Elliott v. Smead Mfg. Co.Elliott v. Smead Mfg. Co.
APPEARANCES:
Michael J. Muldoon, Columbus, Ohio, for Appellant.
John C. Barno, Barno Law, LLC, Columbus, Ohio, for Appellee, Smead Manufacturing Co., and Nancy H. Rogers1, Ohio Attorney General, and Elise Porter, Assistant Attorney General, Columbus, Ohio, for Appellee, Administrator, Bureau of Workers’ Compensation.
Kline, P.J.:
{¶1} Kim A. Elliott (hereinafter “Elliott”) appeals the decision of the Hocking County Court of Common Pleas, which denied her
I.
{¶2} Elliott was an employee of Smead Manufacturing Co. (hereinafter “Smead”). On October 18, 2005, Elliott filed the first of two complaints in the
{¶3} Subsequently, on February 8, 2007, Elliott filed a second complaint in the Hocking County Court of Common Pleas. In her second complaint, Elliott claimed that she filed an administrative motion for recognition of “arthritis of right shoulder” as an additional condition of the March 18, 2002 accident. Elliott further alleged the following: (1) that a District Hearing Officer denied “arthritis of right shoulder” as an additional condition; (2) that a Staff Hearing Officer affirmed the District Hearing Officer’s denial of the additional condition; (3) that Elliott appealed to the Industrial Commission, which refused her appeal without a
{¶4} On February 23, 2007, Elliott filed motions requesting that the trial court consolidate her two cases. Despite Smead’s objections, the trial court granted these motions. The matter proceeded to a jury trial on February 11, 2008. The jury returned a verdict finding that Elliott was entitled to participate in the benefits of the Ohio Workers’ Compensation Act for the condition of “cervical muscle strain,” but that Elliott was not entitled to participate for the condition of “arthritis right shoulder.” As a result, the trial court issued a judgment entry on February 27, 2008, which, in relevant part, states as follows: “The Court further enters judgment finding that Plaintiff is entitled to 50 percent of her deposition costs, and 50 percent of her statutory attorney’s fee as outlined in
{¶5} Subsequently, on March 24, 2008, Elliott filed a motion for relief from judgment pursuant to
II.
{¶6} In her sole assignment of error, Elliott contends that the trial court (1) erred in denying her counsel the rightful attorney’s fee and (2) did not properly apply
{¶7} In an appeal from a
{¶8}
{¶9} In order to prevail on a motion for relief from judgment pursuant to
{¶10} Initially, we must note the manner in which Elliott frames her argument on appeal. Although Elliott appeals from the trial court’s denial of her
{¶11} Because of the trial court’s alleged errors in applying
{¶12} The manner in which Elliott frames her argument is especially relevant because we find that Elliott used a
{¶13} In short,
{¶14} Here, Elliott did not directly appeal the trial court‘s final judgment. On a direct appeal, Elliott could have raised the same issues that she raised in her
{¶15} Accordingly, we reject all of Elliott‘s arguments and dismiss her appeal.
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED and appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.
For the Court
BY:
Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.