46301 | Ohio Ct. App. | Nov 21, 1983
Plaintiff-appellant, Thomas Brunecz, on August 7, 1980 brought an action in the Court of Common Pleas of Cuyahoga County, against defendant-appellee, Houdaille Industries, Inc., for wrongful discharge under R.C.
Plaintiff alleged that he was injured at his place of employment, and that defendant wrongfully discharged him because he filed a claim for compensation with the Bureau of Workers' Compensation. Plaintiff demanded reinstatement, back pay and reasonable attorney fees. He also made a demand for a jury trial. After an answer was filed by defendant, plaintiff moved for leave to amend his complaint, which was granted. The amendment deleted from the prayer the request for reinstatement. Defendant again answered with a general denial.
After a motion for summary judgment filed by defendant was overruled, the trial court referred the claim of plaintiff to arbitration. The board of arbitrators found for plaintiff in the sum of $1838, plus attorney fees. Defendant appealed to the trial court for a hearing de novo. Defendant also moved to strike the plaintiff's jury demand, pursuant to Civ. R. 12(F) and 39(A)(2), on October 15, 1982. Defendant asserted that no jury trial right exists where a claim pursuant to R.C.
Appellant appeals citing as error the trial court's granting of the motion to strike appellant's demand for a jury trial. Civ. R. 39(A) provides in part:
"When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a *107 jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the courtupon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. * * *" (Emphasis added.)
Civ. R. 39(A)(2) does not place a time limit on the filing of a motion to strike a jury demand. Appellee filed its motion to strike prior to trial and the right to jury trial was briefed by both parties. There was no waiver of appellee's right to raise an objection to the jury demand by its failure to raise the objection in its answer. Civ. R. 12(H) does not control, as this issue is not in the nature of a defense.
Appellant brought his action against appellee for wrongful discharge under R.C.
"No employer shall discharge, demote, reassign, or take any punitive action against any employee because such employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the courty of such employment in which the relief which may be granted shall be limited toreinstatement with back pay, if the action is based upondischarge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section
R.C.
"* * * The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action.
"* * *
"If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate in the fund, the commission and the administrator shall thereafter proceed in the matter of the claim as if such judgment were the decision of the commission, subject to the power of modification provided by section
There is a conspicuous absence of any reference to a jury trial in R.C.
While we can find no Ohio case wherein a court has addressed the issue of a right to a jury trial in an R.C.
"A key dividing line between law and equity has historically been that the former deals with money damages and the latter with injunctive relief. This distinction has been blurred by courtdecisions indicating that not all money damages claims will bedeemed `legal.' * * * A common example is an employment discrimination claim brought under Title VII of the Civil Rights Act of 1964,
In Great American Fed. S. L. Assn. v. Novotny (1979),
"The Act provides for injunctive relief, specifically including back pay relief. * * * Because the Act expressly authorizes only equitable remedies, the courts have consistently held that neither party has a right to a jury trial." (Footnotes omitted.)
In Dixon v. Universal Atlas Cement Div., supra, at 1074, the court stated:
"The court will order this case to be stricken from the jury trial list. * * * [A]t least four other circuits have ruled that a Title VII cause of action is equitable. This is true even ifthere is a claim for back pay, the courts having ruled that backpay awards are part of the overall equitable relief awarded bythe court rather than legal damages. * * *" (Emphasis added.)
R.C.
Appellant's action was not for a recovery of money only, but he sought a specific remedy for retaliatory conduct by an employer under R.C.
The judgment of the trial court is affirmed.
Judgment affirmed.
DAHLING, P.J., and CHRISTIANSEN, J., concur.
BROGAN, J., of the Second Appellate District, DAHLING, P.J., of the Eleventh Appellate District, and CHRISTIANSEN, J., of the Richland County Probate Court, sitting by assignment in the Eighth Appellate District.