eoual PrUtedton > syrone of Protedion Q

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aearcn - D 1CCSU1TS ISecK W/.SU lIlOLSiildi l.OIi]IIIlSSiOU

enacted to fulfill this objective of compensating employees and their dependents. More Oke Th's Headnote

r"nsttt wnnal ta > Enual PrnM2lon > 5mne of PmtecBOn it,

Workerc' Comoensai(nn & SSDI > aenerk Detenninations > neral Overyiew f^

ron=saConserving funds Is not a viable basis for denying workers' compensation to a person entitied to such, and theclassifications created by R C 6 4127.04. regarding workers' compensation for work-refief employees, does nottend tD further the health, peace, morals, education or the good order of the people. Nor do the ciassificationsincrease the industry of the state, develop its resources, or add to the state's wealth orprosperity. pWre Like This Hesdnote

ronOttk ional w> Euual ProteCbon > c" n o^teftIOn C

L•lorkers' Comnensetfon k SSDI > Benettt Detenninetinns > General Overvlew IQ

N^'16a When the Ohio Supreme Court held R.C. 6 4127.Q4 . regarding the computation of workers' compensation for work-relief empioyees, violated equal protection, it did not limit its hoiding simply to "dependents" of work-reliefemployees but included those'empioyees' themselves. More uke'mts Heednote

COUNSEL: Equal Justice Foundation, )udith B. Goldstein, and Benson A. Wolman, for relators.

Jim Petro, Attomey General, and William ). McDonaid 46, for respondents Industrial Commission of Ohio, Bureau of Workers'Compensation, and the Administrator of the Bureau of W Drkers' Compensation.

Ellzabeth M. Philllps, Pssistant Prosecuting Attorney, for respondent Mahoning County.

JUDGES: BROWN, J. McGRATH and DESHLER, ))., concur. DESHLER, )., retired of the Tenth Appellate District, assigned toactive duty under authority of Section 6(C), Article IV, Ohio Constltution.

OPINION BY: BROWN

OPINION

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, ).

[*Pi] Refators, Wiliiam Beck and Bruce Smith, have filed an original action requesting that this court Issue a writ ofmandamus ordering respondent, Industriai Commission of Ohio ("commission"), to vacate its orders on the basis that thecommission fafied to apply to their cases the Ohio Supreme Court's holding In State ex re( Patterson v Indus Comm (1996),77 Ohio St.3d 201 1996 Ohio 263 672 N E 2d 10D6 thereby failing to properly calculate refators' average weekiy wage("AWW") and entitlement [*s2] to temporary total dtsability ("ITD") compensation. In addition to requestirg a writ ofmandamus ordering the commission to apply Patterson to the facts of their case, refators further request that this court certifythe matter as a ciass action. .

[•P2] This matter was referred to a magistrate of this court pursuant to Civ.R 53(C) and Loc.R. 12(M) of the Tenth DistrlctCourt of Appeals. The magistrate issued a decision, Including findings of fact and conclusions of law, recommending that thiscourt grant reiators' request for a writ of mandamus, and furtfier recommending that the matter be certified as a class actton.(Attached as Appendix A.)

[*P3] The commission has filed objections to the magistrate's dectsion, and respondent Mahoning County has joined In thoseobjections. The primary issue raised by the commission is whether the magistrate erred In applying the rationale in Patterson.suora. to the facts of the instant case. The commission maintains that the holding In Patterson Is limited to dependents of work-relief employees, and that it does not extend to work-refief employees themseives. The commission furt1ler contends Vt3]that, even assuming Patterson to be applicable, the magistrate erred in recommending class certification.

[•P4] In Pattefson, suora the Ohio Supreme Court held that yK:*R C. 4127.D4 violates the Equal Protet.tion Causes of theOhio and United States Constitutions, as the statute "unjustiflabiy discriminates against dependents of work-rerief employees bypreventing such dependents fivm receiving the same benefits as dependents of other employees whose death is caused by awork-related injury or disease." Id. at svllabus.

[-PS] In Patterson, involving a death benefits claim by a widow of a work-relief employee, the court observed that thelegisiat'rve Intent of R.C. Ctyya ter 4127 was to "estabiish a separate method for determining benefits for work-refief employeesand their dependents." Id . at 203. The court noted, however, that a^' rOhio's system of compensating employees and theirdependents is predicated upon Section 35 . Articie II of the Ohio Constitution and that 'R.C. 4127.D4 and 4123.59 were enactedto fulfill this objective of compensating empioyees and their ['eR4] dependents.' Id.. at 205.

[}P6] In considering whether Ohio's classification scheme was violative of equal protectfon, the court noted the fact thatappellant's decedent was a"work-rellef employee," as defined by R.C 4127.OSfA1. and that HN3''FR.C. 4123.01(!U(11fa)"defines 'empioyee' to Inciude '[e]very person in the service of the state, or of any county, municipal corporation, township, or

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JeSrch - o tCEsnliS 13ecK w/.lv 1natls[ltal l_olnmisswn

school district therein.' " Id. In construing those provisions, the court concluded that "[a]ppellant's decedent was **' an'employee' for purposes of receiving compensation due " Id.

[*P7] As a dependent of a work-relief employee, the decedent's widow in Patterson was awarded a weekly benefit, which thecourt observed was 'far below the minimum beneflt available to dependents of non-work-relief employees set forth In .R^.C4123.59(B) " Id. The court held that in creating a separate classifvcation for a dependent person based onlyupon the status of the employee, "does not treat similarly situated persons - all employees and their dependents -- in [**5] asimilar manner.' Id., at 2D6. In finding R C 4127,04 to be unconstitvtional, the court concluded that there was "no reasonablejust3fication•for such disparate treatment between work-relief employees and non-work-reiief employees." Id., at 207.

[•PS] In the instant action, the magistrate, In consldedng the language of Patterson, including the Dhio Supreme Court'sdetermination that Patterson (the appellant's decedent) himself was an "employee' for purposes of receiving compensation due,concluded that the Ohio Supreme Court did not limit Its analysis to dependents of work-reifef employees, but Inciuded'employees' themselves. The magistrate therefore found that Patterson was applicable to relators herein.

[sP9] Based upon this court's review of Patterson, we find the maglstrate's interpretation to be reasonable. Although theparticular facts of Patterson presented a dependent of a work-relief employee seeking death benefits, the court's analysisfocused upon whether work-reBef employees and non-work-relief employees were similarly situated. Further, HNSrthe languageempioyed by theOhio Supreme Court, [**6] finding: (1) that R.C 4127.04 "does not treat similarly situated persons -- allempioyees and their dependents -- In a similar manner"; (2) that there exists no justification for disparate treatment between'work reilef employees and non-work relief employees'; and (3) that R.C. 4127.04 Is "inherentiy unfair and contrary to thepurpose of compensating employees and dependents; does not suggest a distinction, for purposes of the court's constitutionalanalysis, between work-relief employees and their dependents. Thus, we agree with the magistrate's conduslon that the holdingin Patterson finding R C 4127 04 to be violative of equal protection, is not limited solely to dependents of work-reilefempioyees, but also Includes work-rellef employees themselves.

[*P30] The commission argues that the magistrate falled to address relators' allegations that their right to equal protertionwas violated. We disagree. Relators' position before the magistrate was not that this court should determine whether )3,G4127.04 was violative of equal protection concerns; rather, relators [**7] argued that Patterson had already decided the issue,but that the commission had continued to unlawfully apply that statute to work-relief compensation cases.

[*P11] The commission further contends that the majority In Patterson failed to express an appreciation of the inequalitiesbuilt into both the workers' compensation laws and the welfare system. However, to the extent the commission challenges thewisdom of the Patterson majorily's holding that there is no justification for disparate treatment between work-relief employeesand non-work-reifef employees, this court is bound to apply the majority oplnion unless and until that court tules otherwise.

[«P12] Accordingly, respondents' objections regarding the magistrate's interpretation and application of Patterson are notwell-taken and are overruied.

[*P13] As previously noted, the commission also challenges the magistrate's recommendation that this matter be certified asa class action. H^'*This court independently reviews a magistrate's decision, and we are Yree to'adopt, reject, or modify themagistrate's decision, hear addhional evidence, recommit the matter to the magistrate with Instructfons, [**S] or hear thematter.' ' Stafe ex rei Davis v Public Emalovees Retirement Bd Frankiin Aoo No. D4AP-1293 2005 Ohio 6612 at P13 ("DavisI"), affirmed, State ex re! Davis v Public Emolovees Retirement Bd 111 Ohio St 3d 116 2DO6 Ohlo 5339 855 N E 2d 444("Davis 77").

[*P14] In Hamilton v Ohio Savings Bank (1998)82 Ohio St 3d 67, 71 1998 Ohio 365 694 N E 2d 442 the Ohio SupremeCourt held that HKtthe following seven requirements must be satisfied In order to maintain a class action under Cv. :

* * * (1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the namedrepresentatives must be members of the class; (3) the class must be so numerous that joinder of all membe's isimpracticable; (4) there must be questions of law or fact common to the dass; (5) the ciaims or defenses of therepresentative partles must be typical of the claims or defenses of the class; (6) the representative parties mustfairiy and adequately protect the interests of the class; and (7) one of the three Ov.R. 23(B) requirements must bemet. Cv.R 23(A1 and M; [**9] Wamer v. Waste MoY. Inc. (1988). 36 Ohio St.3d 91. 521 N.E.2d 1091.

[•PIS] Civ R. 23(B) states as follows:

HntrAn action may be maintained as a dass actlon if the prerequisRes of subdivision (A) are satisFled, and Inaddition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(a) Inconsistent or varying adjudications with respect to individual members of the dass which would establishincompatible standards of conduct for the party opposing the dass; or

(b) adjudications with respect to individual members of the dass which would as a practical matter be dispositive ofthe Interests of the other members not parties to the adjudications or substantially impair or impede their abllity toprotect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, therebymaking appropriate final Injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

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(3) the court finds that the questions of law or fact common to the members of the class predominate [**10] overany questions affecting only individual members, and that a class action is superior to other available methods forthe fair and efFlcient adjudication of the controversy. The matters pertinent to the findings include: (a) the interestof inembers of the class in Individually controlling the prosecution or defense of separate actions; (b) the extent andnature of any lltigation conceming the controversy already commenced by or against members of the class; (c) thedesirability or undesirability of concentrating the litigation of the ciaims in the particular forum; (d) the difficultieslikely to be encountered in the management of a class action.

[*P16] This court has prevfousiy foundHN+class certiFlcation to be unnecessary, pursuant to Civ.R. 23fB1. undercircumstances In which a litigant, while not chaiienging the constitutionality of a statute itself, sought to challenge the"constitutionality of Its implementation.' Frisch's Res;taurant Inc v . Conrad Franklin Aoo No OSAP-412 2005 Ohio 5426 atp25. Under the facts of Frlsch's, appellants sought class certification to challenge the manner in which the administrator ofthe [**11] Bureau of Workers' Compensation handled dividend crediis on retrospectively rated state fund premiums. The trialcourt denied class certification, finding that class certification was not the superior method with which to determine appellants'claims.

[•P17] On appeal, this court noted that NN3O*'the issue was 'not whether a proposed class's challenge Is constEtutional innature; it Is whether the requested reilef would automatiraily acctue to the benefit of those In the proposed class without resortto class litigation.' Id., at P26. On this point, we held that "a detennination regarding the propriety of appellee's definition of a'subscriber' or policies granting dividend credits would automatically benefit any organization in the same position asappellants.' Id. This court further noted that 'the rAurt's decision will necessarily result in the bureau applying the samedefinitfons and standards to all of Its participants,' and that "[f]urther Iitigation would only be necessary if the bureau refused tocomply with a lawful court order." Id. at P27.

[*P18] This court has adopted this same prindple In other cases. See Davts I. at P19 (dass action certificationdenied [**12] to employees of county public defenders office challenging determination by state retirement board that theywere not entltied to participate in state retirement system; 'a determination in favor of relators would automaticaily accrue tothe benefit of others similarly situated'); Horvath v State Teachers RetirementBd fMar. 331 , 19951 FrankNn Aoo No.94LOPn7-9881995 nh' A DD. I PYiS 1292 (no abuse of discretion by trial CDurt in refusing to certify rdvse as a dass action;regardless of outcome of constitutional issue, State Teachers Retirement Board 'would be requirad, as It has in the past, toapply the decision consistently to all potential members of the class'); Smith v State Teachers Retirement Bd (Feb. 5 , 199B1Franklin Aoo No. 97APE07-943 1998 Ohlo Aoo LEXIS 403 (denial of class action certification proper as a verdict In favor ofappellants'would necessarily establlsh an identical legal framework applicable to all STRS members").

[*P19] More recently, the Ohto Supreme Court recognized that HHi=* [t]he application of a need requirement,' for purposesof determining whether to certify a class action, "advances the purpose of a class action, which is 'to simplify the resolution ofcomplez litigation, [**13] not complicate It.' (Emphasis sic.)" Davfs II, at P42. quoting Wamer v. Waste Momt. Inc. (1988),36 Ohio St 3d 91 97 521 N E 2d 1091.

[*P2D] In the present case, we similarly find that a dass action Is not necessary, as a determination in favor of relatorsregarding the applicabillty of Patterson to work-relief employees'would automatically accrue to the benefit of those in theproposed class without resort to dass litigation.' fdsch4, suora at P26. Accordingly, we reject the magistrate'srecommendation that this matter be certified as a class action, and respondents' objections as to the Issue of class certificationare sustained.

[*P21] Finally, relators have raised severel 'technical' objections to the magistrate's decision. More specifically, retators firsttake issue with the magistrate's statement that a writ of mandamus should issue ordering the cnmmission 'to pay relators TTbcompensatfon at their full weekly wage.' Relators argue, and the mmmission agrees, that the "full weekly wage" is used only tocalcuiate the compensation for the first 12 weeks for which compensation is payable. See R.C. 4123.61. On this point, [*=14]we find merit with relators' contentJon that the magistrate should have ordered the commission to perform the propercaicvlations of relators' AWW rather than full weekly wage.

[*P22] Relators also contend that the magistrate'miscalculated" their AWW. We disagree. While the magLtrate noted thatrelator Beck's weekly wage was $ 62.90, and Smlth's weekiy wage was $ 3D.B9, the magistrate made no calculation as torelators' average weekly wage. Further, In light of our detertnination that Patterson Is applicable to the facts of #his case, thecommission, on remand, will be directed to perform the proper calwlatbn of AWW in accordance with the evidence on file andapplication of the holding in Patterson.

[*P23] Based upon the foregoing, this court adopts the magistrate's findings of fact and conclusions of law as to themagistrate's determination that the commfssIon abused Its discretion in failing to apply the Ohio Supreme Court's hoiding inPatterson. However, we do not adopt the magistrate's recommendation that this matter be certffied as a class actton.Accordingly, respondents' objections are sustained in part and overruled In part, and reiators' request [**15] for a writ ofmandamus Is granted ordering the rommission to apply Patterson to the facts of their case, and to properiy calculate relators'AWW. Relators' request that this court certify this matter as a class action is denied. Finally, relators'

'technical' objections are sustained to the limited extent provided above, but are othenvise overruled.

Objections sustained in part and overruled In part;

writ of mandamus gmnted.

McGRATH and DFSHLER, JJ., concur.

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DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under authority of Sectiol) 6(C) Article IV OhioConstitution.

APPENDIX A

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

The State ex rel. William Beck, on behalf of himself and all others similarly situated and Bruce Smith, on behaif of himself andall others similarly situated, Retators, v. Industrial Commission of Ohio, Dhio Bureau of Workers' Compensation, [TinaKielmeyer], in [her) official capacity as Administrator and CEO of The Ohlo Bureau of Workers' Compensation, Ashtabula Countyand Mahoning County, Respondents.

No. D4AP-1D94

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Rendered on September 23, 2DD5

[**16] Equal Justice Foundation, Judith B. Goldstein and Kimberly M. Skaggs, for relato`s.

Jim Petro, Attomey General, and William J. McDOnald, for respondents Industrial Commission of Ohio, Bureau of Workers'Compensatlon, and the Administrator of the Bureau of Workers' Compensation.

EJizabeth M. Phillips, Assistant Prosecuting Attorney, for respondent Mahoning County.

IN MANDAMUS

[*P24] Relators Wllliam Beck and Bruce Smith have filed this mandamus action requesting that this court issue a writ ofmandamus ordering respondent, Industrfai Commission of Ohio ('commission`), to vacate its orders which failed to apply theSupreme Court of Ohio's holding from State ez re! Patterson v. Indus. Comm f19461 77 Ohio St 3d 2DI 1996 Dhio 263 672N.E 2d 1DDB. to their cases thereby failing to properly calculate their average weekly wage ('AW W') and entitlement totemporary total disabllity (TTD') compensation. Retators request a writ of mandamus ordering the commission to applyPatterson to the facts of their case and further request in their complaint that this court certify this matter as a ciass action.

Findings of Fact:

[*P25] 1. Both relators Beck [**17] and Smith were working as pubiic work-reilef employees at the time they sustainedInjuries. Beck was Injured on )une 26, 2002 whlle working as a laborer for Ashtabula County. Beck was attacked by bees,jumped off a truck, and broke his leg.

[*P26] 2. Beck filed a claim for workers' compensation with the Ohio Bureau of Workers' Compensation ("BWC") and thematter was assigned ciaim number 02-364475. Beck's daim was allowed for: "fracture right tibia, leg."

[*P27] 3. Beck flied a motion requesting that his AWW and full weekly wage ("FW W") be set at $ 248.37. The BWC referredthe claim to the cnmmission for further consideratlon of Beck's request and requested that Beck's motion be denied for thefollowing reasons:

The wages and compensation for PWRE claims are set and paid differently than other claims. The amount of workrelief payments the injured worker would have been entitled to for the calendar week that the injury o¢urred, is thebasis for computing compensations [sic) rates. Therefore BWC request denial to the injured workers methods ofsetting wages.

[*P26] 4. On November 20, 2002, a hearing was held before a district hearing officer ("DHO") [**16] who ultimately issueda corrected order mailed November 29, 20D2 setting Beck's AWW and FWW, and determining Trl) compensation as follows:

PursuaM to Ohio Revised Code 4127 04 the daimant's Average Weekly Wage and Full Weekly Wage are set at $82.90. This Is based on the clalmanNs public assistance receipts of $ 393.00 monthly divided by 4.5.

Temporary Total Compensation is ordered paid from D6/27/2002 through 10/01/2002. The claimant retumed towork on or about 10/02/2D02. This is based on the 07/15/2002 C-64 compieted by Dr. Myers.

Please pay temporary total compensation in accord with ORC 4127.03 which govems the payment of compensationin public works cases.

[tP29] S. Beck appealed fmm the DHO order and the matter was heard befora a staff hearing offlcer on January 17,2003. The SHD modified the prlor DHO order keeping Beck's AWW and FWW at the same amount, and denying TTDcompensation. The SHO order provides, In pertinent part, as follows:

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Pursuant to Ohio Revised Code Section 4127 04 the Staff Hearing Officer orders that Claimant's Full and AverageWeekly [zt19] Wages are set at $ 62.9D. Thls figure is based on the Ciaimant's public assistance receipts of $393.0D monthly divided by 4.5 weeks.

This decision is based on Claimant's 07/22/02 record from Ashtabufa County Department of Job & Family Services.

The Staff Hearing Officer finds that the Claimant was temporarify and totally disabled from 06/27/02 through10/01/02, inclusive. The Ciaimant retumed to work on or about 1D/02/02. This finding is based on Dr. Myers'D7/15/02 C-84 report. However, pursuant to Ohin Revised Code Section 4127.03 and 4127.06the Claimant is notentitled to temporary total compensation because the Claimant was not temporarily and totally disabied for greaterthan six months.

Thus, temporary total compensation is not payable from 06/27/02 through 10/01/D2, inciusive.

This order Is being placed pursuant to Dhio Revised Code Section 4127.D3 and 4127.D6.

[9P30] S. Beck appealed and the commission, by order mailed February 12, 2003, refused Beck's appeal.

[*P31] 7. On April 22, 20D3, Smith sustained an industrial Injury while employed [k*20] by Mahoning County. Smith's daimwas assigned claim number 03-8219D4, and was subsequently alluwed for: "sprain right knee."

[•P32] S. Pursuant to BWC order mailed October 1, 2003, Smith's AWW and FWW were both set at $ 30.89. The BWC basedIts ca{culations as follows:

The wages and compensation for PWRE dalms are set and paid differenUy that [sic] other claims. The amount ofwork relief payments the injured worker would have been entitled to for the calendar week that the injury occurred,is basis for computing compensatiqn rates.

[•P33] 9. In October 2003, Smith filed a C-86 motion requesting that his AWW be set at $ 221.44.

['P34] LO. Smith's motion was heard before a DHO on December 22, 2003. Based upon the Patterson mse, the DHO grantedSmith's motion and set his AWW at the requested amount, $ 221.44.

[tP35] 11. The BWC appealed and the matter was heard before an SHO on February 5, 20D4. The SHD affiinned the priorDHO order in full based upon the Patterson case.

[rP36] 12. The BWC and the employer, Mahoning County, flied appeals and the matter was set before the commission onApril 27, 2gD4. The commission vamted the prior [•*21] SHO order and determined that the BWC had correctly set Smith'sAWW at $ 30.89. The commission stated, in pertinent part, as follows:

The Industrial Commission denies the Injured worker's request to set the average weekly wage at $ 221.44 andfinds that the Bureau of Workers' Compensation correctly set the average weekly wage at $ 30.69 as indicated in itsorder dated 10/01/20D3. The Indusbial Commission bases this finding on R.C. 4127.04. which specifies the basis forthe computation of compensation benefits for a"work-relief empioyee" such as the injured worker In this claim. Thatstatutory section provides as follows:

HH12{The basis upon which compensation or benefits shall be computed, Is the amount of work-rellef which wouldhave been afforded to the injured person for the calendar week in which the Injury or death occurred. In no eventshall such compensation exceed the maximum reimbursement relief award established by the state which theclaimant would have been entitled to had he not been injured.

lfie Industrial Commission finds that the rellef that the injured worker was receiving for his work activity amountedtn $ 139.00 per month, [**22] or $ 30.89 for the week in which the 04/22/2003 Injury occurred. This finding isbased on the 06/05/2003 letter on file fmm Cathy Jones, the employer's Risk Manager, indicating that the injuredworker's work activlty qualified him for a $ 139.D0 monthly debit card for food. In additlon, the Commission relieson the calcwtation of the amount of weekly relief benefits set forth In the Bureau of Workers' Compensation Referralletter dated 10/27/2003. Accordingly, the Industrial Commission finds that the average weekly wage in this claimwas properly set at $ 30.89.

At hearing, the injured worker contended that the Ohio Supreme Court has struck down the benefit computationmethod set forth in R.C. 4127.04 as a violation of the Eoual Protection Clauses of both the Ohio and United StatesConstltutions, citing State ex rel Patterson v. Industrial Commissign (1996) . 77 Ohio St.3d 201 1996 Ohio 263672 N.E.Zd 10D6. The industrial Commission finds, however, that the facts in Patterson are distingulshable fromthose Involved in this rase. In Patterson, the Issue concemed the appiimtion of R.C. 4127.04 in the context of awidow-ctaimanCs ['•23] request for death benefits; in this case, the issue is the method of computation of therate for regular benefRs for the injured worker himself. The Commission finds this distinction significant for thereason that the express wording of the court's syllabus In Patterson indicates that the decision in the case is limitedto claims for benefits by the dependents of injured workers. As such, the Indusbial Commission finds that thehoiding In Patterson is inapplicable to the facts of this claim and that the Injured worker's average weekly wage wascorrectly set by the Bureau at $ 30.89.

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[*P37] 13. Thereafter, relators filed the instant mandamus action requesting that this court issue a writ of mandamusordering the commission to vacate Its orders and redetermine Beck and Smith's work-relief employee workers' compensation inconformity with the Supreme Court of Ohio's decision in Patterson.

Conclusions of Law:

[*P38] In this mandamus action, this court is being asked to determine whether the Supreme Court of Dhio's holding fromthe Patterson case applies to the facts of this rase and, if so, what the practical consequences are.

[*P39] The [**24] Patterson case involved a man who contracted hlstoplasmosis while In the course of his empioyment as awork-refief employee for the Guernsey County Welfare DepartmenL Mr. Patterson died in 1985 as a result of this disease.Patterson's widow filed an appiication for death benefits. The commfsslon awarded her a weekly death benefit of $ 33.11, thesame rate at which Mr. Patterson had received TTO compensation prior to his death. The widow filed a mandamus action in thiscase and this court concluded that R C 4123.59f Bl was not applicable and that the claim was governed by R c Chaoter 4127.As such, this court found that the commission propedy awarded her weekly beneflts In the amount of $ 33.11 pursuant to B-C,.4127.04. This court also rejected her equal protectlon argument, concluding that the General Assembly was justified indifferentiating between awards to dependents of deceased employees who received public assistance and dependents ofdeceased employees who receNed other employer paid wages.

[*P40] Ultfmately, the matter was heard before the Supreme Court of Ohlo and in a four to three decision, thePatterson [**25] court held as follows:

R C. 4127.04 unjustifiably.discriminates against dependents of work-relief employees by preventing suchdependents from receiving the same benefits as dependents of other empioyees whose death is caused by a work-related injury or disease. Therefore, R.C. 4127.D4 vio{ates the Equal Protection Clausrs of the QWe and UnitedStates Constitutions.

Id at svllabus.

[*P41] In reaching the above holding, the court noted:

H^'z r* **[T]he General Assembly, in enacling R C Chaoter 4127 and, particularly, R.C. 4127.D4. intended toestablish a separate method for determining benefits for work-relief employees and their dependents. ***[I]t isevident that the General Assembly intended that R.C. 4127.D4 be the appiicable statute when deterrnining awards to

work-relief employees and their dependents.

Id . at 203-204.

[*P42] Thereafter, the court went on to examine the constitutional claim and determined that the classification scheme ofR C 4127.D4. which treats dependents of work-reiief [**26] empioyees differently from dependents of non-work-reliefemployees, vioiates the Eoual Protectlon Clause of both the Oh]p and United States Constitutions. In reaching thisdetermination, the court specifically noted as foliows:

K^'i^+* **[L]aws are to operate equally upon persons who are identified in the same class.

Ohio's system of compensating employees and their dependents Is predicated upon Section 35 Article II of the OhioConstitution. This provision establishes that one objective of such a system Is to compensate "workmen and their

dependents, for death, Injuries or occupational disease, occasioned In the course of such workmen'semployment.' (Emphasis added.) Clearly, R.C. 4127.04 and 4123.59 were enacted to fulfill this objective ofcompensating employees and their dependents.

Id at 2D4-205.

Thereafter, the court made the following determination:

Appellant's decedent was a"work-relief employee" as defined in R.C. 4127.01fA1. and his death occurred as a resultof a disease contracted in the course of his employment Further, R.C. 4123 01fA1f11fa1 [**27] defines"employee" to Include '[e]very person in the service of the state, or of any county, municlpal corporation, township,or school district therein." Appellant's decedent was thus an "employee" for purposes of receivingcompensation due. See Indus Comm. v M[Wborfer f19341 129 Ohlo St. 40 193 N E 620 ***, syllabus.Notwlthstanding, appellant was awarded a weekly benefit of $ 33.11, as a dependent of a work-relief empioyee,which was far below the minimum benefit available to dependents of non-work-relief employees set forth In 3,C4123 59fB1.

Id. (Fn. omitted; emphasis added.)

[*P43] After having determined that R.C. 4127.04 created a separate classificetion of dependent persons based solely on the

status of the employee, the court went on to determine whether this disparate treatment was based upon any legitimategovemmental purpose. The court looked at the history of the Public Works Relief Compensation Act and noted as follows:

The Public Works Relief Compertsation Act (R.C. Chaoter 4127) was originally enacted as emergency Ieglslation"necessary for the immedlate preservation of the [**26] public peace, health and safety.' Sectlon 17,

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Am.Sub.H.B. No. 495, 116 Ohio Laws, Part I, 212, 217. Section 17 also provided that "[t]he reason for suchnecessity lies in the fact that it has become fmmedlately necessary to provide a sepacate system of compensationfor public work-relief employe[e]s and their dependents, due to the fact that considerations arise with respect to thehazards of empioyment and Injures of such empioye[e]s which do not apply to the other employ[e]s menFioned inthe workmen's compensation law of Ohio, and aiso because of the fact that this class of emptoyment was neitherforeseen nor contemplated by the legislature in originally framing the workmen's compensation law of Ohio, andthere has been accordingiy an unexpected increased burden placed upon the state insurance fund in compensatingsuch employe[e] out of that fund.' 116 Ohio Laws at 217-218.

Id, at 206.

[*P44] However, the court deterrnlned that y^'=s*conserving funds was not a viable basis for denying compensation to aperson entitled to such and that "it escapes us how the classifications created by R.C. 4127.04 tend to further the 'health,peace, morals, [**29] education or the good order of the people. Nor do the ctassifications Increase the Industry of the state,develop our resources, or add to the state's wealth or prosperity.' [State ex rel Dnersam v Indus Comm f19891 45 Ohio St.3d 115 121 543 N E 2d 1169."

[*P45] In her dissent, Justice Strdtton explained why she and Chief Justice Moyer determined that there was no equalprotection violation as folinws:

Ohio's workers' compensation system is designed to provide protection to the employee for work-refated injurieswithout relation to fauit. In retum, the employer Is protected from suits, but funds the system. Thousands of Ohiocompanies, large and small, contribute to provide the financial basis of workers' compensation. The cost and rlsksare spread broadly throughout the system, but those who benefit from the employee's work shoulder the burden ofits costs.

The work-relief system Is wholly dffferent In character and purpose. It Is a system of public works designed tosupplement welfare. It Is not funded by employers who benefd: from such work. Instead, It Is funded by thetaxpayer, as is the rest of the welfare system. Although the leglslature added [**3D] a workfare-relatedcompensation plan, the plan specifically related to the workfare and was an extension of welfare protection. It isdistinguished by statute from the employer-funded workers' compensation system.

The majority would not discard the entire system under an equal protection argument because appellant's decedentwas an "employee" and because cost should be no deterrent. But as Justice Cook pointed out, the equal protectionargument fails because the two systems are wholly unequal in purpose, character, and basis. The beneficiary of aworldare employee who dies as a resutt of a work-retated injury will now receive far greater benefits than theworkfare employee received when alive from a system funded by the taxpayer--an extended, increased welfarebenefit.

This is a decision that should not be made by the courts under the guise of "equal protection." There are enormouscosts assoclated with this dectsion. How wlll these new expenses be funded7 These are Issues that require debate,testlmony, studies, compromise-all part of the legislative process. We as a court are not equipped to play that role,as tempting and sympathetlc as the facts in this case are.

The [**31] reaiity Is that a workfare recipient is a wetfare recipient whereas a wage-eamer is supported by theOhio employers who fund the workers' compensation system. These employees are not simllarly situated. Equalprotection does not apply. Any such masslve changes in the compensation system are best left to the legistature.

Id, at 209-210. (Emphasis sic.)

[*P46] Retators assert that the Supreme Court of Ohio's holding In Patterson applies not only to dependents qf work-reliefempioyees, but to work-rellef employees themselves as well. The commission would have us confine the Supreme Court'shoiding solely to "dependenta" of work-relief employees and not to the work-relief employees themselves. However, becausethe Supreme Court conduded that Mr. Patterson himself was an 'employee' for purposes of receiving compensation due, thismaglstrate concludes ^_ *the Supreme Court did not Iimit Its holding simply to 'dependents' of work-relief employees butIncluded those "employees" themselves. As such, In spite of the magistrate's reservations about the Supreme Court's holding Inthe Patterson case, this magistrate nevertheless concludes that the hotding from [**321 Patterson applies here. As a result, itbecomes necessary to detennine the consequences of the holding from Patterson on the amount of TTD compensation payableto relators herein as well as payable to other work-retief employees.

[*P47] The payment ofTiD compensation Is governed by R. 4123.56 which provides, In pertinent part, as fo[lows:

(A) Except as provided in division (D) of this section, in the case of temporary disability, an employee shall receivesixtysix and two-thirds per cent of the employee's average weekly wage so long as such disability is tobl, not toexceed a maximum amount of weekly compensation which is equal to the statewide average weekly wage asdefined In division (C) of section 4123.62 of the Revised Code and not less than a minimum amount ofcompensation which Is equal to thirty-three and one-third per cent of the statewide average weekly wage as definedin division (C) of sec+ion 4123.62 of the Revised Code unless the employee's wage Is less than thiM1y-three and one-third per cent of the minimum statewide averdge weekly wage, in which event the employee [**33] shall receivecompensation equal to the employee's full wages; provided that for the first twelve weeks of total disability theemployee shall receive seventy-two per cent of the employee's full weekly wage, but not to exceed a maximumamount of weekly compensatlon which Is equal to the lesser of the statewide average weekly wage as defined indivislon (C) of section 4123.52 of the Revised Code or one hundred per cent of the employee's net take-homeweekly wage. * * *

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[*P48] As above-stated, pursuant to R.C. 4123.56, a worker who Is temporarily and totally disabled and whose eamings areless than one-third of the statewide minimum AWW recelves their FWW at the time of their injury.

[*P49] The record reveals that Beck's weekly wage was $ B2.9D. The commission has submitted evidence that, In 2D02, theyear of Beck's Injury, the statewide minimum AWW was $ 209.33. One-third of that amount would be $ 69.71. As such, Beckwas making less than one-third of this amount. Smith's weekly wage was $ 30.B9. The commission has submitted evidencethat, In 2DD3, the year of Smith's injury, the statewide minimum AWW was $ 214.67. [**34] One-third of that amount fs $71.55. Based upon the above-quoted portlon of R C 4123.56(A). where an °empioyee's wage is less than thirty-three and one-third per cenf: of the minimum statewide average weekly wage, * * * the employee shall receive compensation equal to theemployee's full wages." The magistrate also finds that this calculation would comport with R.C. 4127.06 which provides:

During perlods of temporary disability * * * an injured work-relief employee shall be paid directly out of the fundfrom which the employee was receNing relief, the amounts required to meet the budgetary needs of the employeeand his dependents, and in the manner determined by the person or agency having control over or supervision ofthe fund.

[*P50] Having found that the court's decision In Patterson would apply to the facts of this case because of the court'semphasis on the definition of'employee; the magistrate finds that relators have established that the commission abused Ftsdiscretion and that refators should be paid TTD compensation in the amount of their full weekly wages for the time during theirdisability.

[**35] [*P51] Relators have also asked that this court cert)fy this matter as a class action. Relators describe the proposedclass as follows:

44. The class is defined as all Injured work-relief employees with open and active cases who were or are eligible toreceive temporary total disability benefrts and other benefits through the Bureau of Workers' Compensation and whowere awarded benefits, but not in the full amount due to them berause they were raiculated in accordance with RC.5 4127.04. which is unconstitutional as determined by the Ohio Supreme Court in Patterson.

Complaint, at B.

[*PS2] Civ.R. 23(A) states:

One or more members of a dass may sue or be sued as representative partles on behalf of all only if (1) the class isso numerous that joinder of all members is lmptactirable, (2) there are questions of law or fact common to theclass, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and(4) the representative parties will fairly and adequately protect the interests of the class.

[*1253] Civ.R. 23(B) [**36] states:

An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition:

(1) the prosecution of separate acUons by or against Individual members of the class wouid create a risk of

(a) Inconslstent or varying adjudications with respect to Individual members of the class which would establishincompatible standards of conduct for the party opposing the class; or

(b) adjudications with respect to individual members of the class which would as a practical matter be dispositive ofthe interests of the other members not parties to the adjudlratfons or substantially impair or Impede their ability toprotect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applirable to the class, therebymaking approprlate final injunctive relief or con'esponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over anyquestions affecting only lndividual members, and that a ciass action Es superior to other available methods for thefair and efficient adjudication [**37] of the controversy. The matters pertinent to the findings include: (a) theinterest of inembers of the class in indNldually controlling the prosecution or defense of separate actions; (b) theextent and nature of any litigation conceming the controversy already commenced by or against members of theclass; (c) the desirabllity or undesirability of concentrating the litigation of the claims in the particular forum; (d) thediffioilties likely to be encountered in the management of a class action.

[►P54] A trial judge must make seven affirmative findings before a case may be certified as a class adion. Two prerequisitesare implicitly required by CN R 23 while five others are specifically set forth therein. Wamer v. Waste Manaoement. Inc(1968) 36 Ohio St 3d 91 521 N E 2d 1091, oaraoranh one of the syllabus.

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[*P55] The following seven requireinents must be satisfied before an action may be maintained as a class action under Clv_R23: (1) an identiflable class must exist and the definition of the class must be unambiguous; (2) the named representativesmust be members of the class; (3) the class must be so numerous that [**38] joinder of all membera is impracticable; (4)there must be questions of law or fact common to the class; (5) the ciaims or defenses of the representative parties must betypical of the c{aims or defenses of the class; (6) the representative parties must fairly and adequately protect the Interests ofthe class; and (7) one of the three Civ.R. 23fB1 requirements must be met. Hamilton v Ohio Sav Rank f19961 B2 Ohio St.3d67 711996 OhIo 365 694 N E 2d 442.

[*P56] This court must determine whether relators have met the seven requirements by a preponderance of the evidence.Wamer. at 94. The burden of estabiishing that a case may appropriately be treated as a class action rests upon the party orparties bringing suit. Burre/l v. SolBemman Estate lewelers Inc. (1991). 77 Ohlo ADD.3d 766 771 603 N E 7d 1059.

[*P57] The magistrate finds that relators have met the requirements by a preponderance of the evidence. The class Is clearlyidentifiable, the named representatives are members of the class, at approximately 45, the class Is numerous enough to makejoinders impractical, there are questions of law common to the ciass, the claims/defenses of the representative [**39] arecommon to those of the class, the representative parties can and are fairly and adequately protecting the intensity of the class,and the prosecution of separate actions by the individual members creates a risk of Inconsistent adjudications. As such, thlsmatter should be certified as a class action.

[*P58] Based on the fnregoing, It Is the magistrate's dectsion that this matter be certtfied as a ciass actfon and that relatorshave established that the commission abused its discretion. A writ of mandamus should issue ordering respondent commisslonto pay retators TTD compensation at their full weekly wage.

/s/ Stephanie Bisra Brvoks

STEPHANIE BISCA BRODKS

MAGISTRATE

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IN THE TENTH DISTRICT COURT OF APPEALSFRANKLIN COUNTY, OHIO

The State, ex rel.William Beck, et al., on behalf ofhimself and all other similarly situated,

Relators,

V.

Industrial Commission of Ohio, et al.,

Respondents.

Case No.: 04AP-1094(Regular Calendar)

Ma,gistrate Stephanie Bisca Brooks

REI,ATORS' BRIEF ON THE MBRITS

Judith B. GoldsteinKimberly M SkaggsEQUAL JUSTICE FOUNDATION88 East Broad Street, Suite 1590Columbus, Ohio 43215P:(614)221-9800F: (614) 221-9810 -9 aoldstein(a2eaualiusticefoundation. com1ms n,egaaliusticefovndation.com

C7William J. McDoaaldAssistant Attomey GenejWWorkers' Compensatio

CD

150 East Gay Street, 229,Fl.Columbus; Obio 43215-3130P: (614) 466-6696F: (614) 752-2538W mcD onald(a)a2. state. oh. us

Counsel for Relators Counsel for Respondents

19

TABLE OF CONTENTS

TABLE OF AUTHORTTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT IN SUPPORT OF ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . I

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND STATEMENT OF THE FACTS . . . . . . . . . ... . . . . 1

A. LEGAL FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Workers' Compensation System Overview . . . . . . . . . . . . . . . . . . . . . . 2

2. The Industrial Commission And The Bureau of Workers'Compensation ............................................ 2

3. The Hearing And Appeal Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4. Eligibility For Receipt Of Workers' Compensation . . . . . . . . . . . . . . . 4

5. Work-Relief Employees . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 5

B. THE PATTERSON CASE . . . . . . . . . . . . . . . . . •. . : . .. . . . . . . . . . . . . . . 5

C. WII,LIAdvIBECIC ............................................ 7

D. BRUCE SMITfi............................................... 11

SUNIIvLARY OF REI,ATORS' ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . 15

ARGUMENT ................ .................... ..................... ... 17

L THE OHIO SUPREME COURT'S DECISION IN STATE EX REL.PATTERSON V. INDUSTRIAL.COM1vQSSION OF OHIO, DECLAREDR.C. § 4127.04, THE STATUTE UPON WHICH WORK-RELIEFEMPLOYEES' CONIPENSATION AND BENEFITS ARE COMPUTED,UNCONSTTTUTIONAL AS APPLIED TO WORK-RELIEF EMPLOYEESAND TFBIR DEPENDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

i

20

THE DOCTRINE OF STARE DECISIS DICTATES THAT THEINDUSTRTAL COMMISSION AND THE BUREAU OF WORKERS'COMPENSATION MUST FOLLO'VJ PAT7'ERSONAND REFRAATFROM APPLYING R.C. § 4127.04 WHEN CALCULATINGWORK-RELIEF EMPLOYEES' COMPENSATION AND BENEFITS ....... . 19

THE BUREAU OF WORKERS' COMPENSATION AND THEINDUSTRIAL COMMISSION IMPROPEI2I.Y APPLIED R.C. § 4127.04TO DETERMINE WILLL4M BECK AND BRUCE SMITH'S WORK-RELIEF EMPLOYEE WORKERS' COMPENSATION AND BENEFITS..... 21

IV. A CLASS SHOULD BE CERTIFIED IN ACCORDANCE WITHCIVIL RULE 23(A) AND 23(B)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CI.ASS DEFINTTION .............................................. 28

CLASS MEMBERSIiIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

IMPRACTICALiTY OF JOINDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

COMMONALITY ................................................. 30

TYPICALTTY ....................................... :.............. 31

ADEQUACY OF REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

RULE 23(B)(2) CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

V. CONCLUSION ... ................................................ 33

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . 35

ADDENDUM

ii

21

TABLE OF ATJTHORTTIES

CASE PAGE

Baughmari v. State Farm Ins. Co. (2000), 88 Ohio St 3d 480 . . . . . . . . . . . . . . . 26,28,31

Begala v. PNCBank, No. G990033, 1999 Ohio App. LEXIS 6331(1"Dist Dec. 30, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cobbett v. Human Development & CounselingAssoc., Inc.,No. CA-6711, 1985 Ohio App. LEXIS 9961 (5 6 Dist Dec. 23, 1985) ........ 27,30

Cope v. Metro Life Ins. Co. (1998), 82 Ohio St 3d 426 . . . . . . . . . . . . . . . . . . . . . 5

Cubberly v. Chrysler Corp. (1981), 70 Ohio App. 3d 263 . . . . . . . . . . . . . . . . . . . 27

Curry v. Shell Oil, Inc. (1996), 112 Ohio App. 3d 312. . .': . . . . . . . . . . . . . . . . . 27

Desario v. Industrial Excess Landfill (1991), 68 Ohio App. 3d 117 ........... 31

Donohoe v. Industrial Commission, No. 105, 1940 Ohio App. LEXIS 1206(2ndDist Apri130,1940) ........................................... 20

Hamilton v. Ohio Savings Bank (1988), 82 Ohio St 3d 67 . . . . . . . . . . . . . . . . . 27,28,29,30,31,33

Marks v. C.P. Chemical Co., Inc. (1987), 31 Ohio St 3d 200 . . . . . . . . . . . . . . . . 29

Nichols v. Gregory (1935), 130 Ohio St 165 . . . . . . . . . . . . . . . . : . . . . . . . . . . . 5

Ojalvo v. Board of Trustees of Ohio State Univ. (1984), 12 Ohio St. 3d 230 .... 26

Plaizned Parenthood Assoc. of Cincinnati, Inc. v. Project Jericho (1990), .52 Ohio St 3d 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . 31,

Pyles v. Johnson (2001), 143 Ohio App. 3d 720 . . . . . . . . . . . . . . . . . . : . . . . . . . 31

Shaver v. Standard Oil Co. (1993), 89 Ohio App. 3d 52 . . . . . . . . . . . . . . . . . . . . 29

Shoemaker v. City of Cincinnati (1903), 68 Ohio St 603 . . . . . . . . . . . . . . . . . . 20

Sprague v. General Motors Corp.(6th Cir. 1998), 133 F. 3d 388 ............. 27

22

State ex re1. Attorney General v. Hoglan (1901), 64 Ohio St 3d 532 ......... 16State ex rel. Burrows v. Industrial Commission (1997), 78 Ohio St 3d 78 ..:.. 3

State ex rel. Cookv. Zimpher (1983), 11 Ohio App. 3d 187 . . . . . . . . . . . . . . . . . . 1

State ex rel. Crabtree v. Franklin County Bd. ofHealth (1997),77 Obio St 3d 247 ................................................ 16

State ex rel. Gassman v. Industrial Commission (1929), 12 Ohio St 41 ..... 16

State ex re1. Gay v. Mihrn (1994), 68 Ohio St 3d 315 . . . . . . . ... . . . . . . . . . . . . . 16,20,23,26,34

State ex rel. Hodges v. Taft(1992), 64 Ohio St 3d I . . . . . . . . . . . . . . . . . . . . . . . 15

State ex rel. Hughes v. Indurtrial Commission (1982), 1 Ohio St 3d 57 ........ 15

State ez rel. Lyons v. Zaleski (1996), 75 Ohio St 3d 623 . . . . . . . . . . . . . . . . . . . . 16

State ex rel. Menough v. Indu.strial Comin.ission, No. 01-AF-1031,2002 Ohio App. LEXIS 3288 (10's Dist June 25, 2002) . . . . . . . . . . . . . . . . . . . . . 17

State ex re1. Noll v. Industrial Commission (1991), 57 Ohio St. 3d 203 ......... 20

State ex rel. Patterson v. Industrial Commission (1996), 77 Ohio St. 3d 201 ..... 1,2,5,6,12,14,15,17,18,19,20,21,23,24,26,28,29,30,32,33

State ex reL Smith v. Industrial Commission (1986), 26 Ohio St 3d 128 .....

State ex r-el. Walker v. Lancaster City School Dist. Bd ofEduc. (1997),79 Oh.io St 3d 216 .....:.........................................

State ex rel. Zito v. Indusirial Commission (1980), 64 Ohio St 2d 53 .......

State v. Ross, No. 20980,2002 Ohio App. LEX[S 7161 (9' Dist Dec. 31, 2002) . . . . . . .. . . . . . . . . . . . .

Walther v. Pension Plan (S. D. Ohio 1994), 880 F. Supp. 1170 . . . . . . . . .. . . .

Wampler v. Higgins(2001), 93 Ohio St 3d 111 . . . . . . . . . . . . . . . . . . . . . . . . .

Wilson v. First Federal Savings and Loan Assoc. of Canton, No. CA-6481,1985 Ohio App. LEXIS 6116 (5'h Dist Feb. 15, 1985) . . . . . . . . . . . . . . . . . . .

iv

15

16

16

. . 17

. . 27

. . 20

. . . 27,30

23.

Zahnke v. Blaushild Chevrolet Inc., No. 45696, 1983 Ohio App. LEX15 15332(8m Dist. Sept 15, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,32,33

STATUTES PAGE

RC.§ 2731.02 .................................................... 1,29

RC.§ 4121.10 .................................................... 3

RC.§ 4121.32(A) .................................................. 2

RC.§4123.01(A)(1) .:............................................. 4

RC.§4123.35 .................................................... 2,4

RC.§ 4123.39(B) ................................................... 3

RC.§ 4123.54 ................:..................................... 4

R.C.§ 4123.56 ..................................................... 8,21

RC.§ 4123.590) ...:.............................................. 6

R.C.§ 4123.511(B)(3) .............................................. 4

RC.§ 4123.511(C) ................................................. 4

R.C.§ 4123.511(D).................................................. 5

RC.§4123.61 ..................................................... 8,12,21,24

RC.4124.61 ..................................................... 12

RC.§ 4127.01(B) .................................................. 5

RC.§ 4127.03 .................................................... 10,22,23

R.C. § 4127.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6,7, 8,9,13,14,15,17,18,19,21,22,23,24,26,29,30,32,33

R.C.§4127.06 .................................................... 10,22,23,24

RC.§4127.07 .................................................... 5

v

24

R.C. 4127.13 .................................................... 5

RC. 4127.14 .................................................... 5

OTHER PAGE

Ohio Constitation, Section 35, Article II . . . . . . . . . . : . . . . . . . . . . . . . : . . . . . . 18

Ohio 12nle of Civil Procedure 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,27,30,31,32,33

vi

25

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Relators believe that oral argument will assist the Court by providing answers to any

questions that the Court may have.

JURISDICTIONAL STATEMENT

This Court has original jurisdiction over Relators' claims pursnant to R.C. § 2731.02

because the issues presented are of great importance and interest to the public and necessitate

immediate and extraordinary relief. See State ex rel. Cookv. Zfmpher (1983), 11 Ohio App. 3d

187 (proper venue for a mandamus action against the lndustrial Commission lies exclusively in

Franklin County). Relators are parties beneficially interested in accordance with R.C. § 2731.02

as they are citizens of Ohio with open and active cases who are eligible to receive temporary total

disability benefits through the Bureau of Workers' Compeasation and who were awarded

benefits, but not in the full amovnt due to them because they were calculated in accordance with

R.C. § 4127.04, which is unconstitutional and in direct contravention to the Ohio Supreme

Court's holding in State ex rel. Patterson v. Indusfrial Commfssion (1996), 77 Ohio St 3d 201.

Respondent Induslrial Commission is under a clear legal duty to resolve disputed workers'

compensation claims in a timely, efficient and impartial manner. Respondents Bureau of

Workers' Compensation and James Conrad are under a clear legal duty to administer the

workers' compensation system. Relators have no plain and adequate remedy at law and cannot

appeal from the final order of the Industrial Commission.

STATEMENT OF THE CASE AND STATEMENT OF THE FACTS

Relators, VTilliam Beck and Bruce Smith, bring this action on behalf of themselves and

all others similarly situated, to require Respondents Industrial Commission of Ohio, Ohio Bureau

of Workers' Compensation and James Conrad to determine, award and pay compensation and

26

benefits ("compensati.on benefits") to all past and present work-relief employees in accordance

with the United States Constitufion, the Ohio Constitution and the Ohio Supreme Court's ruling

in State ex rel. Patterson v. Industrfal Cornmission (1996), 77 Ohio St 3d 201. In addition,

Relators seek fnli and proper calculation and payment of all benefits due and owing.

A. LEGAL FRAMEWORK

1. Workers' Compensation Svstem Overview

The purpose of the workers' compensation system is to provide a speedy and inexpensive

remedy to workers injured in the course of their employment or to their dependents in case of

death. The workers' compensation system is designed to manage the compeasation of

individuals who suffer physical injuries or contract occupational diseases on the job. The

workers' compensation statotes, collectively known as the Workers' Compensation Act, are set

forth in Chapters 4121 through 4127 of'fhe Ohio Revised Code. The Ohio Constitution compels

employers, othet than those granted self-insured statns, to contribute to a state fimd for

compensation to workers or their dependents. See R.C. § 4123.35.

2. The Tndustrfal Commission And'The Bureau of Workers'Compensation

Two separate agencies admTnister Ohio's workers' compensation system - the Industdal

Commission of Ohio (the "Commission") and the Ohio Bureau of Workers' Compensation

(`BWC"). The Tndushial Commission is vested with the authority to formulate policies and

standards for administering the Workers' Compensation Act The nature and extent of its power

is defined in Chapter 4121 of the Ohio Revised Code. See R.C. § 4121.32(A). The Industrial

Commission's functions and duties include the keeping of a public record showing its

2

27

proceedings, findings and awards and explaining the reasons for the allowance or rej ection of

each compensation claim presented for its consideration. See RC. § 4121.10. The Industrial

Commission has the authority to determ.ine all rigbts of claimants under the Workers'

Compensation Act, including the interpretation of statutes governing eligibility for benefits.

Additionally, the lndusirial Commission is the exclusive evaluator of evidentiary weight and

disability in a workers' compensatioii case. The Supreme Court is not required, however, to

defer to a poliey statement and guideline issued by the Industrial Commission which contravenes

the express language of the Workers' Compensation Act See State ex reL Burrows v. Indusirial

Commission (1997), 78 Ohio St 3d 78, opinion corrected on reconsideration on other grounds,

(1997), 78 Ohio St 3d 1505.

Alternatively, the BWC is responsible for collecting workers' cpmpensation insurance

premiums; overseeing the insurance system, awarding compensation and making payments on all

noncontested claims. See RC. § 4121.39(B). The BWC gives way to the Industrial Commission

when a party contests an award, necessitating a weighing of evidence and a judgment, and the

BWC makes the payment based upon the lndustrial Commission's judgments.

3. The Hearina And Appeal Process

The BWC is administered by the Administrator who reviews and processes all

applications for claims, awards compensation on noncontested claim.s and makes payment on

orders of the Industrial Commission and district and staff hearing officers. District hearing.

officers are employed by the Industrial Commission and have original juri.sdiction on

determinations under the statute dealing with pattial disability compensation, on all appeals from

a decision of the Admiziistrator, and on all other contested claims matters under the Workers'

3

28

Compensation Act, except those matters over which staff hearing officers have original

jurisdiction. Staffhearing officers are employed by the Industrial Commission and have original

jnrisdicfion to hear and decide applications for permanent total disability awards, appeals from an

order of a district hearing officer, applications for additional awards for violation of a specific •

safety rule of the Administrator, applications for reconsideration, and reviews of seitlement

agreements. The decision of a staffhearing officer is the decision of the Industrial Commission

for purposes of taking an appeal to the court of common pleas unless the Commission hears the

appeal See RC. § 4121.35.

4. EliQibilitv For Receint Of Workers' Comoensation

Disability benefits for such injuries or diseases that are compensable under the law are

payable to those persons who come within the statutory defnition of the term "employee:" See

R.C. § 4123.01(A)(1). Before the amovnt of compensation can be determined there must be an

initial determination as to whether a person should be permitted to participate in the

compensation fund at all. Compensation is payable to an employee who is injured or who

contracts an occupational disease and the employee's dependents in case of death, where such

injury occurs or the disease is contracted in the conrse of employment. See RC. § 4123.54.

If an employer or claimant timely appeals the Administrator's order granting or denying

the payment of the compensation or benefits, the Industrial Commission shall refer the claim to

ari appropriate district hearing officer within seven days of the appeal. See RC. § 4123.511(C).

The district hearing officer shall hold a hearing on a disputedissue or claim within forty-five

days after the filing of the appeal and issue a decision witlun seven days after holding the

hearing. See RC. § 4123.511(B)(3). Upon the timely filing of an appeal of the order of the

4

29

district heating officer, the Commission will refer the claim $le to an appropriate staff hearing

officer. See R.C. § 4123.511(D). Upon the filing of a timely appeal of the order of the staff

hearing officer, the Commission shall deteimine whether it will hear the appeal. Ohio's courts of

appeal have jurisdiction to issue a Mandamus against the Tndusirial Commission. See Nichols v.

C}regory (1935),130 Ohio St. 165.

5. Work-Relief Emolovees

The provisions of the Workers' Compensation Act apply to all work-relief employees

who are injured and to the dependents of such as are killed. See R.C. § 4127.13 and 4123.14.

A`work-relief employee" is any person engaged in any public relief employment and receiving

work retief^ who is under the supervision and control of any employer or any agency of such

employer. See R C. § 4127.01(B). "Work relief' means public relief given in the form o f public

funds or goods, on the basis of the budgetary needs of the work-relief employee and such

employee's dependents, in exchange for any service of labor rendered on or in connection with

any public relief employment. See R.C. § 4127.01(B). Bvery employer, as defined in R.C. §

4127.01(C), must contribute to the public work-relief employees' compensation fund. See R.C.

4127.07.

B. THE PATTERSON CASE

On I)ecember 24, 1996, the Obio Supreme Court determined State ex rel. Patterson v.

Industrial Commission (1996), 77 Ohio St. 3d 201. Tn that case, Patterson, a work-relief

employee, contracted histoplasmosis at work Patterson filed a workers' compensation claim and

was awarded temporary total disability compensation. Patterson died in 1985 as a result of the

disease.

5

30

Thereafter, Patterson's widow filed an application for death benefits. A district hearing

officer for the Industrial Commission granted the claim and awarded P atterson's widow a weekly

death benefit of $33.11, based on R.C. § 4127.04, the same rate at which Patterson had received

temporary total disability compensation prior to his deatli Patterson's widow appealed the

amount of the award to the regional board of review. The board af(imied the hearing offlcer's

order. Patterson's widow forther contested the amount of the award, but it was ultimately

administratively affi.rmed. As a resnlt, Patterson's widow filed a complaint in mandamus in the

court of appeals, .claiming that the Commission abused its discretion in awarding her death

benefits below the mtnimum set forth in R.C. § 4123.59(B). The Court of Appeals denied the

writ and, therefore, Patterson's widow appealed to the Ohio Supreme Court who reversed the

Court of Appeals' decision and granted the writ

The Supreme Covrt held that R.C. § 4127.04 unjustifiably discrim.inates against

dependents of worke relief employees by preventing such dependents from receiving the same

benefits as dependents of other employees whose death is caused by a work-related injury or

disease. See fd. at 208. Thus, the Court held that R.C. § 4127.04 violates the Equa1 Protection

cla.uses of the Ohio and United States Constitntions. See id. at 207. Therefore, work-relief

employees and non-work-relief employees must be treated similarly to the extent of

compensation benefits and R.C. § 4127.04 cannot be applied to determine benefits. In short, the

Ohio Supreme Court held that the BWC and the Industrial Commission must not apply R.C. §

4127.04 in determTn4ng, awarding and paying compensation benefits to work-relief employees.

Accordingly, beginning on or before December 24, 1996, Respondents have at all times

had a clear legal duty to public work-relief employees to compensate tham in accordance with

6

31

R.C. § 4123, as set forth in Patterson. At all times relevant, Respondents knew or should have

known that it was unconstitutional to apply R.C. § 4127.04 to determine, award and pay work-

relief employee workers' compensation benefits. Respondents, however, have applied and

continue to apply R.C. § 4127.04 to work-relief claimants, argiti.ng that Patierson only applies to

dependents in death benefit cases. As a result, Respondents continue to miscalculate benefits and

unlawfully apply R.C. § 4127.04 to work-relief employee compensation caces. Respondents

have failed to perform their clear, legal, non-discretionary duty to assure that all work-relief

employees receive benefits in the same manner as non-work relief employees and to ensure that

R.C. § 4127.04 is not applied in detrrmining, awarding and paying work-relief employee

workers' compensation benefits. Respondents' failure to properly compute benefits is wanton,

arbitrary and reckless in clear disregard of Relators' legal rights and in violation of the laws on

which those rights are based. Respondents abused their discretion by entering and affrming

orders that are not supported by any evidence in the record and that are contrary to the law.

C. VdILLL4M BECK I

On June 26, 2002, while working as a laborer at Geneva-on-the-Lake as a publ'rc work-

relief employee ("PWRE"), William Beck was attacked by bees causing him to jump off a truck

and break his leg. (Stipulated Evidence ("S.E.") page 4, Physician Claim Form). On July 2,

2002, Mr. Beck filed a claim for Workers' Compensation with the Bureau of Workers'

Compensation (`°BWC"), which assigned claim number 02-384475. (S.E. 11, July 17, 2002 BWC

Order). On July 16, 2002, the Ashtabula County Department of Job and Family Services

(ACDJFS"), as employer, rejected Mr. Beck's claim for Worker's Compensation. (S.E. 9,

Medical Claim Form/Rejection). On July 17, 2002, the BWC issued an order recognizing Mr.

7

32

Beck's claim for a fractured right tibia, "leg," and stated that benefits will be paid from the public

fv.nds until they are exhausted or the period of disability is continuous beyond six months. (S.E.

10, Employer Me(lical Claim Foim/CerEification). On July 22, 2002, the Director of ACDJFS

certified Mr. Beck's claim, thereby, agreeing that all the information on the BWC's Claim

Information Report was correct

On September 27, 2002, Mr. Beck filed a C-86 Motion requesting that his average weekly

wage ("AW W') be set at $248.37 per week, utilizing the 104-week method (2000 wages + 2001

wages divided by 104). See R.C. § 4123.61. In accordance with R.C. § 4123.56, Mr. Beck also

requested the BWC pay temporary total disability compensation from June 26, 2002, and

continuing pursuant to R.C. § 4123.56 until the date he was uo longer temporarily disabled. (S.E.

13, September 27, 2002 C-86 Motion). On October 21, 2002, the BWC referred Mr. Beck's

motion to the Industrial Commission. In direct contravention to Patterson, the BWC stated, in

accordance with R.C. § 4127.04, that "[t]he wages and compensation for PVJRE claims are set

and paid differently than other claims. The amdunt of work relief payments the injured worker

would have been entitled to for the calendar week that the injuwy occurred, is the basis for

computing compensation rates. Therefore, BWC request (sic) denial to the injured workers

methods of setting wages." (S.E. 15, October 21, 2002 Notice of Referral to IC).

On November 20, 2002, a District Hearing Officer ("DHO") hearing was held before

District Hearing Officer Jim Bartko who issued an Order on November 23, 2002. (S.E. 19, DHO

Bartko Order Mailed November 23, 2002). DHO Bartko issued a "corrected order" on

November 29, 2002, holding:

a. Pursuant to Ohio Revised Code 4127.04, the claimant's Average Weekly Wage

8

33

and Full Weekly Wage are set at $82.90. This is based on the claimant's public

assistance receipts of $393.00 montbly divide(i by 4.5;

b. Temporary Total Compensation is ordered paid from 06/27/2002 through

10/01/2002. The claimant returned to work on or about 10/02/2002• This is

based on the 07/15/2002 C-84 completed by Dr. Myers.

c. Please pay temporary total compensation in accord with ORC 4127.03 which

governs the payment of compensation,in public works.

(S.E. 23, DHO Bartko Corrected Order Mailed November 29, 2002). DHO Bartko's Order was

in direct contravention to Patterson's holding that R.C. § 4127.04 is unconstitutional.

On December 3, 2002, Mr. Beck appealed the DHO Order to the Industri.al Commission's

Staff Hearing Officer ("SHO"). (S.E. 27, IC-12 December 3, 2002 Notice of Appeal). On

January 17, 2003, a hearing was held before Staff Hearing Officer Debra J. McKinney who

modified the DHO Order on January 22, 2003, holding:

a Pursuant to Ohio Revised Code Section 4127.04, the Staff Hearing Officer orders

that Claimant's Full and Average Weekly Wages are set at $82.90. This figure is

based on the Claimant's public assistance receipts of $393_00 monthly divided by

.4.5 weeks.

b. This decision is based on Claimant's 7/22/02 record from Ashtabula County

Department of Job & Family Services.

c. The Staff bearing Officer finds that the Claimant was temporarily and totally

disabled from 6/27/02 through 10/01/02, inclusive. The Claimant returned to

work on or about 10/02/02. This finding is based on Dr. Myers' 07/15/02 C-84

9

34

report.

d. The Claimant is not entitled to temporary total compensation because the

Claimant was not temporarily and totally disabled for greater than six months.

Thus, temporary total compensation is not payable from 06/27/02 through

10/01/02, inclusive.

e. This order is being placed pursuant to Ohio Revised Code Section 4127.03 and

4127.06. •

(S.E. 28, SHO MclCinney Order Mailed January 28, 2003). Not only was SHO McKinney's

Order in direct contcavention to Patterson's holding that R.C. § 4127.04 is unconstitutional, but

also it was in diraot contravention to R.C. § 4127.06, which provides "[d]uring periods of

temporary disability and partial disability... an injured work-relief employee shall be paid

directly out of the fund from which the employee was receiving relief.... When all of the fund

for relief purposes which are available to any eniployer are exhausted, or when disability as a

result of the injury is continuous beyond a period of six months, the injured work-relief employee

shall be compensated for temporary and parfial disability out of the public work-relief

employees' compensation fund by the bureau of worker's compensation in the same manner and

amount as is providedin section 4127.01 to 4127.14 ofthe Revised Code for other disabilities."

RC. § 4127.06 (emphasis added). Thus, Mr. Beck's compensation was unconstitutionally

caloulated in accordance with RC. § 4127.04 and the SHO wrongfiilly held that temporary total

compensation was not payable to Mr. Beck

Mt. Beck appealed the 5H0 Order to the Industrial Commission. (S.E. 32, IC-12 January

31, 2002 Notice of Appeal). On February 10, 2003, the Industrial Commission declined to hear

10

35

the appeal. (S.E. 33, IC Claim Refusal Mailed February 12, 2003). As a result, on February 13,

2003, the BWC seat Mr. Beck a letter informing him that his temporary total compensation had

been overpaid in the amonnt of $1,148.76, and that the BWC intended to collect that amount.

(S.E. 37, Febru.ary 13, 2003 Notice of Overpayment Letter).

D. BRUCE SMTTH

On Apri122, 2003, Brvice Smith suffered a right knee sprain and strain and a tear of the

right lateral meniscus at work while employed by Mahoning County through tbe PWRE program,

affording him eligibility for worker's compensation. (S.E. 53, First Report of an Injury). Soon

thereafter, Mr. Smith filed a claim for Workers' Compensation with the Bureau of Workers'

Compensation (`BWC"), which assigned claim number 03-821904. (S.E. 54, May 20, 2003

BWC Order). On October 1, 2003, the BWC Administrator issued an ord(IIr recognizing Mr.

Smith's claim for a right knee sprain and sirain and tear of the right lateral meniscus and set Mr.

Smith's full weekly wage ("FW W') at $30.89 and his average weekly wage ("AW W") at $30.89.

The Administrator found that wages and compensation for PW.RE claims are sat and paid

differently than non-PWRE workers' compensation claims. Therefore, the Administrator

calculated Mr. Smith's AWW based on the work relief payments W. Smith would have received

during the week of the injury, in other words, in accordance with R.C. § 4127.04. (S.E. 64, BWC

Order Mailed October 1, 2003).

On October 22, 2003, Mr. Smith $led a C-86 Motion requesting thai his average weekly

wage be set at $221.44 per week (S.E. 68, C-86 Motion October 16, 2003). On December 22,

2003, District Hearing Officer John D. Gibbons overrvled the Administrator's decision and set

Mr. Smith's AWW at $221.44, holding:

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36

a. The figure is artived at by dividing the injured worker's eainin?s dining the year

prior to the date of injury [in accordance with R.C. § 4123.61] by 14. Thirly-eight

weeks are deleted from the calculation, as the injured worker was unemployed but

looking for work. ($3,100.11 divided by 14 = $221.44).

b. The District Hearing Office= finds that tbe calculation used by the Bureau of

Workers' Compensation in setting the average weekly wage was improper.

c. The District Hearing Officer reIies on State ex rel. Patterson v. Industrial

Commission, 77 Ohio State 3d 201.

(S.E: 76, Signed DHO Czibbo.ns Order Mailed December 24, 2003).

On January 2, 2004, the BWC appealed the DHO Order to the Industrial Commission's

Staff Hearing d'ff cer (SHO). (S.E. 78, IC Online Appeal Filed by BWC on January 2, 2004).

Staff Hearing Officer Dwayne Bodzenta affimed the DHO's decision and granted Mr. Smith's

C-86 Motion, holding:

a. It is the finding of the Staff Hearing Officer that based upon wage documentation

on f le, and pursuant to Ohio Revised Code 4124.61 as well as aIl applicable Obio

Case Law on file, claimant's average weekly wage is set at $221.44 based upon

total waoes eamed $3,100.11 divided by 14 weeks worked, as 38 weeks were

excluded as there were weeks claimant was unemployed and looking for work and

therefore due to circumstances beyond his control.

b. Prior compensation to be adjusted accordingly.

c. This order is based upon wage documentation on file as well as Ohio Case Law

State ex rel. Patterson v. Industrial Commission. 77 Ohio St. 3d 201,

12

37

(S.E. 80, SHO Bodzenta Order Mailed February 10, 2004).

On February 24, 2004, the employer and the Administrator appealed the SHO's decision

to the Indusirial Commission. (S.E. 91, IC-12 Notice of Appeal February 25, 2004). On April

27, 2004, the Industrial Commi.ssion dismissed the Administrator's appeal, granted the

employer's appeal, vacated the SHO's decision and denied Mr. Smith's C-86 Motion, holding:

a_ The Industrial Commission denies the injured worker's request to set the average

weekly wage at $221.44 and finds that the Bureau of Workers' Compensation

correctly set the average weekly wage at $30.89 as indicated in its order dated

10/0112003.

b. The Industrial Commission bases this finding on RC. § 4127.04, which specifies

the basis for computation of compensation benefits for a"worle relief employee"

such as the injured worker in this claim. The statntory section provides as

follows: The basis upon which compensation or benefits shall be computed, is the

amount of work-relief which would have been afforded to the injured person for

the calendar week in which the injury or death occurred. In no event shall such

compensation exceed the maximum reimbursement.relief award established by

the state which the claimant would have been entitled to had he not been injured.

c. The Industrial Commission finds tbat the relief tbat the injured worker was

receiving for his work activity amounted to $139.00 per month or $30.89 for the

week in which the 4/22/2003 injury occurred. This finding is based on the

08/09/20031etter on file from Cathy Jones, the employer's Risk Manager,

indicating that the injured worker's work activity qualif ied him for a $139.00

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monthly debit card for food. In addition, the Commission relies on the calculation

of the amount of weekly relief benefits set forth in the Bureau of Workers'

Compensation Referral letter dated 10/27/2003. Accordingly, the Industrial

Commission f nds that the average weekly wage in this claim was properly set at

$30.89.

d. At heating, the injured worker contended that the Ohio Supreme Court has struck

down the benefit computation method set forth in R.C. 4127.04 as a violation of

the Equal Protection Clauses of both the Ohio and United States Constitutions,

citing State ex rel Patterson v. Industiial Commission (1996), 77 Ohio St. 3d 201.

The Industrial Commission fnds, however, that the'facts in Patterson are

distinguishable from those involved in this case. In Patterson. the issue concerned

the application of R.C. 4127.04 in the context of a widow-claimant's request for

death benefits; in this case, the issue is the method of computation of the rate for

regular benefits for the injured worker himself. The Commission finds the

distinction significant for the reason that the express working of the Court's

syllabus in Patterson indicates that the decision in the case is limited to claims for

benefits by the dependents of injured workers.

e. As such, the Industrial Commission finds that the holding in Patterson is

inapplicable to the facts of this claim and that the injured worker's average weekly

wage was correctly set by the Bureau at $30.89.

(S.E. 100, Signed IC Order Mailed May 6, 2004).

Therefore, it is Relators' policy to apply R.C. § 4127.04 to determine, award and pay

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work-relief employee compensation benefits in direct contravention to the Ohio Supreme Court's

holding in Patterson.

SUNIII4ARY OF RELATORS' ARGUNffNT

1. The Ohio Supreme Court's decision in State ex rel. Patterson v. Industrial Commission of

Ohio, declared RC. § 4127.04, the statute upon which work-relief employees'

compensation and benefits are computed, unconstitutional as applied to work-relief

employees and their dependents.

IL The doctrine of stare decisis dictates that the Industrial Commission and the Bureau of

Workers' Compensation must follow Patterson and refrain from applying R.C. § 4127.04

when calculating work-relief employees' compensation and benefits.

IlL The Bureau of Workers' Compensation and the Industrial Commission improperly

applied R.C. § 4127.04 to determine William Beck and Bruce Smith's work-relief

eniployee workers' compensation and benefits.

IV. A class should be certified in this case.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy, difficult to achieve. But theright to bring an action in mandamus is an ancient one, wiselypreserved by the state's Constitution and statutes. Its essentialpurpose is to restore to the relator the rights and privileges of whichhe has been unlawfully deprived.

State ex. rel. Smith Y. .Industrial Commission of Ohio (1986), 26 Ohio St. 3d 128,130.

A writ of mandamus is warranted when: (1) the relator has a clear legal right to the relief

prayed for; (2) the respondent is under a clear legal duty to perform the requested act; (3) the

relator has no plain and adequate remedy at law. See State ex rel. Hod;es v. Taft ( 1992), 64 Ohio

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St. 3d 1; Hughes v. Ind Corn.rn.(1982), 1 Ohio St 3d 57. Relators as Ohio citizens and persons

who are eligible for PWRE benefits, have a clear legal right to compel Respondents to calculate

work-relief compensation benefits in accordance with Ohio law and the Ohio and United States

Constitntions. Respondents are under a clear legal duty to assure that P4JRE benefits are

determined, awarded and paid in the proper amount. Respondents are under a clear legal duty to

comply with Ohio Supreme Court decisions. See State ex rel. Gay v. Mihm (1994), 68 Ohio St3d

315. Relators have no plain and adequate remedy at law that will provide them with the relief

requested. A remedy is adequate only if it is complete, beneficial and speedy. See State ex rel.

Walker v. Lancaster City School Dfst. Bd. of Educ. (1997), 79 Ohio St 3d 216; State ec rel.

Crabtree v. Franklin County Bd of Health, 77 Ohio St 3d 247, recon. denied (1997), 78 Ohio

St. 3d 1415; State ex rel. Lyons v. Zaleski (1996), 75 Ohio St 3d 623.

Where a public officer or agency misconstrues a statute about which there may be an

honest difference of opinion, the proper remedy is a proceeding in mandamus to compel him to

act in accordance with the required construction, or to show cause why he does not. See State ex

rel. Attorney General v. Hoglan (1901), 64 Ohio St 532. A mandatory writ may issue against

the Industrial Commission if the Commission has incorrectly interpreted Ohio law. See State ex

rel. Gassman v. Industrial Commissiori (1929), 12 Ohio St 41.

"The determination of disputed factual situations is within the final jurisdiction of the

lndustrial Commission, and subject to correction by action in mandamus only upon showing of

abuse of discretion." State ex rel. Zito v. Indusirial Commission of Ohio (1980), 64 Ohio St 2d

53, 55. However, that standard of revicw is not relevant when the Comm.ission makes no factual

determination, but instead applies the wrong legal standard. See id The test, in this case, is not

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whether the Commission's order was based on "some evidence" in the record. The test is

whether the Commission applied the correct Ohio Revised Code Section in calculating and

determining work relief employee compensation benefits.

- Even if this Court determines that the "some evidence" rale is the proper standard of

review in this case, there is no evidence in the record to support Respondents' position that R.C.

§ 4127.04 should be applied in detP*m;n;,,g, awarding and paying work-relief compensation

benefits. Relators' failure to follow the Ohio Supreme Court's decision in Patterson and

application of R.C. § 4127.04 to work-relief compensation benefits cases is unreasonable,

arbitrary and unconscionable and, tlherefore, is an abuse of discretion. See State ex rel. Menough

v. Industrial Commission, No. 01AP-1031, 2002 Ohio App. LEXIS 3288 (10" Dist. June 25,

2002)(attached); State v. Ross, No. 20980, 2002 Ohio App. LEXIS 7161 (9' Disf..Dec. 31,

2002)(attached).

AItGUMENT

L THE OHIO SUPREME COURT'S DECISION IN STATE EX REL PATTERSONV INDUSTRIAL COALtIISSIONOP OHIO, DECLARED R.C. § 4127.04, THESTATUTE UPON WAICH WORK-RELIEF EMPLOI'EES' COMPENSATIONAND BENEFTTS ARE COMPUTED, UNCONSTTTUTIONAL AS APPLIED TOWORK-RELIEF EIVIPLOXEES AND TH.EIR DEPENDENTS.

On December 14, 1996, the Ohio Supreme Court decided State ex ret. Patterson v.

Industrial Commission of Ohio (1996), 77 Ohio St.3d 201, deolaring R.C. § 4127.04, the statnte

upon which work-relief employees' compensation benefits are computed, unconstitutional. The

Court found that "[RC. § 4127.04] does not treat similarly situated persons - - all employees and

their dependents - - in a sinvlar manner" and, as the disparate treatment is not based upon "any

legitimate governmental purpose" it violates the Equal Protection Clauses of the Ohio and United

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States Constitutions. See id at 206-07. Thus, in accordance with Patterson, a11 employees,

work-relief and non-work-relief alike, whose death, injuries or occupational diseases are

occasioned in the course of such workmen's employment, should be provided compensation

benefits calculated in the same manner. See id; Ohio Constitution, Section 35, Article IL

Relators must follow Patterson whether determ;n;ng, awarding and paying compensation

benefits to work-relief employees or work-relief employees' dependents. The Patterson Court

specifically held that R.C. § 4127.04 is "... inherently nafair and contrary to the purpose of

compensating employees and dependents. . . ." See Patterion, 77 Obio St3d at 207(emphasis

added). In adjudging R.C. § 4127.04 violative of the Equal Protection clauses, the Court

compared work-relief employees to non-work-relief employees. Comparing these two groups,

the court held that "R..C. 4127.04 treats those who are less fortunate, simplybecause they are less

fortunate, differently from otb.ers similarly situated." Id Further, the Court emphasized:

Clearly, the workers' compensation system is designed to aid workers and theirdependents and not intended to penalizevictims by denying compensation where due.... It seems to this court more in harmony with the spirit of work-relief legislationto hold the claimant to be an employee than to hold him to be a pauper or ward. Asound public policy pro mpts the efforts fo the state to preserve the self-reliance ofitscitizens, even if at extra expense. It is a's important to preserve the character as topreserve the lives of its citizens. Ill fares the land ... where wealth accumulates andmen decay.

Id

Finding RC. § 4127.04 unconstitutional only with respect to work-relief employees'

dependents and not work-relief employees themselves evokes absurd results. An example of the

arbitrary nature of R.C. § 4127.04, as illustrated by the Patterson Court, best relays why the

statute was declared unconstitutional for purposes of calculating compensation and benefits for

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employees and their dependents:

The arbitrary nature of R.C. 4127.04 can best be illustrated by an example whichconsiders the minimum award available to non-work relief dependents, regardlessof the enxployee's weekly wage. For instance, if appellant's 'decedent had beenengaged the week preceding his death in non-work-relief employment paying aweekly wage of $33.11, appellant would not have been limited to a weekly deathbenefit of $33.11. Rather, appellant would have been entitled to a benefit equal tofifty percent of the statewide average weekly wage, according to R.C. 4123.59(B),which is considerably greater than $33.11, See R.C. 4123.62(C). We can conceiveof no reasonable justification for such disparate treatment between work-reliefemployees and non-work=relief employees.

Id. Using tbe same example, but considering the **+inimum award available to temporarily

disabled non-work-relief employees, the same result occurs. If a temporarily disabled non-work-

relief employee were engaged in non work-relief employment prior to his injury paying a weekly

wage of $33.11, the temporarily disabled non-work-relief employee would not be limited to a

weekly compensafion benefit of $33.11. Rather the temporarily disabled non-work-relief

employee would be entitled to a compensation benefit not less than thirty-three and one-third per

cent of the statewide average weekly wage. Whereas, under RC. § 4127.04, the temporarily

disabled work-relief employee would be limited to his weekly compensation benefit of $33.11.

Therefore, in accordance with the Ohio Supreme Court's decision in Patterson, RC. §

4127.04, is unconstitutional and must not be applied to determine, award and pay work-relief

employees' compensation benefits.

II. THE DOCTI2INE OF STARE DECISIS DICTATES THAT TBE INDUSTRIALCOMMISSION AND THE BUREAU OF WORKERS' COMPENSATION•IVI[TSTFOLLOW PATTBRSON AND REFRA.IN FROM APPLI'IING RC. § 4127.04V4'HEN CALCULATING WOI2K-RELIEF EMPLOI'EES' COMPENSATIONAND BENEFTTS.

The courts of Ohio adhere to the doctrine or rule of stare decisis in following

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decisions previously made in similar cases. See Shoemaker v. City of Cincinnati (1903), 68 Ohio

St 603, 612. "The doctrine of stare decisis is of fundamental importance to the rale of law."

Wampler v. Higgins (2001), 93 Ohio St 3d 111, 120 (citing Patterson v. McLean Credit Union

(1989), 491 U.S. 164, 172). "[A]ny departure from the doctrine of stare decisis demands special

justification." Id. "This is true even in cases of constitutional interpretation ...." Id.

JnDonohoe v. Industrial Commission, No. 105; 1940 Ohio App. LEXIS 1206 at *10 (2a

Dist Apri130, 1940)(attached), the Champaign County Court of Appeals held that Petitioner's

' claim for workers' compensation would be denied based on previous Ohio Supreme Courtcase

law. The Court held that "[i]n the Kaiser case we stated that if we were considering the matter as

an original proposition we would fnd for Claimant, but that we felt bound under the rule of stare

decisis to follow the decision of the Supreme Court where the identical principle was announced

in the case of Bernhardt v. Industrial Commission of Ohio, 127 Ohio St 582." " Dono hoe 1940

Ohio App. LEXLS at *10. Thus, absent special jvstification, the Industdal Commission must

follow and implement the Supreme Court's holding in Patterson.

In Cray, 68 Ohio St 3d at 323, the Ohio Supreme Court specifically ". . . admonish[ed]

the commission that it must make significant efforts to comply with [their] decisions ... ." The

Gay case was fouuded on the Supreme Court's repeated "$ustration with vague commission

orders." See id at 319. The Court reiterated that "the commission must prepare fact-specific

orders justifying its decisions granting or denying requested benefits . . . " in accordance with

State ex rel. Noll v. Industrtal Commission (1991), 57 Ohio St 3d 203. See id. Accordingly, the

Industrial Commission and the Bureau of Workers' Compensation must comply with the

Supreme Court's decision in Patterson.

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III. 'I'HE BUREAU OF ;;"?P`^KERS' COMPENSATIONAND THE INDUSTRIALCOMI1'JISSION IYi. IPROPERLY APPLIED R.C. § 4127.04 TO DETERMINEWILLIAM BECKAND BRUCE'SMITH'S WORK-RELIEFEMPLOYEEWORKERS' COMPENSATION AND BENEFITS.

Relators abused their discretion when they incorrectly applied RC. § 4127.04 to

determine, award and pay William Beck and Bruce Smith's workers' compensation benefits. On

June 26, 2002, while working as a laborer at Geneva-on-the Lake as a public work-relief

employee, Mr. Beck was attacked by bees causing bim to jump off a truck and break his leg.

(S.E. 7, Beck Medical History). Soon therea$er, Mr. Beck filed a claim for workers'

compensation with the Bureau of Workers' compensation (`BWC"), which was allowed by the

BWC for a fractured right tibia, "leg." (S.E. 11, July 17, 2002 BWC Order). On September 27,

2002, Mr. Beck filed a C-86 Motion requesting that his average weekly wage be set at $248.37

per week, utilizing the 104-week method in accordance with R.C. § 4123.61. (S.E. 13, September

27, 2002 C-86 Motion). In accordance with RC. § 4123.56, Mr. Beck also requested the BWC

pay temporary total disability compensation from June 26, 2002, and continuing pursuant to R.C.

§ 4123.56 until the date he was no longer temporarily disabled. (Id.).

On October 21, 2002, the BWC referred Mr. Beck's motion to the Industrial

Commission. In direct contravention to Patterson, the BWC stated, in accordance wi.th R.C. §

4127.04, that "[t]he wages and compensation for PWR.E claims are set and paid differently than

other claims. The amount of work relief payments the injured worker would have been entitled

to for the calendar week that the injury occurred, is the basis for computing compensation rates.

Therefore, BWC request (sic) denial to. the injured workers methods of setting wages." (S.E. 15,

October 21, 2002 Notice of Referral to IC). On November 20, 2002, a hearing was held before

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District Hearing Officer (DHO) Bartko. (S.E. 19, DHO Bartko Order Mailed November 23,

2002; S.E. 25, DHO Barfko Corrected Order Mailed November 29, 2002). DHO Bartko held

that "[p]ursuant to Ohio Revised Code 4127.04, the claimant's Average Weekly Wage and Full

Weekly Wage are set at $82.90. This is based on the claimant's public assistance receipts of

$393.00 monthly divided by 4.5." (Id.).

On December 3, 2002, Mr. Beck appealed the DHO Order to the Industrial Commission's

Staff Hearing Officer ("SHO"). (S.E. 27, IC-12 December 3, 2002 Notice 6f Appeal). In SHO

McKinney's Order mailed January 28, 2003, SHO McKinney also improperly applied RC. §

4127.04 to determine Mr. Beck's workers' compensation benefits. (S.E. 28, SHO McICinney

Order Mailed January 28, 2003). SHO McKiiiney held that "[p]ursnant to Ohio Revised Code

Section 4127.04, the Staff Heari.ng Officer orders that Claimant's Full and Average Weekly

Wages are set at $82.90. This figure is based on the Claimant's public assistance receipts of

$393.00 monthly divided by 4.5 weeks." SHO McKinney also incorrectly held that pursuant to

RC. § § 4127.03 and 4127.06, Mr. Beck was not entitled to temporary total compensation from

6/27/02 tbrough 10/01/02 inclusive because he was not temporarily and totally disabled for

greater than six months.

SHO McKinney abused his discretion in denying temporary total compensation from

6/27/02 through 10/01/02 because the statute does not so provide. R.C. § 4127.06 provides

"[d]uring periods of temporary disability and partial disability ... an injured work-relief

employee shall be paid directly out of the fund from which the employee was receiving relief...

, When all of the fnnd for relief purposes which are available to any employer are exhausted, or

when disability as a result of the injury is continuous beyond a peiiod of six months, the injured

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work-relief employee shall be compensated for temporary and partial disability out of the public

work-relief employees' compensation fiuid by the bureau of workers' compensation in the same

manner and amount as is provided in section 4127.01 to 4127.04 of the Revised Code for other

disabilities." RC. § 4127.06 (emphasis added). Thus, SHO McKinney abused his discretion in

applying R.C: § 4127.04 to determine Mr. Beck's work-relief employee workers' compensation

benefits and in denying him compensation in accordance with R.C. §§ 4127.03 and 4127.06.

The Industrial Commission refused Mr. Beck's appeal. (S.E. 33, IC Claim Refusal Mailed

February 12, 2003).

Mr. Beck has exhausted his administrative remedies and he has no adequate remedy at

law. There is no evidence in the record upon which Respondents could have based their

conclnsion that (1) Mr. Beck's compensation should be paid in accordance with R.C. § 4127.04

and that (2) Mr. Beck was not eligible for the $1,148.76 in temporary total disability

compensation. Therefore, Respondents abused their discretion. Mr. Beck was injured, and,

therefore, the Industrial Commission's January 22, 2003 Order must be vacated and retumed to

the Industrial Commission to issue a new order reflecting the proper calculation of his workers'

compansation benefits in accordance with Patterson. Altematively, relief should be granted

pursuant to Gay, 68 Ohio St 3d 315 (Court ordered the Industrial Commission to award

pemmanent total disability benefits to employee instead of returning cause to the Comm.ission for

compliance). Fnrther, the Industrial Commission must issue an Order finding that Mr. Beck is

entitled to temporary total compensation from 06/27/02 through 10/01/02, inclusive.

'On July 7, 2003, Aistrict Hearing Officer Pappas held that Bruce Smith sustained an

injury in the course of and arising out of employment and that his claim wiIl be allowed for right

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losee sprain/strain, tear of right lateral meniscus. (S.E. 59, DHO Pappas Order Mailed July 10,

2003). In that Order, DHO Pappas ordered that temporary total compensation be paid to Mr.

Smith from Apri126, 2003 to June 8, 2003. (Id.). On July 2, 2003, Mr. Smith's employer,

Mahoning County, appealed the DHO's Order. (S.E. 61, IC-12 July 22, 2003 Notice of Appeal).

On September 24, 2003, Staff Hearing Officer Bobovnyik heard the appeal and ordered that

temporary total compensation will be paid to Mr. Smith in accordance with RC. § 4127.06. (S.E.

62, SHO Bobovnyik Order Mailed September 30, 2003). Thus, Mr. Smith's fiill weekly wage

and average weekly wage were set at $30.89, well below the statewide full and average weekly

wage. (S.E. 65, Stamped BWC Order Mailed October 1, 2003). As the SHO set Mr. Smith's

wage in accordance with 4127.04, W. Smith appealed the Order on October 16, 2003, requesting

that his average weekly wage be set at $221.44 per week in accordance with the wages he eamed

prior to his work-relief employment. (S.E. 67, C-86 Motion October 16, 2003).

On December 22, 2003, District Hearing Offtcer Gibbons heard the appeal and agreed

with Mr. Smith that his average weekly wage would be set at $221.44 using the earnings during

the year prior to the date of injury. The DHO specifically relied on Patterson in maki.ng its

determination. (S.E. 76, Signed DHO Gibbons Order Mailed December 24, 2003). The BWC

appeal the DHO's decision arguing that W. Smith's wages should have been calculated in

accordance with RC. § 4127.04. (S.E. 78, IC Online Appeal Filed by BWC on January 2, 2004).

Staff Hearing Officer Bodzenta heard the appeal and agreed with the DHO that Mr. Smith's

wages were properly calculated pursuant to R.C. § 4123.61 and Patterson. (S.E. 84, Signed SHO

Bodzenta Order Mailed February 10, 2004). SHO Bodzenta set Mr. Smith's average weekly

wage at $221.44. (Id ). The BWC again appealed the SHO order and argued that ". .. a mistake

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of law exists in setting an :: e.-_ee :.-e--ldy wage (ANTJW) pursuant to ORC 4123.61 in a claim

controlled by ORC 4127.01 et seq.... Additionally, the case law cited by the SHO referred to a

death claim which does not apply here. The benefits should be set at $30.89 weekly." (S.E. 79,

IC Online Appeai Filed by BWC on Febru.ary 24, 2004).' The Industrial Commission heard the

appeal and vacated the Pebruary 10, 2004 SHO Order. (S.E. 100, Signed IC Order Mailed May.6,

2004). Specifically, the Industrial Commission denied Mr. Smith's request to set his average

weekly wage at $221.44 and found that the BWC correctly set the average weekly wage at

$30.89. (Id). The Industrial Commission based its finding on R.C. 4127.04 and specifically

held:

At hearing, the injured worker contended that the OhioSupreme Court has struck down the beneft computation rnethod setforth in R.C. 4127.04 as a violation of the Equal Protection clausesof both the Ohio and United States Constitations, citing State ex rel.Patterson v. Industrial Commission (1996), 77 Ohio St.3d 201. TheIndustrial Commission finds, however, that the facts in atterson aredistinguishable from those involved in this case. In Patterson. theissue concerned the application of RC. 4127.04 in the context ofa widow-claimaint's request for death benefits; in this case, theissue is the method of computation of tfie rate for regular benefitsfor the injured worker himself. The. Commission finds thisdistinction signiflcaat fbr the reason that the express wording of theCourt's syllabus in Patterson indicates that the decision in the case islimited to claims for benefits by the dependents of injured workers.As such, the Industzial Commission finds that the holding inPatterson is inapplicable to the facts of this claim and that the injuredworker's average weekly wage was correctly set by the Bureau at$30.89.

(Id)(emphasis added).

'The employer also appealed the SHO Order.

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Thus, Mr. Smith's compensationwas unconstitutionally calculatedbyRelators in accordance

with R.C. § 4127.04. There is no evidenceupon which the Commission could have based its factual

conclusion that Mr. Smith's compensation benefits should be calculated in accordance with R.C. §

4127.04. Therefore, Respondents abusedtheir discretion. Mr. Smith's administrativeremedies have

been exhausted and he has no adequate remedy at law. Mr. Smith was injured, and, therefore; the

Industrial Commission's April 27, 2004 Order must be vacated and returned to the lndustrial

Commission to issue a new order reflecting the proper calcnlation of his workers' compensation

benefits in accordance with Patterson. Altematively, relief should be granted pursuant to Gay, 68

Ohio 5t. 3d 315.

IV. A CLASS SHOULD BE CERTIFIED AN ACCORDANCE WITH CIVII, RiILE 23(A)AND 23(B)(2).

Respondents' unlawful application of R.C. § 4127.04 affects an entire class of persons as

defined in Relator's Petition for Writ of Mandamus:

All injured work-relief employees with open and active cases whowere or are eligible to receive temporary total disability benefits andother benefits through the Bureau of Workers' Compensation andwho were awarded benefits, but not in the fnll amount due to thembecause they were calculated in accordance with RC. § 4127.04,which is unconstitutional as determined by the Ohio Supreme Courtin State ez rel. Patterson v. Industrfal Commission (1996), 77 OhioSt. 3d 201.

The process of class certification does not require evidence on the merits of the plaintiff's

claims; certification is not a preliminary inquiry into the merits or the class representative's

likelihood of success. See Baughman v. State Farrn Ins. Co. (2000), 88 Ohio St. 3d 480, 486(citing

1 Newberg and Conte on Class Actions (3`° ed. 1992)); Ojalvo v. Board of Trustees of Ohio State

University (1984), 12 Ohio St. 3d 230, 233; Cobbett v. Human Development & Counselingl4ssoc.

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Inc., No. CA-6711, 1985 Ohio App. LEXLS 9961 (5`^ Dist. Dec. 23, 1985)(attached). In fact, the

allegations of the complaint must be considered tme. See Begala v. PNC Baiik, Ohio, Nat. Ass'n.,

No. C-990033,1999 Ohio App. LEXIS 6331(1"Dist Dec. 30,1999)(attached); Zahnke v. Blaushild

Chevrolet, Inc., No. 45696, 1983 Ohio App. LEXIS 15332 (8°i Dist. Sept. 15, 1983)(attached);

Walther v. Pension Plan (S.D. Ohio 1994), 880 F. Supp. 1170.2

A case becomes a class action not by having a pre-existing factual or substantive status to

be p'roven by trial, but through its adoption by the Court as a procedural tool: "an action filed by a

class representative on behalf of, or against, an entire group of persons with common issues that

make a collective lawsuit more efficient" See Begala, 1999 Ohio App. LEXIS 6331. All that is at

issue on motion to certify is whether one or more of the claims alleged on behalf of the class is the

type of claim that allows the common proof and resolution of one or more substantial issues material

to that claim.. See Cuny v. Shell Oil, Inc. (1996),112 Ohio App. 3d. 312; Cubberly v. Chrysler Cory.

(1981), 70 Ohio App. 3d 263, 267-8; Wilson v. First Federal Savings and Loan Association of

Canton, No. CA-6481, 1985 Ohio App. LEXIS 6116 (5s` Dist. Feb. 15, 1985)(attached). If so, the

requirements of Rule 23 are satisfied. See Hamilton v. Ohio Savings Bank(1998), 82 Ohio St. 3d 67;

Spraguev. General Motors Corp. (6b Cir. 1998), 133 F. 3d. 388, 397.

The seven requirements of Rule 23 are: (1) the class must be defined so that membership can

be determined unambiguously; (2) the named representative must be a member of the class as

defined; (3) the class must be so numerous that joinder of all members is impracticable; (4) there

must be at least one question of law or fact common to the class; (5) the claims or defenses of the

2 Federal class action authority is properly considered in Ohio courts due to the near-identitybetween Ohio and Federal Rule 23. See Cuny, 112 Ohio App. 3d 312.

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representativepartymustbetypicaloftheclaims or defensesoftheclass; (6)tberepresentativeparty

must be able to fairly and adequately proteet the interests of the class; and (7) one or more of the

Civil Rule 23 (B) requirements are met. See Hamilton, 82 Ohio St 3d at 71(citing Warner v. Waste

Management, Inc. (1988), 36 Ohio St 3d 91). The claims brought on behalf of the class are the

types of claims which satisfy each of these sevenrequirements, and the Court therefore should certify

aclass?

CLASS DEbgTITTON

The definable class requirement is met where the class definition is clear enough that the

Court may determine by objective criteria whether a given individual is or is not a member of the

class. See Hamilton, 82 Ohio St3d at 71-72; Warner, 36 Ohio St 3d at 96. Relators propose the

following definition for'the class:

AII injured work-relief employees with open and active cases whowere or are eligrble to receive temporary total disability benefitsand other benefits tbrough the Bureau of Workers' Compensationand who were awarded benefits, but not in the full amount due tothem because they were calculated in accordance with R.C. §4127.04, which is unconstitational as detemvned by the OhioSupreme Court in State ex rel. Patterson v. Industrial Commission(1996), 77 Ohio St 3 d 201.

The identity of each member of the plaintiff class can be defnitively and objectively deteimined

from Respondents' records. A class definition phrased in reference to objective and readily

determinable facts like these means this Court can easily and accurately decide whether any

given person is or is not a member of the plaintiff class. These de$aitions therefore satisfy the

first prerequisite to certification. See Hamilton, 82 Ohio St.3d at 73-74.

3 This is especially true since doubt, if any, should generally be resolved in favor ofpreliminary ceztification. See Baughmara, 88 Ohio St 3d at 487.

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CLASS MEMBERSH]P

This factor tests whether the named representative is a member of the class as to have

standing to assert claims brought on behalf of the class. See Hamilton, 82 Ohio St. 3d at 74. Mr.

Beck and Mr. Smith are par(ies beneficially interested in accordance with RC. § 2731.02 as they

are citizens of Ohio with open and active cases who are eligible to receive temporary total

disability benefits through the Bureau of Workers' Compensation and who were awarded

benefits, but not in the fnll amount due to them because they were calculated in acoordance with

R.C. § 4127.04, which is unconstitutional and in direct contravention tn the Ohio Supreme

Court's holding in State ex rel. Patterson v. Industrial Commission of Ohio (1996), 77 Ohio St.

3d 201. They, therefore, fall within the class definition. Mr. Beck and Mr. Smith, therefore,

have standing to raise the causes of action asserted for the class, and this factor has also been

satisfied. See id.

IMPRACTICAT.TTY OF JOIINDER

The class action tool is only needed where it would be difficult or unwieldy for all

members of the class to individuaIly appear as parties in the litigation. See Marks v. C.P.

Chemical Co., Inc., (1987), 31 Ohio St. 3d 200, 202 (noting class of 23); Shaver v. Standard Oil

Co. (1993), 89 Ohio App. 3d 52, 56 (class of 40). The plaintiff class here is far too large for

individual joinder. There is a reasonable inference that more than forty Ohio residents meet the

class definition in accordance with the Industrial Commission and Bureau of Workers'

Compensation records as Respondents are solely responsible for determin;r,g, awarding and

paying compensation benefits to injured work-relief employees. (S.E. 1, Jan. 10, 2003 E-Mail).

Given those facts, it is more likely than not that the class members exceed forty in number,

29

54

establishing that it is impracticable to individually join as parties all members of the class.

Finally, the class includes future members who cannot now be identified and joined. The Rule 23

(A) (1) factor is therefore fully satisf ed is this case.

CO1VIlYIONALTTY

As the Fifth District Court of Appeals made clear more than 15 years ago:

Civil Rule 23 (A) (2) requires that there be a common question either of fact orlaw. Nowhere in the rule is there a requirement that all questions of law and factbe common to the class .... The [A] [2] prerequisite requires only a single issuecommon to the class. It is settled that the individual issues will invariably bepresent in a cless action, and that the common issues need not be dispositive ofthelitigation.

Cobbett, 1985'Ohio App. LEXIS 9961(attached); Wilson, 1985 Ohio App. LEXIS

6116(attached). The commonality requirement is generally given a permissive application; so

long as there is a common nucleas of operative fact or a common liability issue, the rule is

satisfied. See Hamilton, 82 Ohio St. 3d at 77. Cases which ailege causes of action arising from a

customary, standardized practice, a common scheme of action or omission to act, or allegations

of a common fcaud are "classic"cases for class action treatment under Rule 23 (A)(2). See Cope

v. Metro Life Insurance Co. (1998), 82 Ohio St. 3d 426.

Mr. Beck and Mr. Smith allege the class shares common questions of law or fact.

Common questions of fact include, but are not limited to, whether Respondents applied R C. §

4127.04 to determine work-relief employee compensation benefits. Common questions of law

include, but are not limited to, whether Respondents are required to follow Patterson in

determining work-relief employee compensation benefits. As a resnlt, the commonality

30

55

requirement of Rule 23 (A)(2) is satisfaed by the claims presented in this case.

TYPICALITY

Rule 23 (A)(3) assures that the interests of the named representative are substantially

aligned with the interests of absent class members. The rule does so by requiring that the

defenses or claims of the class representatives be "typical" of the defenses or claims asserted for

the class, which means there is no express conflict between those interests. "Typical" does not

mean "identical"; identity of all claims and defenses is not required. See Planned Parenthood

Association of Cincinnatt, Inc. v. Project Jericho (1990), 52 Ohio St3d 56, 64; Pyles v. Johnson

(2001), 143 Ohio App. 3d 720. Typicality is satisfied if the named representative's claims (1)

arise from the same offense, practices, or courses of conduct which are alleged to have injured

the class, and (2) are based on the same legal theories as those advanced for the class. See

Baughman, 88 Ohio St. 3d at 485(citing 1 Newberg and Conte on Class Actions (3d. ed. 1992)).

Mr. Beck and Mr. Smith allege that they have been injured by the same practices which

affect the class as a whole. The causes of action which Mr. Beck and Mr. Smith assert are the

same for themselves as for the class. The claims brought here, therefore, satisf'y the typicality

factor for certification.

ADEQUACY OF REPRESENTATION

A named representative is adequate as a class representative so long as his or her interests

are not antagonistic to those of other class members. See Hamilton, 82 Ohio St 3d at 77-79;

DeSario v. Industrial Excess Landfill (1991), 68 Ohio App. 3d 117, 123. Mr. Beck and Mr.

Smith's interests in asserting and protecting their rights as Ohio work-relief employees are

identical to the interests of the absent class members. As a result, no antagonism exists.

31

56

Absent class members will be fairly and adequately represented legally if putative class

counsel is able and experienced, so there is no danger of collusion with the party opposing

certification (collusion being potentiaily detrim.ental to the rights of the absent class members).

See Zahnke, 1983 Ohio App. LEXIS 15332(attached). Mr. Beck and Mr. Smith's counsel has

extensive experience in representing absent class members in both federal and state trial and

appellate courts. Counsel has the knowledge and ability to protect and vigorously assert the rights

of absent class members. As a result, the final Rule 23 (A) factor is fully met in this case.

RULE 23 (B)(2) CER'I'IFICATION

W. Beck and Mr. Smith seek certification of the plaintiff class for equitable relief

pursuant to Rule 23(B)(2), which allows certification of a class which passes the Rule 23 (A)

standards when:

the party opposing the class has acted or refused to act on grounds generallyapplicable to the class, thereby making appropriate fmalinjunctive relief orcorresponding declaratory. relief with respect to the class as a whole.

The Respondents' acts at issue - knowingly failing to follow Patterson and applying RC. §

4127.04 to calculate work-relief employees' compensation benefits - constitute grounds generally

applicable to all injured work-relief employees with open and active cases who were or are

eligible to receive temporary total disability benefits and other benefits through the Bureau of

Workers' Compensation and who were awarded benefits, but not in the fiill amount due to them

because they were calculated in accordance with R.C. § 4127.04, which is unconstitutional as

determined by the Ohio Supreme Court in State ex rel. Patterson v. Industrial Commission

(1996), 77 Olrio St. 3d 201. Mr. Beck and Mr. Smith seek equitable relief from these common

32

57

actions for the class as a whole, seeking to stop Respondents' actions which have injured class

members and seeking to vacate the Industrial Commission's orders, returning each case to the

Industrial Commission to issne a new order reflecting the proper c.alculation of compensation

benefits in accordance with Patterson and the Ohio Revised Code. The entry of class-wide

equitable relief for the common injury suffered from these acts is both warranted and appropriate.

Therefore, the claims for class-wide equitable relief may and should be certified under Riule 23

(B)(2). See Hamilton, 82 Ohio St. 3d at 77-79.; Zahnke,1983 Ohio App. LEXIS 15332(attached).

V. CONCLUSION.

For all the foregoing reasons, Relators respecttully ask this Court to enter relief as

follows:

1. Issue a peremptory or altemative writ of mandamus vacating the Industrial

Commission's orders and retnrning each case to the Indust.rial Commission to

issue a new order refleating the proper calculation of work-relief benefits in

accordance with Patterson and the Ohio Revised Code.

2. Certify a class in accordance with the definition set forth above and award the

class injunctive relief including vacating the Industrial Commission's orders and

returning each case to the Industrial Commission to issue a new order reflecting

the proper calculation of work-relief benefits in accordance with Patterson and the

Ohio Revised Code.

3. Order Respondents to apply Patterson to all work-relief employeebenefit cases.

4. Order Respondents to cease and desist from applying R.C. § 4127.04 to work-

relief employee benefit calculations.

33

58

5. Vacate the Industrial Commission's January 17, 2003 Order that temporary total

compensation is not payable to Relator Beck from 06/27/02 through 10/01/02,

inclusive, and return the case to the Industrial Commission to enter a finding that

Mr. Beck is entitled to temporary and total compensation from 06/27/02 through

10/01/02, inclusive, and to issue a new order reflecting the proper calculation of

work-relief benefits in accordance with Patterson and the Ohio Revised Code.

6. Vacate the Industrial Comm.ission's April 27, 2004 Order and retnin Relator

Brnce Smith's case to the Industrial Commission to reinstate the Staff Hearing

Officer's Order setting Relator Bruce Smith's average weekly wage at $221.44.

7. Award Relators their litigation expenses, as well as such other relief to which they

maybe entitled in law or equity.

8. Award the Equal Justice Fonndation any attorney's fees allowed by law.

9. Grant relief to the named Relators and the class members pursuant to State ec reT.

Gay v. Mihrn (1994), 68 Ohio St. 3d 315.

Respectfully submitted,

34

88 East Broad Street, Suite 1590Columbus, Ohio 43215P: (614) 221-9800F: (614) 221-9810igoldstein(a^egualjusticefoundation. com

Goldstein (0069655)UAL JUS'1'ICE FOUNDATION

Counsel for Relators

59

CERTIFICATB OF SERVICE

I hereby certify that a copy of the foregoing Relators' Brief was mailed to counsel for

Respondents, William J. McDonald, Assistant Attorney General, Workers' Compensation

Section, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215-3 130, by r egular U.S. mail,

postage prepaid, this 23rd day of December 2004.

35

th B. Goldstein (0069655)unsel for Relators

60

GARY ZAMAIRYQW&omey at &w

Mailine Address:Post Office Box #3965Youngstown, OH 44513-3965

Bruce W. Smith1639 Forest View DriveYoungstown, OH 44505-3207

PH: 3 30/726-1654 (ext 23)FAX: 330/726-5608

August 12, 2008

Location:120 Marwood CircleYoungstown, OH 44512

IN RE: Your Workers' Compensation Claim #03-821904Date of Industrial Injury: Apri122, 2003

SUBJECT: Full and Final Settlement of Claim

Dear Bruce,

I am enclosing for your review, a copy of the original Settlement Agreement that we asked thecounty to sign, settling your Apri122, 2003 Workers' Compensation Claim for Two ThousandFive Hundred Dollars ($2,500.00). As you know, the bighlighted language on this settlementapplication was provided by Attomey Goldstein; and she requested that this language be put onthe settlement, because of their on-going case.

The attomey for the county has now advised me that they will not sign off on the SettlementAgreement that has the highlighted language, dealing with the case that is pending in the Su-preme Court.

At this time, I am also enclosing a new Settlement Agreement without the highlighted language,simply settling your claim for Two Thousand Five Hundred Dollars ($2,500.00). The county hasadvised me that they will sign off on this Settlement Agreement. If you do want to go forwardwith the Settlement Agreement, I would ask that you please initial and sign this SettlementAgreement in all of the places indicated and then return it to me.

I have also sent a copy of this letter to Attorney Goldstein; and if you feel that you need to speakwith her, you certain can.

Very truly yours,

GARY ZAMARY,Attomey at Law

GZ/Cheryl

encs

Copy to Attorney Judith Goldstein

61

13y^CWWA Settlement Agreement and Application forApprovaL of Settlement Agreement

(For state-fund daims only)(Self-insured claimsfile 51-42)

This app6catian should be filed to settle workeri compensation daims with stxte-fund employers. Ohio Revised Code 4123.65 requires settlement epplicetions be signedby both the injured workes and the employer, unless Me employer is no Ionger doing business in Uhin. If the claim to be settled ie a state-hnd cUim, and the employer isnowsetf•insvdng, the seifdnsunng employer wilf be charged dollar fordollarkr any pwiion of the settlement attdbuted to pest, presentoi Futum Disebled Wokeri ReGeFFund (DWRF) liabtflty.

By filing this applicatlon, the injured worker and the employer agree that all unresoived issues wilt be suspended. All ongoing compensafion end medinl payments,hosveve0 will continue unl(1 the effective settlement date. The effective settlement date is the mailing date of the Dhio Bureau of Workers' Cnmpensation (BWC) approvalof settlement agreemenL

Please Note: The persone involved with filing this settlement agree that if ary other claim(s) or part of any claim(s) being setded hu been recognized or a0nwed,then the cuat of xll mediczl servirss, hospital bills, drugs and medicines with dete(s) of servia or filling of related prescripllons (not to exceed a 3D-day supply) providedto the injured worker beforc the effective setnement date, shell he the respansibiGty of the state insurznce fund, proNded such costs result from the allnwed cenditlonsof the claims and are properly payable under cunent medical paymmt guidelines. The costs of eN mediral serviaa, hospital bilts, drugs end medidne wiM the date(s) ofseMa of fiAing of related prescriptiens (not to exceed a 30-day vuppty) pvided to the injured worker on or after the effective settlemeM date are fhe responsibility oft he injured worker.

By initizlingthis bma, the injured nvrker arknowledges he or she has read and understands the above statement

Speoal Notice to Medicare BenefiriarieeMedicare does not pey medical biUs for cenditions cnvered by your workers' compensatlon claim. If a settlement of your workers' compansation claim is reached,and the settlement z0ocates rertain amountz for future medicat apemes, Medicase does not pay fnr those seMces until medical expenses related to your work-eri compensatlon claim equalthe amnuM ef the lump sum settlement aBoated to future mediczl eapensez. For addidonalinformetlon, please all the Medirerecoordinadon of benefits contractor at (BDO) 999-1116.

Inshuctiuns• For iost-time and medical-only claims mail this completed app6otion to your nearest customm service office.• CaB f-BDO-DNIDBWC fnr the address of your local customer servace nffice.• To settle a claim with a self-insuring empioyer, pieue complete end fmwasd form 5I32, or contactyourseRinsudng employet for other forms setting out the agree-

ment betwxen the injured worker and self.insuring employer.• To hcilltate setdement of this cleim, please forward any unpeid bills to your managed care oryanization.• Include a list of xny unpaid bille you am eware of or attzch copies of any unpaid biilf ar statements.

Appliatiun fur Approval of Settlement AgreementThe injured woder and employer, as zgreed to below, make appBation to BWC for approval of a finalsettlement in the injured woM1ds claim(s).

Parties to the ClaimInjured worker neme

Bruc W. SmithSodal Security number

2 3-38-1368Date of birth

3/18/45Phene numher

-250/743-0805Addmss

1639 Forestview DRiveCfty

YoungstownState

OH]IP code

44505-3207Injured worker apresentanve name

Attorney Gary ZamaryI.D, number

016467-90Phone number

330/726-1654Address

Post Office Box #3965City

YoungstownState

OHllP code

44513-3965Employername

Ug CountRisknumber

35D00006 0fxenumber Phone number

Address

21 West Boardman St #200City

Youn stownState

OHZ1P code

44503-1416Emplnyer representative name

a

Fax number

f 330 )740-20CPhone number

Bss City State

21 W. Boardman St #600 Youngstown OHilPcode

44503-1426Information on other relevant employers Is attached q Yes IM

Claim s to be Inctuded In SettlementClaim Number• Requested amount for

complete setdement••Proposed alloration of requested settlement amount

Indemnity Presnlption dru gs Medial

03-821904 $2,500.00

•List any claims zperifiully excWded fmm settlement:

•`Nease ezplain any request for a paMal settlement

Clearty set forth the cfrcumstances by reasnn of which the pruposed settlementis deemed desimble.

After fullydiscussing thda: martPr with mg at-rr,rna3r T h p irp rl •ri ri

that it would be in my best interest to settle this claim. Addi-

tionally, I will be able to use the proceeds from the settlement of

my claim to pay.down my personal debt and use for living expenses.

Has information on other mlevent claims been atdched? y,yq Yes `t`tNO

Arc you receiving, or have you applied for Medicare henefits? ^qr'"q Yef qyacau

Are you receiving medial treatment at this time?

q Yes q N.

Who is your trcating physidan(s)? Wages at time nf injury?

Are you wrrennyAqtAingTq Yes ^tlo

If yes, who is your present employer? Whatis your yresent occupatlon? What ere your present wages?

BWC-1372 ( Rev. 2/1/20D7)[-240

^a

Cb,A.IP4ANT: BRUCE W. SMITH BWC CLA'@f 1): 03-821904

Employer Signature(Required by ORC 4123.65 unless the employer is no longer doing business in Ohio)

Instructions• Phase check une oF the following bmee and sfgn below. Your signature does not waive the emplcyds ri g hl to wiMdnw mnsent to Ne settlement by pmJding wntten notire m

the empioyee and the BWC administntm within 30 deys affer Me adminlsNWr fssues the approval of tlre settlement agreement

q A. The employer is suppnrtiae of and agreeable tu a settlement up to the emnunt listed on Me frant nf this applicatian.

q B. The employer does not agree with Me requested settfement terms, bu t will paRicipate with the BWC in the negotiation process.

q C. Theemployerissupportiaeofandegreeablelnsettlemenloftheclzimsin the settlement negotiatiuns and requests lhe BWC ta negntlate the

listedunthefrontofthisapplication.However,thsettlement on behalf of the empluyer.

eemplnyerwillnotparncipate

q D. The employer is nnt agreeable to settlement of the deim(s) listed on the front of this appRcation.

By signing this ngreement on emptoyer thob'u rumn4y refJ-insmed acknowledges irs obligvtiun to aefmburse BWCforthe portion ofWe setdement omount nilocoted

to DWRFcosts of the obovereferenaed doim(s). The DWRFpcrBon fthe settlement will be bffled to the seff-insuring emp(oyey even if the injured wonter hos ewt yet

been de[ermined to be pennonently and totoRy disabled ur orrrenNy efigible for DWRF benefits.

Emptoyer signature Title Date

Telephnne number faz number

^l ) L I

Settlement Agreement and Release

As set forth in this agreement, the injured worker for and in consideration of the receipt of the settlement amountapproved by the BWC, which sum wiLl be paid from the appropriate fund on behalf of the empLoyer after approval bythe BWC administator, unless within 30 days after such approvalthe administrator, the employer or the injured worker,withdraws consent to, or unless the Industrial Commission of Ohio (IC) disapproves the agreement, does hereby forhim/herself and for anyone claiming by, through or under him/her, forever reLease and discharge the above referencedemployer, its officers, employees, agents, representatives, successors and assigns, the IC, the BWC, the appropriatefund, and a[l persons, firms or Corporations from any or alL ciaims, demands, actions or causes of action incurred on oiprior to the date of the approval of this agreement, arising out of Ohio Revised Code Chapter 4121. or 4123., whichhe/she now has or which he/she hereafter claim to have, whether known or unknown by reason of or in any mannergrowing out of the claims or parts thereof set forth above. The injured worker further understands and agrees that anyamount paid pursuant to this agreement is subject to any valid court-ordered chiLd suppurt. The persons invoLved withfiling this settlement agree that if any claim(s) or part of any claim(s) being settted has been recognized or allowed,then the cost of all medical services, hospital bitLs, drugs and medicines with date(s) of service or filling Df relatedprescriptions (not to exceed a 30-day supply)' provided to the injured worker before the effective settlement date,shall be the responsibility Df the state insurance fu'nd, provided such costs result from the allowed conditions Df thecfaims and are properly payable under current medicaL payment guidelines. The costs of inedicaL services hospital bills,drugs and medicines (not to exceed a 30-day supply) provided to the injured worker on or after the effective date ofthe settLement date are the responsibility of the injured worker.

[email protected] initiaLing this box, the injured worker acknowledges he or she has read and understands the above

Also as set forth above, the injured worker understands that any settlement amounts allocated for future medicalservices must be used for medical services befnre Medicare will consider payment for services for the conditions of theworkers' compensation claim.

Settlement of any claim(s) included in this agreement in no way impairs BWC's statutory rights to subrogation recovery.ALso, be advised that upon a finding of fraud, the administrator retains the right to rescind this settlement agreementand re-open the claim for an administrative overpayment hearing and referraL for criminaL prosecution.

Njured worker stgnature

f®

Date

Power of Attomey

By signfng below the Injured worker grants a limited power Df attnmey to the attorney of ricord for the puryose of mceiving the warmntissued because Df this

settlemeM egreement.

Injured worker stgnatureIV,

epresentative signeture

Date

Date

b3

Settlement Agreement and Application forApproval of Settlement Agreement

(For state-fund claims onlq)(Self-insured claims file 51-42)

This application shpuld be Bied eo se[tle workeri compensasion tlaims with stase-fund empioyers. Ohio Revised Code 4123.65 aequires seztlement applications be aignedby hnth she injurad worker and the emplayvr, unless the emploiroi is no longer doing business in Ohic.lf the cbim to be settled is e stace-fund daim, and the employer isnuw selLinsudng. the self-insuring empleyer wiB be chaiged dollar for dollei'oi any pertion of the settlement attributed to pest present om Future Bisabled Wnrkeri ReliefFund (UWRF) liebility.

By filing this eppliarien, the injured worker and the employer agrte that xll umesobed issues 11 be suspended. All ongoing compensttion and medical payments,hnwever, will continue until the eF'¢ctive ¢ettiement deta The eHective vet;lemene dxte is the mailing date of the Ohio Bureav of workers' Cempensation ( BWC) appmvatefee4tlementagreement.

Please Note: The perscns involved with filing this settlement agree that if any other daimts) or paR nf any daim(s) heing settled has been recognized ur allowed.then the costof ell mediul services. hospital bills. drves and medirines with date(s) of servlm or FBing of related prescriptiom ( not tn uaed a 30-day [upply) prm5dedto the injrned wnM1er bekre the efhctiv[ eettlement date, shaU be the respondbility of the state Insurance Fund. provided such coAS revuR Imm the xllpwed condiFonsof the claimt and are piopedy payable under current medicnl payment guidelinet. ihe cosh of all medical serJMees, hospitel bills, drugs and medirine with the date(s) ofservice of filling nf releted prescriptions inut to exceed a 30-day tupply) pmvided to the injvred worker on or eRer Ne effective settlement date ere the respunsibility, ufih nj red worker.

By inltialing this box, the injured worker acknowledget he or she has read and undentnnds the above stetemei2

Special Notice to Medicare BeneficiariesMedica¢ does not pey medical bilh for conditions covered by your workers' compensatinn daim.If a settlement of your woderf compenvetion claim is reached,and the settlemtrR apocates certaln xmpunts for future medical enpemes. Medicare duef not pay for those serdces until medicel evyenses related to yourwork-eri compensatipn claim equal the emount nf the lump vum settlement allouted to future medical expenses. Fw additlonal information, please cell the Mediorecoordination pf benefits connactur zt (B00) 999-1118.

InstlYftione

• For Iost.time and medical-only c0ims mail this cumpleted apelication to your nezrest customer senice office.• Call 1-BO0-ONIOBWC Fee the address of yooi loczl eustomer service oFfice.• To settle a claim with a elLinsuring empluyee plezse complete and forward form SI-42, ui conWCtyour self-insunng employer for other fnrms vetting out the egiee-

ment between the lojured wnrker and self-in¢uring employer.• Ta ladlitate settlement of this chin, please fornerd eny uncai; bills to your managed <are orgxnfzxtion.• Indude a list of any unpaid bilB you are aware of or ettach copies of any unpaid bllh or statements.

Applicanon for Appreval of Settlement AgreementThe injured worker and employer, as egreed to below, make aaolicafion to BWC For approval nf a final settlement in the injured workers claim(s).

Parties to the ClaimInjured worker name

Bruce SmithSndalSecurit9 number

293-38-1368Oate of birth

3/18/45Phnne number

330/743-0805ALdreas

1639 Forestview DriveCity State

Youngstown OH71P code

44505-3207Injured worker representaRve name

Attorney Gary ZamaryI.O. oumber

016467-90Phone number

330/726-1654Address

Post Office Box #3965City

Young stownstah

OHlL rcde

44513-3965Employer name

Mahonin Count yRisk number

35000006-0Fax number Phone number

AEdrees

21 Wst Boardman ST (1200City

YoungstownState

OHuP code

44503-1416Employer representafive name .Attorney Elizabeth Philli p s

Fa number)

Phone number

Addrtss

21 W Boardman St, #600City

Youn stownStete

OHllP code

44503-1426Informatlon on other relevant employers is attaahed O Yes H.

Claim s to be ]ncluded ) n SettlementClaim Number• Requested amount for

complete settlzment••Proposed allacatien ofrequestedsettlementamount

Indemni Prescriptien dru s Medinl

0 -821 04 2 500.OD

-listxnyclaimsspecificallyesdudedhamsettlemeneAll clalms arising out of Case #04AP-1094 F••Please explain any request for a pertial settlement Tenth Dist Ct of Appeals , Beck v IndustrialCase #08-0707, Supreme Court.of DH, Beck v. Industrial Commission

Ctearly set forth the dreumstences by reason of which the proppsed settlementit deemed desirzble.

After fully discussing this matter with my attorney, I have decide

that it would be in my best interest to settle this claim. Addi-

tionally, I will be able to use the proceeds from the settlement

of my claim to nay down my personal debt and use for living ex-penses-

Has information on other reltvant claims been actached?q Yes [XNo

Are you rereiving, or have you zpplied for Medicare 6enefits?q Yes $f No

Are you reaiving mediol treatment at this time?q Yes q No

Whn is your treating physirian(s)? Wages at time of injury?

Are you currentlyworking?q Yea fr1No

lf yes, who is your present employer? W hat Is yeur pratnt occupation? What are your present wages?

BWC-1372 (Rev. 2C-24D

anklin City,01ommission and

GL-1

UNREPORTED CASES

Get a Document - by Citation - 2006 Ohio 6738 Page 1 of 7

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2006 Ohio 6738, *; 2006 OhiD App. LEXIS 6633, **

Ohio Service Group, Inc., Plaintlff-Appellant, v. Integrated & Open Systems, L.L.C. et at., Defendants-Appellees.

No. 06AP-433

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2006 Ohio 6738; 2006 Ohio App. LEXIS 6633

December 19, 2006, Rendered

PRIOR HISTORY: [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 05CVH-04-4223).

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff employer's affiliate sued defendants, an afFlllate's former employee and a competitor, inthe Franklin County Court of Common Pleas (Ohio) for trade secret misappropriation, and related claims, and an agreedjudgment was entered, which the affiliate moved to enforce. The affiliate also sought injunctive relief, which was denied,after whlch the motion to enforce the judgment was denied without a hearing. The affiliate appealed.

OVERVIEW: At the end of the hearing on the affiliate's preliminary injunction motion, the trial court allowed the affiliate toconduct discovery on its motion to enforce the judgment, and referred the matter to a magistrate. The appellate court heldwhen the trial court did not issue an order consolidating a hearing on the merits of the motion to enforce the judgment withthe preliminary Injunction hearing, under these facts, the lack of such notice before ruling on the motion to enforce wasprejudicial error. Because the trlal court said it would defer ruling on the merits of the affillate's motion to enforce and wouldlet the affiliate conduct discovery and present further evldence, the court erred to the affiliate's prejudice by denying itsmotion without giving it a chance to present evidence after dlscovery. Because the court Inexplicably entered judgment onthe merits of the motion to enforce after saying it would defer such a ruling, the trial court did not afford the affiliate ameaningful opportunity to be heard, and deprived it of procedural due process.

OUTCOME: That portion of the trial court's judgment that denied the affiliate's motion to enforce the agreed judgment wasreversed. The trial court's denlal of the affiliate's motion for a preliminary injunction or temporary restraining order wasaffirmed. The matter was remanded to the trial court.

CORE TERMS: Injunctive relief, restraining order, common pleas, preliminary injunction, temporary, Injunction, notice,discovery, defense counsel, consolidate, verified, expired, meaningful opportunity, opportunity to present, prejudicial error,defer, counsel informed, haven't, course of law, full trial, assignment of error, consolidation, shareholder, Irreparable,Injunctive, deprived, order of reference, supporting documentation, presentation, settlement

LEXISNEXIS® HEADNOTES EHide^

> Gene21 Overvlew ^IC stftuE I L > Bill of Riahts > Ftinda mental > P d I D PrRMS

ConWm" I L > 5t t C stlt tl I O ti+J

yNljt Ohio Const . artI,y 16 provides, inter alia, that every person who sustains a legal injury "shall have remedy by duecourse of law." The "due course of law" provlsion in art. 1, § 16 is the equivalent of the "due process of law"provision in U S Const . amend. XIV. More uke mis Headno e

^tu^nalLa > BIH of RI hts > Funeamentat Rlahts > FFOCetlural Due Process > Scone or FratecHoAxN2+Due process requires, at a minimum, that absent a countervailing state interest of overriding slgnlFlcance, persons

forced to settle their claims of right and duty through the judicial process must be glven a meaningful opportunity tobe heard. Wherever one is assailed in his person or his property, there he may defend. Due process does not, ofcourse, require that the defendant in every civil case actually have a hearing on the merits. A state, can, forexample, enter a default judgment agalnst a defendant who, after adequate notice, fails to make a timelyappearance or who, without justlfiable excuse, violates a procedural rule requiring the production of evidencenecessary for orderly adjudication. What the Constitution does require Is "an opportunlty granted at a meaningfultime and In a meaningful manner" "for (a) hearing appropriate to the nature of the case." The formality andprocedural requisites for the hearing can vary, depending upon the importance of the interests involved and thenature of the subsequent proceedings. In short, "within the limits of practicability," a state must afford to allindividuals a meaningful opportunity to be heard if It is to fulfill the promise of the Due ProcessClause. Mo re uke Thl Hea dnate

Civil Prucedure > Remedies > IDjunctluns > n ral Ov rvl w ruk

C'v'I Proredure > Remedles > Inlunctlons > Preliminary & Temnor

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HN3±Under Civ. R. 65, a trial court has discretionary power to advance a trial on its merits and consolidate the trial with ahearing on a preliminary injunction to prevent two hearings and save time and expense for the court and parties.Civ. R. 55(B)(2). However, it is generally improper to dispose of a case on the merits following a hearing for apreliminary injunction without consolidating that hearing with a trial on the merits or otherwise giving notice tocounsel that the merits would be considered. Before consolidation, the parties should normally receive clear andunambiguous notice of the court's intent to consolidate the trial and the hearing either before the hearingcommences or at a time which will still afford the parties a full opportunity to present their respectivecases. More Like This Headnote

Llv'I Pro[edure > Remedies > Iniunctions > General Overview *sS

Clvil Procedure > Remedies > Iniunction5 > Preliminarv & Temoorarv Iniunctions

H^a± Civ. R. 65(B) simply does not permit an advancement and consolidation of a trlal on the merlts at a preliminaryinjunction hearing without an order of the trial court. The purpose of the order is obviously to notify both parties sothat they can prepare their respective cases accordingly as there are fundamental differences between a trial on themerits and a hearing for a preliminary injunction. A preliminary injunction is a provisional remedy and requires thatthe plaintiff demonstrate that he is entitled to the relief demanded, i.e., the preliminary injunction, and that suchrelief consists of some act that during the litigation would produce irreparable injury to the plaintiff. The plaintiffmust also show a substantial likelihood of success on the merits, whether the issuance of a preliminary injunctionwould cause substantial harm to others, and whether the public interest would be served by issuing a preliminaryinjunction. An action on the merits involves very few, if any, of the aforementioned issues. More Llke This Headnote

Civil Procedure > Remedies > Iniunctions > Permanent Iniunctions

Civil Procedure > Remedies > Ijunct'ons > Prel'm"nary &Temporary Injun[sro,ns

Civil Procedure > Remedies > Iniunctions > Temporary Restraining Orders `eJ

Hns^+,In Ohio, Injunctions are separated into three categorles: (1) the temporary restralning order, which is issued exparte without notice in an emergency situation to last only until a hearing can be set; (2) the preliminary injunctionissued with notice and after a hearing to malntaln the status quo until there can be a full trial on the merits; and, (3)the permanent injunction issued after a trial on the merits. More Like This Headnote

COUNSEL: Thomas P. Sexton .8f, for appellant.

Means, Blchimer, Burkholder & Baker Co., L.P.A., and Robert M. Morrow .*, for appellees.

JUDGES: PETREE, J. KLATT, P.J., and TRAVIS, J., concur.

OPINION BY: PETREE

OPINION

(REGULAR CALENDAR)

PETREE, J.

[*PS] Plaintiff-appellant, Ohio Service Group, Inc., appeals from a judgment of the Franklin County Court of Common Pleasthat, among other things, denied plaintiffs veriFled motion to enforce an agreed judgment. Because the common pleas courtdeprived plaintiff of procedural due process, we reverse in part the judgment of that court and remand the matter.

[*P2] In a verified Flrst amended complaint that sought monetary and injunctive relief, plaintiff sued Integrated & OpenSystems, L.L.C., Roger G. Edwards, Marsha L. Edwards, and W.E. Monks & Company in the court of common pleas. Plaintiffalleged, among other things, that: ( 1) Roger G. Edwards was a former employee of an affiliated company of plaintiff; (2) RogerG. Edwards was a former shareholder in Ohio Service Group, Inc.; (3) Integrated & Open Systems, L. [**2] L.C., wasestablished wlth Marsha L. Edwards as the company's authorized representatlve and Roger G. Edwards as the company'sstatutory agent; (4) Integrated & Open Systems directly competed against plaintiff; (5) defendants misappropr(ated tradesecrets from plaintiff In violation of A C 1333.61 et seq; (6) defendants violated a non-competition provision of a shareholderagreement; (7) defendants disclosed confidential information thereby breaching a share reduction agreement; (8) Roger G.Edwards breached a fiduciary duty to plaintiff; and (9) W.E. Monks & Company, which hired Mr. Edwards as an employee,actively conspired with the other defendants to gain an unfair competitive advantage against plaintiff.

[*P3] After engaging in settlement discussions, the parties eventually reached a settlement agreement, which wassubsequently incorporated into an agreed judgment by the common pleas court. Claiming that defendants violated the agreedjudgment, plaintiff later moved to enforce the agreed judgment; sought sanctions against defendants, and requested an oralhearing. In a separate motion, plaintiff also moved for an injunction and temporary restraining [**3] order against defendants.

[*P4] On January 19, 2006, the trial court held a hearing with the ostensible purpose of adjudicating plaintiff's request forinjunctive relief. Following this hearing, the trial court Issued an order that referred the case to a magistrate of the court. Also,after hearing of January 19, 2006, defendant Roger G. Edwards moved to enforce the terms of the agreed judgment and soughtsanctions agalnst plaintiff. For good cause shown and by agreement of the parties, the magistrate scheduled a hearing for May23, 2006.

[*P5] However, on Aprll 10, 2006, after the trial court had referred the case to a magistrate, It rendered a decision that not

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only denied plaintiffs motion for an injunction and restraining order, but also denied plaintiffs motion to enforce the agreedjudgment. I Following the trial court's judgment, the magistrate vacated her order that scheduled a hearing for May 23, 2006.

FOOTNOTES

i Because the common pleas court's judgment failed to make a ruling as to defendant Roger G. Edward's motion that soughtto enforce the agreed judgment and impose sanctions against plaintiff, we presume the trial court overruled this motion.

See, generally, Kostelnik v. Heloer, 96 Ohio St. 3d 1, 2002 Ohio 2985, at P13, 770 N.E.2d 56 reconsideration denied, 26Ohio St. 3d 1489 2002 Ohio 4478, 774 N E 2d 764 citing State ex re! V Cos . v. Marshall (1998) 81 Ohio St.3d 467, 4691998 Ohio 329 692 N E 2d 19B ( stating that "[a] motion not expressly declded by a trial court when the case is concluded isordinarily presumed to have been overruled"); Portofe v Portofe 153 Ohio Ano 3d 207 2003 Ohio 3469 at P16 792N.E.2d 742.

[**4] [*P6] From the trial court's judgment, plaintiff now appeals and assigns a single error for our consideration:

THE TRIAL COURT'S FAILURE TO CONDUCT HEARING PRIOR TO DECISION DENIES APPELLANT THE PROCEDURAL

DUE PROCESS IT IS GUARANTEED UNDER ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

[*P7] In this appeal, plaintiff only challenges the trial court's denlal of Its motion to enforce the agreed judgment; plaintiffdoes not challenge the trial court's denial of plaintiffs motlon for an injunction and temporary restraining order.

[*PB] HNi,t"Section 16 Article I of the Ohlo Constitution provides, interalia, that every person who sustains a legal injury

'shall have remedy by due course of law.' " Sorrell v. Thevenir (1224). 69 Ohio St.3d 415 422 1994 Ohio 38 633 N.E.2d 504.

The "due course of law" provision in Section 16 . Article I of the Ohio Constitution "is the equivalent of the 'due process of law'provision in the F rtenth Amendment to the United States Constitution." Sorrell at 422, citing Direct Plumbing Su I Co. v.

Dayton (1941) 138 Ohio St. 540, 544. 38 N.E . 2d 70; see, also, State ex re! Plain Dealer Pub. Co . v. Floyd, 111 Ohio St. 3d 56

2006 Ohlo 4437, at P45 855 N E 2d 35 [**5] citing State v. Havden. 96 Ohio St. 3d 211. 2002 Ohio 4169, at P6. 773 N.E.2d

502, certiorari denied (2003) . 537 U S 1197 123 S . Ct. 1265 154 L. Ed. 2d 1035 (stating that "[t]he right to procedural dueprocess is required by the Fourteenth Amendment to the United States Constitution and Section 16 Article I of the Ohio

Constitution").

[*P9] In Soddie v Connecticut (1971) 401 U 5 371 91 S.Ct. 780. 28 L. Ed . 2d 113, the Supreme Court of the United States

explained:

HNr* **[D]ue process requires, at a minimum, that absent a countervalling state interest of overridingsignificance, persons forced to settle their claims of right and duty through the judicial process must be given ameaningful opportunlty to be heard. Early in our jurisprudence, this Court voiced the doctrine that '[w]herever oneis assailed In his person or his property, there he may defend' ***.

•**

Due process does not, of course, require that the defendant in every civil case actually have a hearing on the merits.A State, can, for example, enter a default judgment against a defendant who, after adequate notfce, fails to make atimely appearance [**6] * * * or who, without justifiable excuse, violates a procedural rule requiring theproduction of evidence necessary for orderly adjudication ***. What the Constitution does requlre Is 'anopportunity *** granted at a meaningful time and in a meaningful manner' * * * 'for (a) hearing appropriate tothe nature of the case' ***. The formality and procedural requisites for the hearing can vary, depending upon theimportance of the interests involved and the nature of the subsequent proceedings. * * * In short, 'within the limitsof practicablilty,' * * * a State must afford to all individuals a meaningful opportunity to be heard if it Is to fulflli thepromise of the Due Process Clause. * * *

Id at 377-379. (Footnotes omitted.)

[*P10] HN rUnder Civ R 65, a court has discretionary power to advance a trial on its merits and consolidate the trial with ahearing on a prellminary injunction to prevent two hearings and save time and expense for the court and parties. Civ R 65(B)M; staff notes, Civ R 65. However, "it is generally Improper to dispose of a case on the merits following a hearing [**7] for apreliminary injunctlon without consolidating that hearing with a trial on the merits or otherwise giving notlce to counsel that themerits would be considered." Seasoninos Etcetera Inc v. Nay (Feb 23 . 1993) Franklin Aop No 92AP-1056 . 1993 Ohio App .LEXIS 1182, citing George P Ballas Buick-GMC. Inc v. Taylor Buick Inc. (1982) . 5 Ohio Aoo 3d 71 5 Ohio B. 182 449 N E 2d5D2; Turoff v Stefanac (1984) 16 Ohio Apn 3d 227. 16 Ohio B. 243. 475 N.E.2d 189. "Before consolidation, the parties shouldnormally receive clear and unambiguous notice of the court's Intent to consolidate the trial and the hearing either before thehearing commences or at a time which will still afford the parties a full opportunity to present their respective cases." @d.¢fEdn. Ironton City Schools v Ohio Deot nfEdn (June 29 , 1993) Lawrence App No. CA92-39 , 1993 Ohio Apn LEXIS 3476 .citing Univ, oof Texas v Camenisch (1981) . 451 U 5 390 , 395 101 S.Ct. 1830 68 L. Ed. 2d 175; Warren Plaza v. GiantEagle.

Inc (June 15 , 1990) . Trumbull App . No. 88-T-4122. 1990 Ohio App . LEXIS 2381. jurisdictional motion allowed, 55 Ohio St. 3d705. 562 N.E.2d 896. appeal dismissed (1992) . 63 Ohfo St.3d 497. 589 N.E.2d 23. Cf. Bd. of Edn. Ironton City Schools (statingthat "[t]here is no [**8] provision that allows a court to consolldate a hearing on the merits with an application for atemporary restraining order. However, when all of the partles had notice of, were present at, and participated in the hearing,the court may treat the application for a temporary restraining order as one for a preliminary injunction"). (Footnote omitted.)

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[*P11] In InternatlAssn ofFirefiohters(IAFF), Local336v Middletown (Aua 31 1983) ButlerAoo No . CAB3-02-0201983 Ohio App LEXIS 15897, the Twelfth District Court of Appeals remarked:

Hr`' rCiv.R. 65(8) simply does not permit an advancement and consolidation of the trial on the merits at thepreliminary Injunction hearing without an order of the trial court. The purpose of the order is obviously to notify bothparties so that they can prepare their respective cases accordingly as there are fundamental differences between atrial on the merits and a hearing for a preliminary injunction. A preliminary injunction is a provisional remedy andrequires that the plaintiff demonstrate that he Is entitled to the relief demanded, i.e., the preliminary injunction, andthat such relief consists of some act that during the litigation [**9] would produce Irreparable injury to theplaintiff. * * * The plaintiff must also show a substantial likelihood of success on the merits, whether the issuance ofa preliminary Injunctlon would cause substantiai harm to others, and whether the public interest would be served byissuing a preliminary injunction. *** An action on the merits Involves very few, if any, of the aforementionedissues.

[*P12] Here, the trial court did not Issue an order that consolidated a hearing on the merits with a hearing for a preliminaryinjunction. As discussed within, under the facts and circumstances of this case, the court's failure to provlde such notice beforedisposing of the merits of the case, and other errors by the common pleas court, constitute prejudicial error. Cf. Georae P.Ballas Buick-GMC, Inc.. suora (holding that a trial court did not err by dismissing a case following a hearing for injunctive reliefeven though the court failed to consolidate the hearing for injunctive relief with a hearing on the merits because, after anextensive hearing, the evidence did not reveal any conflict of material that justlFled a full trial on the merits); Lend-A-Paw FelineShelter Inc. v Lend-A-Paw Foundation of Greater Toledo, Inc. (Nov 9 . 2001) Lucas Aoo No. L-01-1052 2001 Ohio ADoLEXIS 5019 [**10] (revisiting George B. Ballas Buick-GMC, Inc. and concluding that the relevant holding in George B. Ba!!asBuick-GMC, Inc. should be limited to the facts In that case.).

[*P13] At the beginning of the hearing on ]anuary 19, 2006, counsel for the parties acknowledged that the only matter beforethe court at that hearing was plaintifPs request for injunctive relief. See, generally, Bd. of Edn. Ironton City Schools, suora(discussing injunctive relief under Ohio law). I

,FOOTNOTES

2 In Bd. of Edn. Ironton City Schools, the court observed:

Hw rIn Ohio, Injunctions are separated into three categories: (1) the temporary restraining order, which Isissued ex parte without notice in an emergency situation to last only until a hearing can be set; (2) thepreliminary Injunction issued with notice and after a hearing to maintain the status quo untll there can be a fulltrial on the merits; and, (3) the permanent Injunction Issued after a trial on the merits.

Id., citing 2 McCormac,Anderson's Ohio Civil Practice (1991) B42, Section 75.01.

[**11] [*P14] Specifically, in remarks to the court prior to the presentation of any evldence, plalntifPs counsel Informedthe court that, besides filing a motlon to enforce the agreed judgment, "[w]e also requested, and it's before the Court today, amotion for injunctive relief and restraining orders[.]" (Tr. 4.) Prior to the presentation of evidence, defense counsel had thlsexchange with the court:

[Defense Counsel]: * * * On behalf of all the defendants, I want to point out a couple of things In the agreedjudgment entry, because what we're here on is injunctive relief.

THE COURT: Uh-huh,

[Defense Counsel]: The entry itself, the Injunctive provlsions included in the entry expired four days ago, so theyare gone.

I don't think this Court necessarily has the unilateral ability to just extend the injunctive relief past what is alreadyagreed to in the order.

***

We're not here today on damages, and for certain we're denying that there's any violation of the agreed judgmententry, period.

s**

So our posltlon is really twofold. One, this is a claim for injunctive relief. We don't think that Is appropriate at thispoint [**12] because the Injunctive provislons of the agreed entry have already expired.

If they felt this strongly about this, they should have filed these motions back in early November when Mr. Sextonfirst called me ***. They didn't do anything for two months.

Why did they wait? The injunction has explred as built Into the contract, and we're not violating the agreedjudgment entry.

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From our standpolnt, we're asking the Court to deny this, and if they want to present evidence later about a breachof contract, an agreed judgment entry, I think that's a damage issue.

(Tr. 6-8.)

[*Pi5] During the hearing, while explaining to the court a rationale for a question to a witness, plaintifrs counsel also hadthis exchange with the court:

[Plaintiffs counsel]: Just so long as an issue as to the -- Your Honor, the reason I bring it up is -- the reason withrespect to any kind of injunctive relief, I got to show irreparable harm.

THE COURT: Go ahead. Go ahead.

. (Tr. 41-42.)

[*P36] After witness testimony had been presented, the trial court seemingly acknowledged that piaintiffs motion for aninjunction or a temporary restraining order, [**13] or both, was the matter before the court at that time. The court stated:

This matter Is for a motion for injunction and temporary restraining order. The Court at this time will not Issue a

TRO.

Needless to say, the time limit for the operation of the agreement is expired. The thing the Court will do is take thematter under advisement and will issue a written decision addressing the remaining issues.

If there's found to be violation of the agreement, then the appropriate sanction would be money damages and notnecessarily an extension of the noncompete requirements here.

(Tr. 91-92.)

[*P17] After the court's announcement, plaintiffs counsel inquired of the court as follows:

[Plaintiffs Counsel]: Your Honor, if we want to submit It, this is for the purpose of the TRO or are you going todeclde the entire matter?

THE COURT: It's going to be everything that you presented to me in this motion. I'm going to --

[PlaintifF's Counsel): The motion for temporary restraining order?

THE COURT: Yes.

[Plaintiff's Counsel]: And I also had a motlon to enforce, which was referred -- you put an order of reference on overto [**14] Magistrate Browning.

THE COURT: Yeah.

[Plaintiffs Counsel]: So that's still out there. I just want to make sure I understand --

THE COURT: Order of reference to Magistrate Browning for what?

[Plaintifrs Counsel]: For the motion to enforce the terms of this agreement, what we set today for, as I understoodit, was my -- I then also filed a motion for injunctive rellef temporary restraining order. I just want to make sure--

THE COURT: Okay. Let me ask you this: What more would you present to me in order to enforce the agreement?

[Plaintiffs Counsel]: I would -- I have made document requests, which I prepared today, to see exactly what[Defendant Roger G. Edwards] is invoicing Columbus Public Schools for and, Your Honor, with all due --

THE COURT: The only thing I saw was that one Invoice with numbers on it, unless you want the supportingdocumentation for it.

[Plaintiffs Counsel]: Absolutely. And It's our -- obvious -- I'm not going to beat a dead horse. You understand wherewe're coming from. We think it's a separate deal and cut It out that way. That would be -- that would be on firstblush after today.

THE COURT: [**15] Let me ask you this, Counsel: Can you provide him the supporting documentation for theInvoices for Columbus Public Schools?

[Defense Counsel]: To the extent that It exlsts.

THE DEFENDANT: There's not a whole lot.

THE COURT: What exists?

THE DEFENDANT: There's not a lot. My time.

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THE COURT: Just your time?

THE DEFENDANT: Just my time.

THE COURT: Please get that to him expeditiously so we can still comply wlth the seven days, and basically what Ipropose to do is go ahead and resolve this once and for all.

One of the problems -- not a problem, but Magistrate Browning is off, and she will be off probably another eightweeks or so.

[PlalntifPs Counsel]: Okay.

THE COURT: So rather than turn it over to the magistrate that's covering now that will have to be educated on thewhole thing, it may be simpler if I go ahead and resolve it myself.

[Plaintiffs Counsel]: Just, your Honor, for the record purposes and your information, I thought today was -- It wasour understanding it was set today for temporary restraining order.

THE COURT: Let me ask you again: What else do you want to provide me to cover the whole shooting [**16]match?

[Plaintifrs Counsel]: Well, your Honor, I haven't had -- it's been -- I haven't had an opportunity to do properdiscovery beyond -- I don't think I can -- I don't think it's fair for the Court to ask me that given the fact that Ihaven't had an opportunity to do but last minute chasing --

THE COURT: Fine, fine, counsel. I'll just cover the TRO. I'll leave the other matter open. All right?

[Plaintifrs Counsel]: Okay. Thank you.

THE COURT: We'll just cover the TRO, and then we'll allow you to proceed and do whatever else you need to do wlthrespect to preparation and getting ready to do whatever you feel is appropriate with respect to enforcing theagreement or what have you.

[Plalntiffs Counsel]: Thank you.

THE COURT: Anything else?

[Defense Counsel]: No, your Honor.

THE COURT: All right. Thank you ail.

[Plaintifrs Counsel]: Thank you very much, your Honor.

(Tr. 94-97.)

[*P18] At the beglnning of the hearing, the parties' counsel informed the court of their understanding that plaintifPs requestfor injunctive rellef was the issue before the court. Also, at the conclusion of the hearing on January 19, 2006, after [**17]plaintiffs counsel informed the court that plaintiff required further discovery, the court Indicated that it would defer ruling on themerits of plalntiffs case and allow plalntiff to conduct further discovery and present additional evidence. After the hearing ofJanuary 19, 2006, through an order of reference, the court then referred the case to a magistrate of the court.

[*P19] Because the trial court informed the parties that It would defer rvling on the merits of plaintiff's motion to enforce theagreed judgment and that it would allow plalntiff to conduct further discovery and present additional evidence, we find that thecourt erred to the prejudice of plaintiff by denying plaintiffs motion to enforce the agreed judgment without providing plaintiffan opportunity to present additional evidence following discovery.

[*P20] Furthermore, because the trial court denied plaintiff'smotion to enforce the agreed judgment without providingplaintiff wlth an opportunity to present additional evidence as to the merits of plaintiffs claim, and because the common pleascourt inexplicably entered judgment on the merits of plalntifrs motion to enforce the agreed judgment [**18] after previouslyindicating It would defer such a ruling until after plaintiff had an opportunity to pursue further dlscovery and present additionalevidence, we hold that the common pleas court falled to afford plaintiff a meaningful opportunity to be heard, and therebydeprived plaintlff of procedural due process. Accord Bd. of Edn. Ironton Ci Schopls. suora (concluding that a trlal court's failureto follow the procedure set forth in Civ.R. 651`BI1-27 denied the appellants due process and constituted prejudicial error). Wetherefore sustain plaintifrs sole assignment of error.

[*P21] Accordingly, having sustained plaintiffs sole assignment of error, we therefore reverse that portion of the judgment ofthe Franklin County Court of Common Pleas that denied plaintiffs verifled motion to enforce an agreed judgment. Because inthis appeal plaintiff has not challenged the trial court's denial of its motion for a preliminary Injunction or temporary restrainingorder, or both, we leave undisturbed that portion of the common pleas court's judgment that denied plaintiffs request forinjunctive rellef. Furthermore, having concluded that the common [**19] pleas court's denial of plaintlfPs verified motion toenforce the agreed judgment was prejudicial error, we remand the matter to that court for further proceedings in accordancewith law, and conslstent with this opinion.

Judgment reversed in part; cause remanded.

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KLAIT, P.7., and TRAVIS, J., concur.

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1988 Ohio App. LEXIS 324, *

Lawrence L. Van Wie, Sr. Plaintiff-Appellee v. Mary Kreppner Defendant-Appellant

No. 53352

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

1988 Ohio App. LEXIS 324

January 28, 1988, Decided; Rehearing denied July 13, 1988

PRIOR HISTORY: [*1] Clvll Appeal from Court of Common Pleas Case No. 63,074

DISPOSITION: AFFIRMED.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant debtor appealed an order from the Court of Common Pleas of Cuyahoga County(Ohio), which found the debtor in contempt for failing to comply with the terms of a court-approved settlement agreement inan action brought by plaintiff creditor.

OVERVIEW: The creditor brought sult on two promissory notes. The parties reached a settlement agreement, which wasreduced to writing. The trial court journalized a stipulation of dismissal and judgment entry, as well as a journal entry thatset forth the complete terms of the settlement. The debtor failed to comply with the terms of the settlement agreement, andthe creditor filed a motion to show cause why the debtor should not be held In contempt. An order granting the creditor'smotion to show cause was affirmed on appeal. The debtor still did not comply, and the trial court granted the creditor'smotion to enforce the finding of contempt. The court affirmed, observing that the initial contempt finding was not a finalorder and that only the enforcement order was appealable. The debtor's fling of a notice of appeal did not preclude acontempt finding. By journalizing the terms of the settlement agreement, the trial court made the agreement an enforceablejudgment. The debtor was not denied due process of law. The trial court did not abuse its discretion in denying acontinuance.

OUTCOME: The court affirmed the order that found the debtor in contempt.

CORE TERMS: contempt, settlement agreement, journalized, vacate, assignments of error, journal entries, settlement,scheduled, notice, overruling, contempt proceedings, contempt order, jail, contempt citation, purge, process of law, notice ofappeal, failing to comply, interlocutory, personal property, jurisdiction to enter, opportunity to defend, abuse of discretion,continuance, complied, sentence, assigned, order granting, failure to comply, inability to pay

LEXISNEXIS® HEADNOTES 6 H7de

Cvll Procedure > Remedies > Iniunctions > Contemot tiGvil Procedure > Sanrtlons > General Overview C

Ovil Procedure > ApggaiS > Aooellate Jurisdict'on > Final Judament Rule w:

hrvl_+ Contempt of court consists of two elements. The first is a flnding of contempt of court and the second is theimposition of a penalty or sanction, such as a jail sentence or fine. Until both a finding of contempt is made and apenalty Imposed by the court, there is not a final order. The mere adjudication of contempt is not flnal until asanction is imposed. An order in a contempt proceeding is not a final order if it merely reaffirms a previous decreeand orders compliance therewith by a certain date. More Llte-mis Headnote

C'v"I Procetlure >)udaments > Entrv af )udoments > Enforcement & Fxemtion > Writs or Executlon P9

CivII Procedure > Judgments > Entrv of ludaments > Stays of Proaedinas > General Overview ^

Clvll Procetlure > Appgpls > Aoaellate )urisdlctlon > Lower Court Judsdi2ion kD

HAr=d:In the absence of a stay of execution, the mere filing of a notice of appeal from the judgment of the trial court doesnot divest the trial cOurt of jurisdiction to enforce its judgment. More Like TNs Headnote I ShepaNlze, RestrlR ay Headnote

Ivil Pro mtlur2 >°ettl^m^nt= > Generel Overv'ew IV.)

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G t> ourt > AuthodN to Adiudicate !irN3iA trial court Is vested with the inherent power to take necessary action to see that its order as spelled out in the

judgment entry is complied with by the parties. More uke Thls Headnote

'vil Pro d r > Judaments > prgdps'on & Effect of Judgments > Law of the Case c

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xN4+,Under the doctrine of the law of the case, the decision of an appellate court in a prior appeal will ordinarily befollowed in a later appeal will ordiharily be followed in a later appeal in the same case andcourt. More Like This Headnote

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qvll Procetlure > Remedies > Iniunctions > Contemot `o!If,nsyA court has authority both under Ohio Rev. Code Ann. 6 2705 02(A) and on the basis of its inherent powers to

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CGv'I Procedure > Remetlles > Iniunctions > Contemot tD

Const'tut'onal Law > Bill of R'ahts > Fundamerkal Riohts > Procedural Due Process > S<ooe or Protect'on ^yN6^+_A show cause order which apprises a defendant of the nature of the charge agalnst him so that he may prepare a

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xnz±The granting or denying of a continuance of a scheduled trial or hearing is a matter within the sound discretion ofthe trial court, and will be disturbed on appeal only for an abuse of discretion. Ohio C.P. Superintendence R. 7(A)."Abuse of discretion" connotes more than an error of law or judgment; it implies that the trial court's attitude isunreasonable, arbitrary or unconscionable. Furthermore, abuse of discretion, even If shown, will not constitutereversible error unless it effects an injustice to one of the parties. More Like This Headnote

COUNSEL: Brlan M. Fallon, Esq., John L. Dowling, Esq., for Plaintiff-Appellee.

John R. Vintilla, Esq., for Defendant-Appellant.

7UDGES: PATTON, J., McMANAMON, P.J., MATIA, J., CONCUR.

OPINION BY: PATTON

OPINION

JOURNAL ENTRY and OPINION

PATTON, l.:

This is the thlyd appeal by the defendant-appellant Mary Kreppner (hereinafter "defendant") arising out of defendant's refusal tocomply with the terms of a 1985 court-approved settlement agreement. The following facts give rlse to this appeal:

On August 17, 1983, plaintiff-appellee Lawrence L. Van Wie, Sr. (hereinafter "plaintiff ) commenced this action againstdefendant, alleging that defendant owed him $ 180,173 plus interest. The debt was alleged to be the result of two promissorynotes signed by defendant on July 11, 1983.

On August 30, 1983, the probate court declared defendant mentally incompetent and appointed Lisa M. Pocker to be guardian ofthe person and estate of the defendant.

On January 20, 1984, the trial court entered a summary judgment In favor of plaintiff. Later that year, this Court reversed thetrial court's order granting summary judgment and remanded the case for further proceedings. [*2] See Van Wie v. Kreppner( Nov. 29, 1984), Cuyahoga App. No. 48197, unreported.

After the case was remanded, a trial court was scheduled for September, 1985. But after negotiations between parties in thepresence of the court, the parties reached a settlement agreement which was reduced to writing on September 17, 1985. OnSeptember 19, 1985, the court journalized a"Stipulation of Dismissal and Judgment Entry" and a"Journal Entry," which setforth the complete term of the settlement, namely:

1. The defendant shall pay to plaintiffs the sum of $ 50,000.00 cash not later than December 1, 1985.

2. The defendant shall return all items listed and as designated in the attached Exhibit A entitled "Revised Inventory of MaryKreppner." Items not to be returned are designated by delineation.

3. Items to be in the same condition as of date of inspection of same by plalntiff on August 17, 1985.

4. Parties shall enter Into appropriate release consistent with the settlement agreement and dismissal of the case with prejudice,to be execute and presented upon receipt of the monies due hereunder.

Defendant did not comply with the terms of the settlement agreement. Consequently, on December 2, [*3] 1985, plaintiffflied a motion to show cause why defendant should not be held in contempt for failure to honor the terms of the September 19,1985 journalized settlement agreement. On the same day, defendant filed a motion to vacate the court's orders journalized onSeptember 19, 1985. Thereafter, the parties Flled a series of additional motions and briefs concerning the validity of the parties'settlement agreement.

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On lanuary 21, 1986, the trial court held a hearing on the parties' motions. Before on the motions, the court granted defendanta one-week continuance to January 28, 1986 to present additional evidence in support of her position.

On January 31, 1986, the trial court entered a series of orders. In particular, the court denied defendant's motlon to vacate andgranted plaintlffs motion to show cause. The court directed defendant to surrender the tangible personal property and to deliverthe settlement proceeds pursuant to the terms of the parties' settlement agreement. The court's half-sheet journal entrles ofJanuary 31, 1986 were later collected and restated in a single journal entry, which was journalized on March 3, 1986.

On February 28, 1986, defendant filed a notice [*4] of appeal from the trial court's January 31, 1986 journal entries. Thiscourt affirmed the trial court's order denying defendant's motion to vacate the September 19, 1985 journalized settlementagreement. The Court also found that the terms of the settlement agreement could be enforced by way of contemptproceedings. See Van Wie v. Kreppner (Aug. 21, 1966), Cuyahoga App. No. 51688, unreported. +

'.FOOTNOTES

i On or about November 19, 1986, these proceedings were stayed pending a ruling on defendant's motion to certify therecord to the Ohio Supreme Court. On or about December 15, 1986, the Ohio Supreme Court overruled defendant's motionto certlfy the record.

When defendant still had not complied with the terms of the parties' journalized settlement agreement on or about September20, 1986, plaintiff fied a motion to enforce the citation of contempt against defendant.

Subsequently, on December 12, 1986, defendant filed a motlon to vacate the trial court's judgment entry of March 3, 1986.Defendant acknuwledged that she learned of the March 3 order by May, 1986. Plaintiff filed memoranda in opposition todefendant's motion to vacate. The court scheduled a hearing on plaintifPs motion [*5] to enforce the contempt citation forJanuary 2B, 1987. A hearing on all other pending motions was scheduled for February 5, 1987.

On February 6, 1987, the trial court journalized a series of orders pertaining to these proceedings. The court overruleddefendant's motion to vacate the finding of contempt as well as defendant's motions to continue the hearing or to stay theproceedings. The court granted plaintifrs motion to enforce the finding of contempt and sentenced defendant's guardian, LisaPocker, to ten days in jail commencing February 12, 1987. The court's order stated that defendant could purge herself ofcontempt before that date by delivering the personal property identified under the parties' joumalized settlement agreement

and by proving an inability to pay the money judgment.

On February 9, 1987, defendant flled her notice on appeal. On February 10, 1987, this court stayed enforcement of defendant'sjail sentence pending the disposition of this appeal. This appeal followed, and defendant raised three assignments of error:

1. THE TRIAL COURT WAS WAS WITHOUT JURISDICTION TO MAKE AND ENTER THE JUDGMENT OF MARCH 3, 1986, AND,THEREFORE, ERRED TO THE PREJUDICE OF THE APPELLANT [*6] IN OVERRULING HER MOTION TO VACATE THAT JUDGMENT.

II. APPELLANT WAS DENIED DUE PROCESS OF LAW IN THAT THE TRIAL COURT FOUND HER IN CONTEMPT OF COURT WITHOUTADVISING HER OF THE PRECISE CHARGES AGAINST HER, AND WITHOUT GIVING HER A REASONABLE OPPORTUNITY TO MEET

THE CHARGES BY WAY OF DEFENSE OF EXPLANATION; THEREFORE, THE GRANTING OF THE MOTION TO ENFORCE THECONTEMPT ORDER AGAINST THE APPELLANT WAS PREJUDICIAL TO THE RIGHTS OF THE APPELLANT.

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN OVERRULING HER MOTION TO CONTINUE THEHEARING OF THE MOTION TO ENFORCE THE CONTEMPT ORDER AND IN DENYING APPELLANTS MOTION TO FIRST CONSIDERAND RULE ON THE MOTION TO VACATE THE JUDGMENT UPON WHICH THE ORDER WAS PREDICATED.

1.

Defendant's first assignment of error contends that the court erred in overruling defendant's motion to vacate the court's March3, 1986 journal entry that found defendant in contempt of court. The assignment of ercor is without merit.

We note initially that the court's March 3, 1986 order citing defendant for contempt was an Interlocutory order. In Chain Bike

Corporation v. Spike 'N Wheel, Inc. (1979) 64 Ohlo Aop. 2d Sz2, this court explained:

m^'=*Contempt [*7] of court consists of two elements. The first Is a finding of contempt of court and the second is theImposition of a penalty or sanction, such as a jail sentence or fine. Until both a flnding of contempt is made and a penaltyimposed by the court, there is not a final order. The mere adjudicatlon of contempt is not final untll a sanction is imposed.

I at 64. See also Cooper v Cooner (1984). 14 Ohio App. 3d 327. An order In a contempt proceeding Is not a final order if itmerely reaffirms a previous decree and orders compliance therewith by a certain date. See Searcy v. Searcy (Oct. 1, 1987),Cuyahoga App. No. 52778, unreported.

In the instant case, the court's March 3, 1986 journal entry only cited defendant for being in contempt of the court's September19, 1985 order that journalized the parties' settlement or sanction against the defendant for her failure to comply with thecourt's previous order. It was not until February 6, 1987 that the court imposed a sanction against defendant for her continuednon-compiiance. At that time, the court sentenced defendant ten days in jail commencing February 12, 1987, but the courtafforded defendant the opportunity to purge herself [*8] of this cuntempt citation.

Thus, the only appealable contempt order in this proceeding was entered on February 6, 1987, and the validity of that order isunaffected by defendant's attack on the March 3, 1986 order finding her in contempt. Slnce the March 3, 1986 order was

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interlocutory, It follows that the court's February 6, 1987 order refusing to set aside the March 3rd order was also interlocutorybecause it did not affect a substantial right of the defendant. See R.C. 2505.02.

Defendant argues that the trial court was without jurisdiction to enter an order on March 3, 1986 when defendant had alreadyfiled a notice of appeal on February 28, 1986. We disagree. It is settled that Hn *in the absence of a stay of execution; themere filing of a notice of appeal from the judgment of the trial court does not divest the trial court of jurisdiction to enforce itsjudgment. See Ohio Prime Meats, Inc. v. Levin (July 29, 1982), Cuyahoga App. No. 44161, unreported; White v. White (1977).50 Ohio Aoo 2d 263. See also ADD R. 7; R.C. 2505.09. But even if we agreed with defendant that the trial court was withoutjurisdiction to enter the March 3, 1986 order, defendant had already been found [*9] in contempt of the journalized settlementagreement on January 31, 1986. Having previously found defendant In contempt of court, the trial court could proceed toimpose an appropriate penalty or sanction on February 6, 1987.

Although it Is not separately assigned as an error, defendant asserts that the trial court could not enforce the terms of theSeptember 19, 1985 journalized settlement agreement by contempt proceedings. This Court expressly rejected the sameargument In a previous appeal of this case, stating:

Appellant's contentions regarding the "private settlement" fails to consider the fact the details of agreement were made part ofthe court's September 19, 1985 journallzed entry. By journalizing the terms of the agreement, the court made the agreementthe judgment of the court. See Soercel v. Sterling Industries (1972) . 31 Ohio St 2d 36 clting Nerndon v Herndon (1971) , 227Ga. 781. HN*"A trial court is vested with the inherent power to take necessary action to see that its order as spelled out in thejudgment entry is complied with by the parties." Vangefos v. Ha(lios (Nov. 7, 1965), Cuyahoga App. No. 49464 (appellant wassell within his rights to file a motion [*10] for contempt In order to Inform the court the settlement agreement was nothonored by appellee). See also 17 Am. Jur. 2d. Contemot 6 34, 52.

Van Wie v. Kreppner (Aug. 21, 1986), Cuyahoga App. No. 51688, unreported, slip op, at 7-8.

M04*Under the doctrine of the law of the case, "the decision of an appellate court in a prior appeal will ordinarily be followed ina later appeal will ordinarily be followed in a later appeal in the same case and court." Nolan v. Nolan (1984). 11 Ohio St. 3d 1 ,4. Our prevlous decision in this case is the law of the case, and we can see no reason to depart from that decision in the instantappeal. HN*"A court has authority both under R C. 2705 02(A) and on the basis of its inherent powers to punish thedisobedience of its orders with contempt proceedings." Zakanv v. Zakanv (1984). 9 Ohio St. 3d 192, syllabus. The exercise ofthls power was appropriate under the circumstances of this case. ,

Accordingly, the first assignment of error is without merit.

II.

Defendant's second assignment of error asserts that she was denied due process of law when the court found her In contemptwithout giving he notice of the charges against her and without giving her [*11] an opportunity to defend against them. Thisassignment of error is meritless.

We note initially that defendant failed to raise her due process arguments below, so could disregard them on appeal. In reCarroll (1985) . 28 Ohio Aoo 3d 6 . 7. Moreover, it is clear from the record that appellant had notice that she was charged withfailing to comply with the settlement agreement and that she was given an opportunity to be heard.

On December 2, 1985, plaintiff field a motion to show cause for defendant's failure to comply with the settlement. Defendant, inturn, attacked the enforceability of the settlement agreement. The court held a hearing on these various motions on January 21,1986. Defendant was given another seven days to present additional evidence, until January 28, 1986. The initial contemptcitation followed on January 31, 1986 when the court entered a show cause order.

More recently, on September 30, 1986, plaintiff field a motlon to enforce the contempt citation due to defendant's continuednoncompliance. Defendant resisted this motion as well and plainly had notice that she was charged with failing to comply withthe settlement agreement. A hearing was scheduled for January [*12] 2B, 1987. The cnurt's February 6, 1987 contempt orderprovided that defendant could purge herself of the contempt by delivering the personal property and by proving an inability topay. Rather than attempt to purge her contempt, defendant elected to take this appeal.

Under these facts, we conclude that defendant was given ample notice that she was being charged with failing to comply thejournalized settlement agreement. See Cincinnati v. Cfncinnati District Council 51 (1973) . 35 Ohio St. 2d 197, certiorari denied(1974), 415 U.S. 994 HN *(show cause order whlch apprlses defendant of the nature of the charge against him so that he mayprepare a defense Is sufficient to comply with the requirements of R.C. 2705.03). Similarly, she was given an adequateopportunity to defend against those allegations. She was not denied due process of law.

The second assignment of error is without merit.

III.

Defendant's third assigned error assets that the court erred in overruling her motion to continue the contempt enforcementhearing. The assignment of error is without merit.

In Zech v. Zech (Sep. 20, 1984), Cuyahoga App No. 47802, unreported, this Court observed:

It is well settled that [*13] HN^+the granting or denying of a continuance of a scheduled trial or hearing is a matter within thesound discretion of the trial court, and will be disturbed on appeal only for an abuse of discretion. C P. Sup. R. 7(A); Kidd vCincinnati Transit Co (1970). 265 N.E.2d 297. "Abuse of discretlon" connotes more than an error of law or judgment; it impliesthat the trial court's attltude Is unreasonable, arbitrary or unconscionable. Calderon v. Sharkev (1982). 70 Ohlo St. 2d 218; ^e

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7 nning rransfer Co . (1967)14 Ohio Aoo 2d 221. Furthermore, abuse of discretion, even if shpwn, will not constitutereversible error unless it effects an injustlce to one of the parties. McNeil V . McNeii (1946)46 Ohio Law. Abs. 244 68 N E 2d

3_3_@.

Zech v. Zech, slip op. at 4.

In the Instant case, the trial court did not abuse its discretion in overruling defendant's motion to continue the contemptenforcement hearing. Defendant did not allege that she was not prepared to defend against the contempt charge. Instead, theonly ground offered in support of her motion to continue the hearing was that defendant first wanted a ruling on her motion tovacate the March 3, 1986 journal [*14] entry. We cannot say that the court abused its discretion by ruling on the pendingmotions jointly or in declining to prolong this case any further.

The third assignment of error Is not well taken.

The judgment is affirmed. This Court's order granting a stay will be dissolved, and this matter will be remanded to the trial courtfor further proceedings according to law.

It Is ordered that appellee recover of appellant his costs herein taxed.

The Court finds there were reasonable grounds for thls appeal.

It is ordered that a special mandate issue out of this Common Pleas to carry this judgment into execution.

A certiFled copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure

ANN McMANAMON, P.l., DAVID T. MATIA, J. CONCUR.

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SANDRA R. HALL (STROLE), Plaintlff-Appellee, vs. ROGER D. HALL, Defendant-Appellant

NO. CA 8146

COURT OF APPEALS, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY, OHIO

1983 Ohlo App. LEXIS 13998

October 25, 1983

CORE TERMS: real estate, appraisal, realtor, assignment of error, divorce, decree

COUNSEL: [*1] JAMES P. JONES, Attorney at Law, 9360 Lebanon Pike, Centerville, Ohio 45459, Attorney for Defendant-Appellant

GORDON RUDD, Attorney at Law, 100 East Market Street, P.O. Box 40, Xenla, Ohio 45385, Attorney for Plaintiff-Appellee

JUDGES: WEBER, J. AND MCBRIDE, J. CONCUR.

OPINION BY: WILSON, J.

OPINION

OPINION

On March 18, 1981 the appellee was granted judgment and final decree of divorce against her husband, the appellant. Includedtherein was a disposition of the marital residence, located at 3560 Mulberry Road, Dayton, Ohio. The Court ruled that saidproperty: "shall be sold as soon as possible at a reasonable price and the net proceeds divided equally between the parties."

That transaction however, was not consummated, and after sundry proceedings not relevant to the instant appeal, the appelleeflled a motion with the trial court requesting inferaiia that the Court:

Order the public sale of the real estate at 3560 Mulberry Road, Dayton, Ohio 45414, or in the alternative, to grant the Plaintiff(Appellee) exclusive possession of the real estate until it is sold. (Brackets ours).

After a hearing on said motion on October 12, 1982 the Court filed a"judgment [*2] order" on December 3, 1982 which readin pertinent part:

2. Since the rendition of the Decree on March 18, 1981, the property has not been sold and is now presently listed with a realtorwith the contract expiring on March 23, 1983. The Plaintiff is to slgn the listing contract and the Defendant is to provide a key tothe premises to the Plaintiff to enable her to display the property to potential buyers along with a realtor of her choice or therealtor with whom the property is listed. However, a real estate agent must accompany the Plaintiff while displaying theproperty. It is further ORDERED that the Plaintiff shall have reasonable access to show the property evenings or weekends.

In the event that the said real estate is not sold on or before March 23, 1983, the Court appoints James Husman to appraisesaid real estate and inform the Court of the appraisal at which time the Court will order the property sold at a public auction atthe price appraised by Mr. Husman. In the event that the parties do not agree with the appraisal of Mr. Husman, either partymay engage their own appraisal at their own expense and the Court will determine the value of the property afterexamination [*3] of the appraisal reports.

It is from that order that the appellant seeks revlew.

The appellant's sole assignment of error Is as follows:

THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF DEFENDANT-APPELLANT IN THEFOLLOWING RESPECTS: (A) APPELLANT WAS DENIED PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW: AND (B) THETRIAL COURT PERMITTED APPELLEE TO COLLATERALLY ATTACK THE FINAL JUDGMENT OF MARCH 18, 1981.

In Ellis v. Ellis (1953), 94 Ohio Aon. 339. the Court of Appeals for Sandusky County held in relevant part:

Where a divorce judgment contains provisions with respect to property rights in futuro or of an executory nature, the courtentering such judgment impliedly reserves continuing jurisdiction to construe, enforce or implement the rights secured by such

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provisions, by the entry of a judgment ancillary In nature to enforce compliance with the terms of the orlginal judgment.

The proceedings below, which are the subject of this appeal, were just that. Accordingly the appellant's assignment of error isoverruled and the judgment of the trial court is affirmed.

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Service: Get by LEXSEE®Citation: 2002 Ohio App. LEXIS 1321


State of Ohio Department of Natural Resources, Appellee v. C. Hughes, Trustee, et al., Appellants

Court of Appeals No. E-01-026

COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, ERIE COUNTY

2002 Ohlo App. LEXIS 1321

March 22, 2002, Decided

PRIOR HISTORY: [*1] Trial Court No. 92-CV-288.

DISPOSITION: Trial court's judgment was reversed and cause was remanded.

CASE SUMMARY

PROCEDURAL POSTURE: The appeals court previously affirmed an Erie County Court of Common Pleas (Ohio) judgmentwhich approved an agreement in which appellee state department of naturai resources (DNR) had agreed not to object toappellant owner's request for zoning changes. A common pleas court judgment then granted the DNR's motion for aprotective order and denied the owner's request for discovery and foreclosed post judgment relief. The owner appealed.

OVERVIEW: The owner sold land to the DNR and the agreement not to object related to the adjacent land retained by theowner. A unlformed DNR officer allegedly objected at two zoning hearings. The zoning planning commission and board thendenied the zoning changes. The owner alleged the DNR breached the agreement, sought post judgment relief, and wanted todepose the officer. The appeals court decided the common pleas court was to allow the discovery. The agreement had beenread into the record of the case and made part of the common pleas court's prior judgment. The agreement was notextrajudicial. Courts had a particular interest In their own judgments and were Invested with fundamental and inherentauthority to enforce proper orders and judgments. An allegatlon that a party violated an order or decree of a court while thecase was still pending was to be of great Interest to that court. The owner specifically alleged one of DNR's agents expresslyviolated the settlement judgment of the common pleas court. The extinguishment of the owner's discovery affected hersubstantial rights, was an abuse of discretlon, and required reversal of the court's order denying dlscovery.

OUTCOME: The appeals court reversed the judgment and remanded the case for further proceedings consistent with itsopinlon.

CORE TERMS: discovery, settlement agreement, assignments of error, settlement, protective order, zoning, zoning change,discovery order, breach of contract, substantial rights, supplemental pleading, extrajudicial, extinguished, foreclosed,appealable, acre

LEXISNEXIS® HEADNOTES ^Hide

Clvil Pmcedure > D'scoverv > Relevance

CLvil Procedure > Aooeals > standards of Review > Abuse of D'seetion

HNs±Ohio discovery rules, like their federal model, are designed to favor the fullest opportunity to perform compietediscovery. However, a trial court has discretion in controlling the discovery process. Nevertheless, such discretion Isnot without limits. An appellate court will reverse a trial court's decision to extinguish a party's right to discovery ifsuch a decision is improvident and affects the discovering party's substantial rights. More uke This Headnote

Civil Procedure > Settlements > Settlement Aareements > Enforcement >& h of C tr ct Acti ons eyContracts Law >Bmach > -n ral Ov rv' wfa

Contracts Law > Types f[ t ct > Settlement AoreementsttNZ+If the settlement agreement is extrajudicial in the sense that the trial judge is advised that the parties have agreed

to the settlement, but he Is not advised of the terms of the agreement, then the settlement agreement can beenforced only if the parties are found to have entered into a binding contract. Relief may be sought through the filingof an independent action sounding in breach of contract, or it may be sought in the same action through asupplemental pleading filed pursuant to Ohio R Civ. P. 15(E), setting out the alleged agreement andbreach. Mure Like This Headnote

LSvil Procedure >)udaments > Entry Judgmentst> Soetlfic Acts Q

Civll Procedure > SancHons > Contemot > General Overview Q

y^'3+Courts have a particular interest in their own judgments and are invested with fundamental and inherent authority toenforce proper orders and judgments. Consequently, an allegation that a party violated an order or decree of the

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court while the case is still pending should be of great interest to the court. More uee rn's Head^ore

COUNSEL: Kevin J. Zeiher and Duffield E. Milkie, for appellee.

James T. Murray, for appellants.

JUDGES: Melvin L. Resnick, J., James R. Sherck, 3., Richard W. Knepper, J., CONCUR.

OPINION BY: James R. Sherck

OPINION

DECISION AND JUDGMENT ENTRY

rage z 014

SHERCK, J. This is an appeal from a judgment of the Erie County Court of Common Pleas, which denied a party's request fordiscovery and foreclosed post judgment relief. Because we conclude that the trial court abused its discretion in denyingdiscovery, we reverse.

Appellant, Shirley Murray, is successor In interest to C. Hughes in what was a thirty-eight acre parcel of property in Erie County.1 The property is bounded on either side by the Sheldon Marsh State Nature Preserve which is owned by appellee, OhioDepartment of Natural Resources ("ODNR").

FOOTNOTES

i The Erie County Auditor was also a nominal defendant in the case, but is not a party to this appeal.^. . ... .. . _ . . . .. .. .._._ ...... ...... .. .

In 1992, appellee sought to appropriate ten acres of appellant's land. Lengthy legal proceedings ensued, [*2] culminating witha 1999 settlement agreement in which appellee promised to pay appellant a certain sum of money for the property. Appelleealso specifically agreed not to oppose a zoning change for appellant's remaining adjoining property.

Even though the settlement agreement was read into the record and approved by the trial court in a judgment entry, appellantappealed its terms. We affirmed the trial court's approval of the agreement. Ohio Dept. of Natural Resources v . Huoh (Nov ,30 2000). 2000 Ohio Aoo LEXIS 5559, Erie App. No. E-00-002, unreported. See, also, Oh(o Dept. of Natural Resources v .Hu2hes (2001) 145 Ohio Aoo 3d 202 762 N.E 2d 422.

According to appellant, while her initial appeal was pending, her petition to rezone the residual property went before the HuronTownship Zoning Commission. Appellant maintains that at a September 6, 2000 rezoning hearing, an ODNR officer appeared inuniform and, purportedly on behalf of appellee, objected to the proposed zoning change. The same officer appeared at asubsequent Erie Regional Planning Commission meeting. After that meeting, appellant claims, the commission opposed thezoning change.

On November 27, 2000, appellant moved [*3] for leave to pursue dlscovery for the purpose of exploring whether theappearance of appellee's employee at the hearings constituted a breach of the settlement agreement. Appellee filed amemorandum in opposition. Attached to this memorandum was a letter dated December 8, 2000, from appellee to the HuronTownship Zoning Board, stating that appellee was not opposed to the zoning change.

On December 15, 2000, appellant issued a notice of deposition to the ODNR officer who appeared at the zoning hearings.Appeilee moved for a protective order, which was granted. Appellant's motion to engage in discovery was ultimately overruled,as was a subsequent motion for "guidance." On June 14, 2001, the court dlsmissed further consideration of appellant's postjudgment remedles. 2

FOOTNOTES

2 On May 10, 2001, appeliee nled a document captioned a "Motion to Dismiss." The body of this motion seeks dismissal ofappellant's post judgment discovery motlons. This is the motion sustained by the court in its June 14 order. Whatever thenature of thls order, It is a final appealable order pursuant to R.C. 2505.02(B)f41. See, State v. Muncie (2001) 91 OhioSt.3d 440. 447. 746 N.E.2d 1092 et seq.

[*4] From that judgment, appellant now brings this appeal. Appellant sets forth the following three assignments of error:

"ASSIGNMENT OF ERROR NO. I

THE COURT ERRED BY REFUSING TO PERMIT THE APPELLANT TO ENGAGE IN ANY DISCOVERY. THE COURT SHOULD HAVEFULFILLED ITS TRUTH SEEKING FUNCTION AND ALLOWED THE DEFENDANT TO DOCUMENT FOR THE RECORD THAT THESETTLEMENT AGREEMENT HAD BEEN BREACHED.

"ASSIGNMENT OF ERROR NO. 2

THE COURT ERRED BY AWARDING A PROTECTIVE ORDER TO THE BREACHING PARTY, WHEN THERE WAS NO JUSTIFICATION

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FOR A PROTECTIVE ORDER PRESENTED TO THE COURT.

"ASSZGNMENT OF ERROR NO. 3:

THE COURT ERRED BY FAILING TO ORDER A HEARING ON THE MOTION FOR GUIDANCE, EVEN THOUGH THERE WAS PROOF BYTESTIMONY OF A BREACH OF THE SETTLEMENT AGREEMENT. THE COURT SHOULD HAVE GRANTED RELIEF TO THELANDHOLDER."

We shall discuss appellant's assignments of error together.

HN=*Ohio discovery rules, Ilke their federal model, are designed to favor the fullest opportunity to perform complete discovery.Steoawski v. Cleveland Anesthesia GrouR rnc. (1987). 37 Ohio App 3d 78 85. 523 N E 2d 902. However, a trial court hasdiscretion in controlling the discovery [*5] process. State ex re!. Daaoett v. Gessaman (1973). 34 Ohio St.2d 55 57, 295N E.2d 659. Nevertheless, such discretion is not without limits. An appellate court will reverse a trial court's decision toextinguish a party's right to discovery if such a decision is improvident and affects the discovering party's substantial rights.Bellinger v. Weight Watchers Gourmet Food Co. (2001). 142 Ohio Aoo 3d 708. 717, 756 N.E . 2d 1251; Smith v. Klein (1985). 23Ohio Aoo.3d 146. 151. 492 N.E.2d 852; Rossman Y. Rossman (1975). 47 Ohio Aop.2d 103 110 352 N E 2d 149.

In this matter, the trial court clearly has extinguished appellant's discovery by denying leave, granting a protective order andforeclosing further consideration of the issue.

Before the trial court and here, appellee argues that appellant's quest for discovery concerning the settlement breach wasprocedurally flawed because, pursuant to Bolen v. Young (1982) 8 Ohio App.3d 36 455 N E 2d 1316, she must either initiate aseparate action for breach of contract or file a supplemental pleading, pursuant to Civ.R. 15(E) in the pending proceeding.Since [*6] appellant did neither of these things, appellee insists, the trial court properly cut offdiscovery . 3

FOOTNOTES

s Appellee also asserts that any discovery issue is not properiy before this court because appellant appealed only the orderof dismissal and the time for appealing the discovery order has passed. This would be true only if the discovery order wasfinal and appealable when issued. Ordinarily, as here, this is not the case. Estate of 8anfeld v. Turner (1999) 131 OhioApp.3d 213, 216 722 N E 2d 136, citing State ex re% Steckman v. Jackson (1994). 70 Ohio St.3d 420 438 639 N.E.2d 83.See, also, endnote 2.

As appellant points out, the authority upon which appellee relies Is, by its own terms, distinguished from the facts before us. Inmaterial part, Bo%n held:

nxr„"zzz If the settlement agreement is extrajudiclal in the sense that the trial judge is advised that the parties have agreed tothe settlement, but he is not advised of the terms of the agreement, then the settlement [*7] agreement can be enforced onlyif the partles are found to have entered into a binding contract. Relief may be sought through the filing of an independent actionsounding in breach of contract, or it may be sought in the same action through a supplemental pleading flied pursuant to Civ. R.15 (E) setting out the alleged agreement and breach." Bolen 8 Ohlo Aoo. 3d at 38.

The agreement in this case was not extrajudicial. The parties read the settlement into the record and the trial court adopted theterms of the agreement as the order of the court.

The only issue In the first appeal was whether the agreement was properly formed. We determine that it had been properlyagreed to and affirmed that judgment.

HNnCourts have a particular interest in their own judgments and are invested with fundamental and inherent authority toenforce proper orders and judgments. Record Publishing Co. v. Kainrad (1990) . 49 Ohio St.3d 296 300 , 551 N E 2d 1286.Consequently, an allegation that a party violated an order or decree of the court while the case is still pending should be ofgreat interest to the court.

In this case, appellant came forth with a specific allegation that one of appellee's [*6] agents expressly violated the settlementorder entered as judgment of the court. Appellant sought discovery to probe whether indeed appellee was responsible for thispurported violation of the court's order. The court refused leave for such discovery and ultlmateiy foreclosed further discoveryefforts. Thus, the court extinguished discovery, affecting appellee's substantial rights to address a violation of a court order inthe pending action. Such extinguishment constitutes an abuse of the court's discretlon and requires reversal of the court's orderdenying discovery. Bellinoer, suora; Smith, suDra; Rossman. suora.

Accordingly, appellant's first and second assignments of error are well-taken. Appellant's third assignment of error is moot.

On consideration whereof, the judgment of the Erie County Court of Common Pleas is reversed. This matter is remanded to saidcourt for further proceedings consistent with this decision. Costs to appellee.

JUDGMENT REVERSED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.AOn.R. 4•. amended1/1/98.

Melvin L. Resnick, 3.

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[*9] James R. Sherck, J.

Richard W. Knepper, J.

CONCUR.

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