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Emmer v. North Central State College11/29/2005
JUDGMENT: Affirmed
{ } Plaintiff-appellant Kathy M. Emmer appeals the April 29, 2005 Judgment Entry of the Richland County Court of Common Pleas ordering the parties to perform their settlement agreement, with appellant's complaint to be dismissed upon performance of the settlement with prejudice to future action against defendant-appellee Northwest Central State College.
STATEMENT OF THE FACTS AND CASE
{ } This matter arises from an administrative appeal by the state-funded employer, defendant-appellee Northwest Central State College, from the Ohio Industrial Commission's allowance of plaintiff-appellant's workers' compensation claim. Appellant's claim is based upon an industrial injury which occurred on October 6, 2000. The Bureau of Workers' Compensation recognized appellant's claim for the conditions of "sprain of neck", "aggravation of pre-existing C6-7, C7-T1 intervertebral disc displacement," "aggravation of pre-existing cervical spinal stenosis C6-7,C7-T1," and "bilateral C8-T1, radiculitis." Appellee filed its appeal with the Industrial Commission on August 30, 2001. The Industrial Commission denied the appeal, and appellee subsequently appealed the Industrial Commission decision to the trial court. As a result, appellant filed her complaint in the trial court on November 12, 2001.
{ } On September 13, 2002, Appellant voluntarily dismissed the case without prejudice pursuant to Civ. R. 41(A)(1)(a). On August 26, 2003, appellant timely re-filed her complaint. The trial court scheduled the case for mediation on June 1, 2004, and a jury trial on July 27, 2004.
{ } On or about May 27, 2004, the parties agreed to a lump-sum payment in settlement of all the claims against appellee. The settlement agreement was prepared by the Attorney General and mailed to the respective attorneys. The trial court was notified the case was settled on June 1, 2004, and the court cancelled the jury trial with the understanding the judgment entry of dismissal would be submitted after approval by all counsel.
{ } On June 24, 2004, appellant decided she no longer wished to settle the case. On July 27, 2004, appellant's counsel moved the trial court to withdraw as counsel of record. On August 3, 2004, appellee filed a motion to dismiss for failure to prosecute. On August 5, 2004, appellant's counsel moved to withdraw his motion to withdraw as counsel.
{ } On March 23, 2005, the magistrate issued a Magistrate's Decision ordering the parties' settlement agreement be consummated, and then the complaint of the plaintiff should be dismissed with prejudice to any future action.
{ } On April 6, 2005, appellant filed her objections to the Magistrate's Decision. Appellee replied to the objections on April 14, 2005.
{ } On April 29, 2005, the trial court, via Judgment Entry, overruled appellant's objections, ordering the lump sum settlement of all claims to be fully performed, and upon payment of the settlement, the complaint should be dismissed with prejudice to future action.
{ } Appellant now appeals the April 29, 2005 Judgment Entry, assigning as error:
{ } "I. THE LOWER COURT ABUSED ITS DISCETION IN DISMISSING THIS CASE WITH PREJUDICE.
{ } "II. THE LOWER COURT ERRED IN ORDERING PERFORMANCE OF AN ORAL SETTLEMENT OF THE PARTIES TO THIS LITIGATION AND ORDERING COSTS ASSESSED AGAINST PLAINTIFF."
{ } Both of appellant's assignments of error raise common and interrelated issues; therefore, we will address the assignments together.
{ } Our standard in reviewing the court's decision in this regard is the abuse of discretion standard. The Supreme
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