Opinion
No. 91-07097.
Decided April 6, 1992.
Keith A. Savidge, for plaintiff.
Lee Fisher, Attorney General, and Gregg H. Bachmann, Assistant Attorney General, for defendants.
On December 23, 1991, defendants filed a motion for summary judgment. A non-oral hearing was scheduled for January 15, 1992. Plaintiff filed a memorandum contra on January 13, 1992. Additionally, plaintiff filed a motion to continue the non-oral hearing to complete discovery, which the court granted. Plaintiff filed a supplemental brief on March 2, 1992. Defendants also filed a motion for leave to file a response to plaintiff's supplemental. Defendants' motion for leave is granted. Defendants' supplemental motion filed on March 5, 1992, is deemed "filed" and is a proper pleading before the court.
Civ.R. 56(C) states, in part, as follows:
* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *
See, also, Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267.
This rule of civil procedure was intended for the promotion of judicial economy through elimination of needless trials in circumstances where there are no genuine issues of material fact. As implied by the rule, the conclusion that no genuine issue of material fact is presented for consideration follows from the determination, based upon a review of the limited materials which Civ.R. 56(C) permits to be considered, that reasonable minds could come to but one conclusion. Although the non-moving party is entitled to have the submitted materials construed in whatever light most favors him, he cannot merely rest upon the pleadings when the motion has been made, but must endeavor to demonstrate to the court that genuine issues for trial truly exist. Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 3 OBR 544, 445 N.E.2d 1167; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.
Ordinarily, the language of this rule presents a high threshold for the movant to overcome. Whenever it would appear from the admissible materials that there exist conflicting accounts of those facts necessary for resolution of the action, or an issue therein, then the determination will hinge upon the credibility and weight of the evidence. Of necessity, such evaluations can occur only in the context of trial on the merits of the controversy. Consequently, a motion for summary judgment is granted with trepidation where the core disputes are factual ones. On the other hand, the granting of such motion is less difficult when the underlying issue is purely a legal one.
Having carefully scrutinized the materials submitted by the parties in light of the foregoing standard, this court finds that, as a matter of law, defendants are entitled to summary judgment.
An employee of plaintiff Midland Ross Corporation filed two actions involving a workers' compensation claim. The action which is the basis for the present action before the court was filed on September 28, 1987. Plaintiff did not answer nor did it enter an appearance. The complaint was answered by the defendants, Industrial Commission of Ohio and the Bureau of Workers' Compensation, by the Attorney General. The Richland County Common Pleas Court entered judgment allowing the workers' compensation benefits by an agreed entry of the parties not in default.
Plaintiff learned of the agreed entry and filed a motion for relief from judgment on November 13, 1989, pursuant to Civ.R. 60(B). An evidentiary hearing was held before a referee on January 11, 1990. The Civ.R. 60(B) motion was overruled. Plaintiff appealed to the Fifth District Court of Appeals. The court of appeals adopted the trial court's judgment entry. Plaintiff then filed a motion with the court of appeals to certify the record to the Ohio Supreme Court. The Ohio Supreme Court denied the motion. Plaintiff then filed suit in this court.
An action in this court cannot become a substitute for a statutorily created right of appeal in a different court. On this issue R.C. 4123.519 provides as follows:
"The claimant or the employer may appeal a decision of the industrial commission * * * in any injury or occupational disease case other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted * * *. If the claim is for an occupational disease the appeal shall be to the court of common pleas of the county in which the exposure * * * occurred." (Emphasis added.)
In R.C. 4123.519, supra, the word "may" is applicable only to the word "appeal." This indicates that the discretion provided herein is that of deciding whether or not to file an appeal. Once the decision is undertaken to appeal, then only one court is provided with jurisdiction to hear such an appeal, i.e., the court of common pleas. That this is intended to be the focus of exclusive jurisdiction for any appeal from a final determination of the Industrial Commission is indicated by the last part of the above statute which directs that all such appeals "shall be preferred over all other civil actions except election causes irrespective of their position on the calendar." This direction is given to the court of common pleas alone, and therefore indicates that only the court of common pleas is vested with the requisite jurisdiction to consider appeals from the commission.
A review of the language of the complaint in the instant action reveals that it requests this court to declare that the Industrial Commission, in essence, erred by its determination of the legal and factual issues that were then properly before it. A review of legal or factual determinations is invariably the proper subject of an appeal. The issue is thus clarified as not being a question of whether this court has exclusive or concurrent jurisdiction to hear claims against state agencies, but is instead, whether this court may provide a substitute forum for an appellate review which has been statutorily established in a different court.
The jurisdiction of the Court of Claims is outlined in R.C. 2743.02 wherein the state waived its immunity from liability and consented to be sued. However, this waiver of immunity is limited to those causes of action that existed prior to the enactment of the Court of Claims Act and which were barred by the doctrine of sovereign immunity. McCord v. Dept. of Natural Resources (1978), 54 Ohio St.2d 72, 8 O.O.3d 77, 375 N.E.2d 50. Since plaintiff's claims are governed by a procedure that existed prior to the enactment of the Court of Claims Act, this court does not have jurisdiction to hear plaintiff's claims. Avon Lake City School Dist. v. Ohio Dept. of Taxation (Nov. 28, 1989), Franklin App. No. 89AP100, unreported, 1989 WL 142885. Forest City Foundries Co. v. Indus. Comm. (Apr. 25, 1989), Ct. of Cl. No. 88-11895, unreported. It can only be concluded that this court is not a proper forum in which to raise the sufficiency of the Industrial Commission's determination.
Additionally, although mandamus may be proper, State ex rel. Burnem v. Indus. Comm. (1984), 18 Ohio App.3d 27, 18 OBR 52, 479 N.E.2d 895; State ex rel. Kroger Co. v. Stover (1987), 31 Ohio St.3d 220, 31 OBR 415, 509 N.E.2d 1240; State ex rel. Gen. Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 71 O.O.2d 255, 328 N.E.2d 387; State ex rel. Shewalter v. Indus. Comm. (1969), 19 Ohio St.2d 12, 48 O.O.2d 7, 249 N.E.2d 51, this court does not have jurisdiction to grant mandamus. State ex rel. Mahoning Cty. Community Corr. Assn., Inc. v. Shoemaker (1983), 12 Ohio App.3d 36, 12 OBR 123, 465 N.E.2d 1351; Rosso v. Dept. of Adm. Serv. (1982), 4 Ohio App.3d 312, 4 OBR 563, 448 N.E.2d 524. Accordingly, defendants' motion for summary judgment is granted.
Motion for summary judgment granted.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.