[Cite as Harmon v. Cuyahoga Cty., 2017-Ohio-8662.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 105574



                                    LINDA HARMON
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                       CUYAHOGA COUNTY, ET AL.
                                                           DEFENDANTS-APPELLANTS




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-15-838317


        BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                          November 22, 2017
ATTORNEYS FOR APPELLANTS

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Dale F. Pelsozy
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

Also Listed

For Bureau of Workers’ Compensation

Mike DeWine
Ohio Attorney General
Thomas M. McCarty
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Mitchell A. Stern
Mitchell A. Stern, L.P.A.
27730 Euclid Avenue
Cleveland, Ohio 44132

Brian M. Taubman
Bruce D. Taubman
Taubman Law
1826 West 25th Street
Cleveland, Ohio 44113

Barry A. Trattner
Trattner & Associates
1826 West 25th Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Cuyahoga County (“appellant”), appeals from an order

of the Cuyahoga County Court of Common Pleas awarding plaintiff-appellee, Linda

Harmon (“Harmon”), $3,800 in attorney fees pursuant to R.C. 4123.512(F).                 Appellant

argues that Harmon was not entitled to an award of statutory attorney fees because she

was already participating in the workers’ compensation fund, and thus, her counsel did

not secure her right to participate in the fund.     After a thorough review of the record and

law, this court affirms.

                             I. Factual and Procedural History

       {¶2} Harmon was employed by appellant as a State Tested Nurses Aide (“STNA”).

 On July 6, 2012, Harmon sustained a lower-back injury in the course of her employment.



       {¶3} On July 10, 2012, Harmon filed a workers’ compensation claim for her

injuries. Harmon’s claim was originally allowed for substantial aggravation of disc

displacement and major depressive disorder, single episode, moderate.                     Harmon

subsequently requested an additional allowance for a low back sprain.1 On July 26,

2012, Harmon’s claim was granted in an administrative order for “sprain lumbar region.”




          Our record does not contain Harmon’s C-86 motion. A C-86 motion is an administrative
       1


motion in which a claimant can request that his or her workers’ compensation claim be allowed for an
additional condition. See Kenyon v. Scott Fetxer Co., 113 Ohio App.3d 264, 266, 680 N.E.2d 1034
(8th Dist.1996).
       {¶4} Appellant contested the additional allowance for a back sprain.           On August

8, 2012, appellant filed an appeal challenging the administrator’s ruling.        A hearing was

held before a district hearing officer on October 29, 2012.             On October 30, 2012, the

district hearing officer denied appellant’s appeal and modified the order of the Bureau of

Workers’ Compensation (“BWC”).              The officer concluded,

       [Harmon] was injured in the course of and arising out of employment when
       she was lifting laundry bags full of dirty clothes and hurt her low back.

       The claim is ALLOWED for SPRAIN LUMBAR SPINE.

       The District Hearing Officer awards temporary total disability
       compensation from 07/07/2012 through the present and to continue upon
       submission of medical evidence.

       {¶5} On November 15, 2012, appellant filed an appeal challenging the district

hearing officer’s ruling.       A hearing was held on December 11, 2012, before a staff

hearing officer.     The staff hearing officer affirmed the district hearing officer’s ruling.

       {¶6} Appellant filed an appeal on December 21, 2012, challenging the staff

hearing officer’s ruling.      On January 2, 2013, appellant’s appeal was refused.

       {¶7} In Cuyahoga C.P. No. CV-13-800584, appellant filed an appeal in the

Cuyahoga County Court of Common Pleas on January 31, 2013.                       Harmon filed a

complaint on May 28, 2013.2 However, on January 6, 2014, Harmon filed a notice of

voluntarily dismissal pursuant to Civ.R. 41(A).               The trial court dismissed the case

without prejudice on January 9, 2014.


           Harmon’s complaint is not in the record before this court.
       2
        {¶8} On January 2, 2015, in Cuyahoga C.P. No. CV-15-838317, Harmon filed a

“complaint and recommencement of Case Number CV[-]13-800584” against appellant

and the BWC. Harmon alleged that the Industrial Commission’s January 2, 2013 order

was “a final order granting her the right to participate in the benefits provided by the

Workers’ Compensation Act.”          The BWC filed its answer on February 6, 2015;

appellant filed its answer on February 12, 2015.

        {¶9} In December 2015, the parties purportedly agreed to settle Harmon’s

workers’ compensation claim for $32,500.        On December 7, 2015, the trial court issued

a journal entry that provided, in relevant part, “per notification of counsel this case is

settled and dismissed.”

        {¶10} On June 10, 2016, Harmon, after retaining new counsel, filed a motion to set

aside the settlement.     On June 27, 2016, appellant filed a motion to vacate the trial

court’s judgment dismissing the case and to enforce the settlement.       On December 6,

2016, the trial court issued the following journal entry: “Case called for hearing. By

agreement of the parties [Harmon’s] motion to set aside settlement filed on 6/10/16 is

granted.     [Appellant] dismisses this case with prejudice.”

        {¶11} On December 7, 2016, Harmon filed a motion for attorney fees pursuant to

R.C. 4123.512. The trial court held a hearing on Harmon’s motion on February 13,

2017.      On February 17, 2017, the trial court granted Harmon’s motion and awarded her

attorney fees in the amount of $3,800.
      {¶12} On March 16, 2017, appellant filed the instant appeal challenging the trial

court’s judgment. Appellant assigns two errors for review:

      I. The court incorrectly awarded attorney fees when the case was
      dismissed voluntarily by agreement of the parties in settlement.

      II.   The court abused its discretion in awarding attorney fees.

                                  II. Law and Analysis

                         A. Propriety of Attorney Fees Award

      {¶13} In its first assignment of error, appellant argues that Harmon was not

entitled to an award of statutory attorney fees under R.C. 4123.512(F).

      {¶14} R.C. 4123.512(F) governs the awarding of statutory attorney fees in

workers’ compensation cases that are appealed to the common pleas court.              R.C.

4123.512(F) provides:

      The cost of any legal proceedings authorized by this section, including an
      attorney’s fees to the claimant’s attorney to be fixed by the trial judge,
      based upon the effort expended, in the event the claimant’s right to
      participate or to continue to participate in the fund is established upon the
      final determination of an appeal, shall be taxed against the employer or the
      commission if the commission or the administrator rather than the employer
      contested the right of the claimant to participate in the fund. The
      attorney’s fees shall not exceed five thousand dollars.

      {¶15} This court reviews a trial court’s award of attorney fees under R.C.

4123.512(F) for an abuse of discretion.   Smith v. Franciscan Communities Inc., 8th Dist.

Cuyahoga No. 101451, 2014-Ohio-5291, ¶ 6, citing Hairston v. Baltimore Ravens, Inc.,

8th Dist. Cuyahoga No. 91339, 2008-Ohio-5341, ¶ 19. An abuse of discretion implies
that a trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶16} Initially, we note that the record reflects that the attorney who filed the

motion for attorney fees on Harmon’s behalf was not her original attorney. Harmon’s

attorney acknowledged that he was not her original attorney during the trial court’s

hearing on the motion for attorney fees.   Harmon’s attorney explained that he first met

with Harmon on April 29, 2016.

       {¶17} As noted above, Harmon’s workers’ compensation claim had originally been

allowed for substantial aggravation of disc displacement and major depressive disorder,

and her claim was additionally allowed for a low back sprain.      These allowances were

granted before Harmon retained her current attorney. Furthermore, CV-15-838317 was

purportedly settled and dismissed on December 7, 2015, before Harmon met with her

current attorney.

       {¶18} Harmon’s attorney did not file a notice of appearance.              However,

Harmon’s motion to set aside settlement, filed on June 10, 2016, provides that it was filed

“by and through newly obtained counsel[.]”

       {¶19} In the instant matter, appellant argues that Harmon was not entitled to an

award of statutory attorney fees under R.C. 4123.512(F) because she was already

participating in the workers’ compensation fund, and thus, her attorney did not secure her

right to participate in the fund. Appellant’s argument is misplaced.
       {¶20} The clear and unambiguous language of R.C. 4123.512(F) states that a

claimant’s attorney fees shall be taxed against the employer “in the event the claimant’s

right to participate or to continue to participate in the fund is established upon the final

determination of an appeal[.]”      (Emphasis added.)   The fact that Harmon was already

participating in the workers’ compensation fund does not preclude her from recovering

attorney fees — she is entitled to recover attorney fees from appellant if her right to

continue to participate in the fund was established upon the final determination of the

appeal in the trial court.

       {¶21} After retaining new counsel, Harmon filed a motion to set aside the

settlement agreement.        Therein, Harmon asserted, “she is not now, nor was she ever

interested in settlement of this claim. [Harmon] was and is currently seeking treatment for

her allowed psychological condition and wishes to continue to do so.” If Harmon was

ultimately successful in setting aside the settlement agreement, she would have the right

to continue participating in the workers’ compensation fund.

       {¶22} Appellant actively contested Harmon’s motion to set aside the settlement

agreement.    Appellant filed a motion to vacate the judgment dismissing the case and

enforce the settlement agreement.

       {¶23} In its motion to vacate judgment and enforce settlement, appellant asserted

that more than six months had passed since the parties reached a settlement during which

“[Harmon] continues to receive [workers’ compensation] benefits.”             Furthermore,

appellant asserted that after the parties reached a settlement, “[i]t is only now that
[Harmon] has [had] a change of heart after dragging the administrative proceedings out

and continuing to improperly collect benefits.” If appellant was ultimately successful in

enforcing the settlement agreement, Harmon would no longer have a right to continue

participating in the workers’ compensation fund and receiving benefits.       Rather, she

would receive the $32,500 settlement and nothing more.

       {¶24} Harmon filed a reply brief in opposition to appellant’s motion to vacate

judgment and enforce settlement.           Therein, Harmon asserted that her workers’

compensation claim had been allowed for lumbar disc displacement and major depressive

disorder, single episode, moderate.   Furthermore, Harmon asserted that she did not want

to settle the matter because a settlement would resolve her entire claim, including her

claim for a back sprain that was before the trial court.    Harmon filed an affidavit in

support of her brief in opposition to appellant’s motion in which she averred that she did

not want to settle her workers’ compensation claim because “she needed treatments for

her depression” and “wanted to attempt to get back on temporary total disability.”

       {¶25} On December 6, 2016, the trial court issued a journal entry that provided, in

relevant part, “case called for hearing.   By agreement of the parties [Harmon’s] motion

to set aside settlement filed on 6/10/16 is granted. [Appellant] dismisses this case with

prejudice. Costs to [appellant].”

       {¶26} After reviewing the record, we cannot say that the trial court abused its

discretion in determining that Harmon was entitled to an award of attorney fees pursuant

to R.C. 4123.512(F).       Although Harmon’s right to participate in the workers’
compensation fund had already been established, the record reflects that appellant

actively contested Harmon’s right to continue participating in the workers’ compensation

fund.

        {¶27} Harmon’s 2015 civil action is a “legal proceeding” authorized under R.C.

4123.512. Appellant contested Harmon’s right to continue participating in the workers’

compensation fund by filing its motion to vacate judgment and enforce the settlement.

The record reflects that Harmon succeeded on her motion to set aside the settlement

agreement.

        {¶28} Harmon’s right to continue participating in the workers’ compensation fund

was ultimately established on the final determination of the trial court proceedings.   The

effect of the parties’ agreement and appellant’s dismissal was that Harmon was ensured

that she would continue to participate in the workers’ compensation fund rather than

receiving the $32,500 settlement.

        {¶29} Appellant argues that the only issues before the trial court when Harmon

retained new counsel were Harmon’s motion to set aside the settlement and appellant’s

motion to vacate the judgment of dismissal and enforce the settlement.           Appellant

contends that the issue of Harmon’s right to participate in the workers’ compensation

fund was not before the trial court. This argument is unsupported by the record.

        {¶30} As noted above, the competing motions undoubtedly had implications on

Harmon’s right to continue participating in the workers’ compensation fund. If Harmon

succeeded in setting aside the settlement agreement, she would have the right to continue
participating in the workers’ compensation fund.        On the other hand, if appellant

succeeded in enforcing the settlement agreement, Harmon would be entitled to receive the

$32,500 settlement.

       {¶31} Appellant appears to argue that Harmon was not entitled to recover attorney

fees under R.C. 4123.512(F) because she filed her motion to set aside the settlement first,

and thus, was not forced to defend against an appeal or filing initiated by appellant. This

court rejected a similar argument in Cakic v. Ridge Pleasant Valley, Inc., 8th Dist.

Cuyahoga No. 102278, 2015-Ohio-2523.

       {¶32} In Cakic, the defendant-appellant employer argued that the employee was

not entitled to recover attorney fees pursuant to R.C. 4123.512(F) because the employee

filed an appeal seeking to overturn the Industrial Commission of Ohio’s ruling, and thus,

was not forced to defend against an appeal filed by the employer.    This court explained

that R.C. 4123.512(F) “does not limit a prevailing claimant’s right to recover statutory

attorney fees to cases in which a claimant is ‘forced to defend’ an appeal to the common

pleas court filed by his or her employer or the [Industrial Commission].”      Id. at ¶ 12.

This court emphasized that “under the plain language of R.C. 4123.512(F), a claimant has

a right to recover attorney fees in ‘any legal proceedings’ authorized by the statute in

which ‘the claimant’s right to participate or to continue to participate in the fund is

established upon the final determination of an appeal.’”   (Emphasis sic.) Id.
      {¶33} Accordingly, Harmon is not precluded from recovering attorney fees under

R.C. 4123.512(F) merely because she filed her motion to set aside the settlement before

appellant filed the motion to vacate judgment and enforce settlement.

      {¶34} Finally, appellant argues that the trial court did not address the issue of

Harmon’s right to participate in the workers’ compensation fund because the court did not

rule on Harmon’s motion to set aside the settlement and appellant’s motion to vacate

judgment and enforce the settlement. This argument is unsupported by the record.

      {¶35} The trial court’s December 6, 2016 journal entry provides, in relevant part,

“case called for hearing.   By agreement of the parties [Harmon’s] motion to set aside

settlement filed on 6/10/16 is granted. [Appellant] dismisses this case with prejudice.

Costs to [appellant].” Furthermore, this judgment ultimately established that Harmon

had the right to continue participating in the workers’ compensation fund, rather than her

entire workers’ compensation claim being settled for $32,500.

      {¶36} Based on the foregoing analysis, appellant’s first assignment of error is

overruled.

                        B. Amount of Attorney Fees Awarded

      {¶37} In its second assignment of error, appellant challenges the amount of

attorney fees awarded to Harmon.       Appellant argues that the trial court abused its

discretion by awarding attorney fees to Harmon in the amount of $3,800.

      Under R.C. 4123.512(F), attorney fees are to “be fixed by the trial judge,
      based upon the effort expended,” i.e., the effort spent by the claimant’s
      attorney in litigating the appeal, and cannot exceed $4,200. Holmes [v.
      Crawford Machine, Inc., 134 Ohio St.3d 303, 2012-Ohio-5380, 982 N.E.2d
       643, ¶ 12]. When determining the amount of attorney fees to award a
       prevailing claimant under R.C. 4123.512(F), the trial court must, therefore,
       consider “the effort expended” and “set the * * * award accordingly.” Id.
       The fees awarded must “‘bear[] a direct relation to a claimant’s appeal that
       lawyers traditionally charge to clients,’” Id. at ¶ 13, quoting Kilgore [v.
       Chrysler Corp., 92 Ohio St.3d 184, 187, 749 N.E.2d 267 (2001)]
       (reimbursement of costs, including attorney fees, under R.C. 4123.512(F),
       “is subject to the trial court’s determination of their reasonable necessity to
       the presentation of the claimant’s appeal”), and the amount must be
       “reasonable.” Holmes at ¶ 13, citing Schuller [v. United States Steel
       Corp., 103 Ohio St.3d 157, 2004-Ohio-4753, 814 N.E.2d 857, syllabus].
       The trial court’s attorney fees award must also be supported by the record.
       Smith, [8th Dist. Cuyahoga No. 101451, 2014-Ohio-5291, at ¶ 8], citing
       Rubenbauer v. C.W. Zumbiel Co., 1st Dist. Hamilton No. C-120486,
       2013-Ohio-929, ¶ 11.

Cakic, 8th Dist. Cuyahoga No. 102278, 2015-Ohio-2523, at ¶ 16.

       {¶38} In Harmon’s motion for attorney fees, she requested the statutory maximum

of $4,200 in attorney fees.3 In support of Harmon’s motion for attorney fees, Harmon’s

counsel filed a “time schedule” detailing the time he spent on the case.        This document

set forth specific dates on which counsel spent time on the case, brief descriptions of the

time spent, and the specific amount of time spent on the various dates.          The document

reflects that Harmon’s counsel spent a total of 19 hours on the case.

       {¶39} Appellant argues that the trial court’s award of attorney fees is not supported

by the record.   Appellant further contends that Harmon’s attorney’s testimony regarding

the time he spent on the case was neither credible nor a credible basis upon which to

award attorney fees to Harmon.


          In 2017, House Bill 27 amended the statutory maximum award of attorney fees from $4,200
       3


to $5,000.
      {¶40} In support of its challenge to the credibility of Harmon’s counsel’s

testimony, appellant emphasizes that counsel (1) did not contemporaneously keep track of

the time he spent on the case nor use a program to keep track of his time; (2)

“reconstructed the time [he spent on the case] from memory”; (3) submitted a

three-sentence brief in support of Harmon’s motion to set aside the settlement, without

citation to or analysis of case law or applicable statutes, and claimed that he spent two

hours on the brief; and (4) recorded time spent on hearings that were postponed or

cancelled.

      {¶41} The trial court held a hearing on Harmon’s motion.      During this hearing,

Harmon’s counsel testified about the time he spent on the case. Although Harmon

requested $4,200 in attorney fees in her motion, Harmon’s counsel amended the request

to $3,800 during the hearing.

      {¶42} Counsel testified that he first met with Harmon on April 29, 2016. During

this meeting, Harmon indicated that she was upset because she did not have any money

coming in and that she did not want to go through with a settlement that had been reached

between her prior attorneys, appellant, and the BWC. Counsel stated that he met with

Harmon for a second time on May 11, 2016.     During this meeting, they decided to file a

motion to set aside the settlement. Counsel testified that he reviewed the procedural

history of Harmon’s workers’ compensation claim. Counsel filed the motion to set aside

the settlement on Harmon’s behalf on June 10, 2016.
         {¶43} Harmon’s counsel testified that he reported to the common pleas court on

June 22, 2016, for the hearing that had been scheduled on Harmon’s motion to set aside

the settlement.    Counsel explained that the hearing was rescheduled after he waited for

two hours. Counsel testified about the time he spent preparing for and attending several

other hearings that were rescheduled.

         {¶44} On cross-examination, the prosecutor disputed whether Harmon’s counsel

spent one hour on the September 26, 2016 hearing.           The prosecutor recalled that the

parties were notified of the continuance by phone and that the parties did not appear in

court.     Harmon’s counsel asserted that he prepared for the hearing before he received a

phone call about the continuance.     Furthermore, he explained, “[e]very time we had to

reschedule for a hearing, I had to meet with [Harmon] to prepare.     I wanted to make sure

she was current and remembered everything.”      (Tr. 9.)

         {¶45} Counsel asserted that he spent approximately one hour reviewing appellant’s

motion to vacate the judgment of dismissal and enforce the settlement.     He spent another

two hours preparing, reviewing, and filing a brief in opposition to appellant’s motion.

Counsel testified that he spent approximately one hour preparing, reviewing, and filing an

affidavit from Harmon.      He prepared and filed two subpoenas for Harmon’s previous

attorneys.

         {¶46} Counsel testified that he met with Harmon on September 6 and December 3

to prepare for upcoming hearings.       Counsel explained that he spent four and one-half

hours on the trial court’s hearing on the motion to set aside settlement because
“[s]omebody came in about three and a half hours late, so I sat here for four and a half

hours.”   (Tr. 9.)

       {¶47} Counsel testified that he spent a total of 19 hours on the case. (Tr. 9.) He

explained that this was a “conservative” calculation of the time he expended.

       {¶48} The prosecutor cross-examined Harmon’s attorney about the time he spent

on the case.    On cross-examination, counsel acknowledged that he does not have a

program to keep track of the time that he spends on a case.     Counsel explained that he

does most of his work on a contingency fee basis. Counsel confirmed that he did not

have any records of the time he spent on the case, and that the time he reported was based

on his memory.

       {¶49} When the prosecutor disputed whether Harmon’s counsel spent two hours

on the motion to set aside the settlement, Harmon’s counsel explained, “[t]hat’s what I

said, you know, it took [two hours], and in connection with looking through the Workers’

Compensation file, seeing who [Harmon] was treated for psychologically, that’s very

close, yes.”   (Tr. 12.)

       {¶50} After hearing the parties’ closing arguments, the trial court took the matter

under advisement.      On February 17, 2017, the trial court issued its judgment entry

granting Harmon’s motion and awarding her $3,800 in attorney fees.

       {¶51} After reviewing the record, we cannot say that the trial court abused its

discretion in awarding attorney fees to Harmon.   Initially, we note that the trial court was
in the best position to assess the credibility of the witnesses, including Harmon’s attorney,

that addressed the court during the hearing on Harmon’s motion for attorney fees.

       The credibility of a witness is primarily for the trier of fact to assess. State
       v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing
       State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one
       of the syllabus. The trier of fact is in the best position to make credibility
       determinations because it is able to view the demeanor of a witness while
       he or she is testifying; this court cannot. The trier of fact is therefore in
       the best position to determine if the proffered testimony is credible. State
       v. Holloway, 8th Dist. Cuyahoga No. 101289, 2015-Ohio-1015, ¶ 42, citing
       State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26.

Khatib v. Peters, 2017-Ohio-95, 77 N.E.3d 461, ¶ 28 (8th Dist.); see State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24 (the trier of fact is best able “to

view the witnesses and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.”).

       {¶52} In the instant matter, the trial court, unlike this court, observed Harmon’s

counsel in person and was able to view his demeanor while he testified. In awarding

attorney fees to Harmon, the trial court evidently determined that Harmon’s counsel and

his testimony were, in fact, credible.         We defer to the trial court’s credibility

determination.

       {¶53} Additionally, upon review, we find that the trial court’s award of attorney

fees is supported by competent evidence in the record.     In Cakic, this court held that the

trial court abused its discretion in awarding the claimant $4,200 in attorney fees because

there was no evidence in the record supporting the amount of attorney fees awarded.

Cakic, 8th Dist. Cuyahoga No. 102278, 2015-Ohio-2523, at ¶ 22. This court explained
that the claimant “submitted no affidavit from counsel, no time sheets or billing records

detailing the time spent by counsel or counsel’s hourly rate or any other information or

documentation supporting her request for attorney fees.” Id. at ¶ 21.

       {¶54} In Rubenbauer, 1st Dist. Hamilton No. C-120486, 2013-Ohio-929, the

appellate court reversed the trial court’s judgment awarding attorney fees to the claimant

pursuant to R.C. 4123.512(F).      Id. at ¶ 11.    The First District explained that the

claimant’s counsel “failed to submit a timesheet and accompanying affidavit detailing the

hours expended on the case and counsel’s hourly rate. And there is no other competent

evidence in the record to support the trial court’s award.” Id.

       {¶55} In the instant matter, unlike Cakic and Rubenbauer, the trial court’s award

of attorney fees is supported by competent evidence in the record. As noted above,

Harmon’s counsel submitted a “time schedule” along with Harmon’s motion for attorney

fees in which counsel detailed the time he spent on the case. Counsel testified in detail

about the time he spent on the case during the trial court’s hearing.   Furthermore, at the

outset of the hearing, the trial court acknowledged that the parties stipulated that

counsel’s fee of $200 per hour was reasonable. (Tr. 4.)

       {¶56} Finally, appellant appears to argue that the trial court was without

jurisdiction to award attorney fees to Harmon because the case had been settled and

dismissed. This argument is misplaced.

       {¶57} The clear and unambiguous language of R.C. 4123.512(F) provides that a

claimant is entitled to recover attorney fees in the event that the claimant’s right to
participate or to continue to participate in the workers’ compensation fund “is established

upon the final determination of an appeal.”           (Emphasis added.)       Thus, the final

determination of an appeal — such as appellant’s dismissal of the case with prejudice —

does not divest the trial court of jurisdiction to award statutory attorney fees. In fact, this

court has held that a claimant is entitled to recover the statutory attorney fees even when a

trial court dismisses an employer’s appeal for lack of subject matter jurisdiction.        See

Hairston, 8th Dist. Cuyahoga No. 91339, 2008-Ohio-5341.

       {¶58} Based on the foregoing analysis, appellant’s second assignment of error is

overruled.

                                       III. Conclusion

       {¶59} After thoroughly reviewing the record, we cannot say that the trial court

abused its discretion in awarding attorney fees to Harmon pursuant to R.C. 4123.512(F).

Harmon’s right to continue participating in the workers’ compensation fund was

ultimately established upon appellant’s dismissal of the case with prejudice. The trial

court’s award of $3,800 in attorney fees is supported by competent evidence in the record.

       {¶60} Judgment affirmed.

       It is ordered that appellee recover of appellant 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 lower court

to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR
