1997 OHIO 157 - Whitehurst v. Perry Twp.

[This opinion has been published in Ohio Official Reports at

79 Ohio St.3d 1209

.]




      WHITEHURST, APPELLANT, V. PERRY TOWNSHIP ET AL., APPELLEES.
                [Cite as Whitehurst v. Perry Twp.,

1997-Ohio-157

.]
Appeal dismissed as improvidently allowed.
        (No. 96-1114—Submitted May 20, 1997—Decided July 16, 1997.)
   APPEAL from the Court of Appeals for Franklin County, No. 95APE09-1180.
                                 ___________________
        Mary Jo Cusack, for appellant.
        Scott, Scriven & Wahoff, William J. Wahoff and Richard Goldberg;
Loveland & Brosius and William Loveland, for appellee Perry Township.
        Betty D. Montgomery, Attorney General, and Gerald H. Waterman,
Assistant Attorney General, for appellee Administrator, Bureau of Workers’
Compensation.
                                 ___________________
        {¶ 1} The appeal is dismissed, sua sponte, as having been improvidently
allowed.
        MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
        DOUGLAS and RESNICK, JJ., dissent.
        PFEIFER, J., dissents separately.
                                 ___________________
        DOUGLAS, J., dissenting.
        {¶ 2} In his opinion affirming in part and dissenting in part in the court of
appeals proceeding in the case at bar, Judge Deshler said that “… the failure of
the trial court to address the defendant’s motion for leave to file a complaint and
rendering it ‘moot’ for failure to show excusable neglect, when a constitutional
challenge was before the court, was in my view error.” I agree with Judge Deshler
and would, on this issue, allow the appeal and reverse the judgment of the court of
                             SUPREME COURT OF OHIO




appeals. I would affirm the court of appeals in its holding that R.C. 4123.512 is
constitutional.
       RESNICK, J., concurs in the foregoing opinion.
                              ___________________
       PFEIFER, J., dissenting.
       {¶ 3} There is no question that Whitehurst did not file a complaint within
the statutory time period. See R.C. 4123.512(D). There is considerable question
as to whether his failure to file a complaint was due to excusable neglect or other
good cause. See Zuljevic v. Midland-Ross Corp. (1980),

62 Ohio St.2d 116

16 O.O.3d 140

403 N.E.2d 986

.
       {¶ 4} The Zuljevic court stated that “it is an abuse of discretion to dismiss
R.C. 4123.519 [R.C. 4123.519 was amended and renumbered R.C. 4123.512 in 145
Ohio Laws, Part II, 3153-3156, effective October 20, 1993] proceedings on the
basis of a claimant’s failure to act where he has not been given notice and an
opportunity to show cause why the proceedings should not be dismissed and
judgment entered against him.” Zuljevic,

62 Ohio St.2d at 120

, 16 O.O.2d at 142,

403 N.E.2d at 988

. Such notice and opportunity to show cause do not appear to
have been given in this case.      I believe the trial court should have granted
Whitehurst’s motion for leave to plead and compelled Whitehurst to address
whether there was excusable neglect or other good cause for his failure to file a
timely complaint.
       {¶ 5} The Zuljevic court was attempting to prevent claimants from
“disregard[ing] with impunity [their] statutory obligation to timely prosecute.”
Zuljevic,

62 Ohio St.2d at 119

, 16 O.O.2d at 142,

403 N.E.2d at 988

. The record
does not suggest that Whitehurst is such a claimant. Instead, the record suggests
that Whitehurst is (1) the victim of a notice of appeal that does not provide good
notice to a layperson, see Appendix [not included in Internet version]; (2) the victim
of appellate procedure that does not require the notice of appeal to be served on




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                                January Term, 1997




counsel despite App. R. 13(B), which requires the notice of appeal to be served on
counsel; and (3) the victim of appellate procedure that shifts the burden of proof to
the party that won at the administrative level.
       {¶ 6} I would allow the appeal and reverse and remand to the trial court with
instructions to determine whether Whitehurst’s failure to file a complaint was based
on excusable neglect or other good cause.
                              ___________________




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