COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60060 MARY L. MANOCCHIO : : : PLAINTIFF APPELLANT : JOURNAL ENTRY : v. : AND : OHIO BUREAU OF EMPLOYMENT SERVICES : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 21, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-177925 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: PAUL MANCINO, JR. 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 For Defendant-Appellee: ANTHONY J. CELEBREZZE, JR. Attorney General of Ohio BETSEY NIMS FRIEDMAN Assistant Attorney General 12th Floor, State Office Bldg. 615 West Superior Avenue Cleveland, Ohio 44113-1899 -2- SPELLACY, P.J.: On November 30, 1988, claimant-appellant Mary L. Manocchio ("appellant") was discharged from her employment with Mr. Coffee, Inc. According to Mr. Coffee, appellant had violated the company union contract regarding leave policy. On December 5, 1988, appellant filed an application for unemployment compensation with the Ohio Bureau of Employment Services. In her accompanying statement, appellant claimed that she had a written excuse from her doctor that stated she was sick. However, when she returned to work, she was terminated because she did not timely call into work. On December 21, 1988, appellant's application for unemploy- ment compensation was denied pursuant to R.C. 4141.29(D)(2)(a). It was found that appellant was discharged for just cause in connection with her work. On December 27, 1988, appellant requested a reconsideration of the decision denying her application for unemployment compensation. Upon reconsideration, the Administrator affirmed the denial of appellant's claim on March 2, 1989. On March 9, 1989, appellant filed a notice of appeal to the Unemployment Compensation Board of Review from the Administrator's decision of reconsideration. Appellant also requested a hearing. A hearing on appellant's appeal was scheduled for March 27, 1989. In a letter dated March 22, 1989, appellant's attorney informed the Board of Review that he -3- was scheduled to be out of the State of Ohio on March 27, 1989. Appellant's counsel indicated that he had called the Cleveland office of the Board of Review about a continuance and was informed that there was no objection to a continuance. However, appellant's counsel was instructed to call the Columbus office in order to obtain approval for a continuance. When appellant's counsel contacted the Columbus office, he was informed that no continuances would be granted. Appellant's counsel renewed his request for a continuance in the March 22, 1989 letter sent to the Columbus office. On March 27, 1989, the Board of Review proceeded with the scheduled hearing. Neither appellant nor her counsel appeared for the hearing. Thus, the Board of Review dismissed appellant's appeal pursuant to R.C. 4141.28(J)(2). In its dismissal of appellant's appeal, the Board of Review stated that the dismissal would become final if she failed to show, in writing, good cause for failure to appear at the scheduled hearing. In a letter dated April 3, 1989, appellant's counsel informed the Board of Review that appellant did request a continuance due to the fact that her counsel was going to be out of town. Appellant's counsel further indicated that appellant "has limited use of the English language and representation is needed for her in order that she could process her claim." On April 18, 1989, the Board of Review found that appellant's reason for nonappearance did not constitute good cause. Thus, the Board of Review ordered that the dismissal of -4- appellant's appeal become final if appellant did not request a hearing within 10 days. Appellant was required to request a hearing on the question of whether or not she had furnished good cause for failure to appear at the hearing. On April 24, 1989, appellant requested a hearing on said issue. A hearing was then scheduled for June 5, 1989. On June 5, 1989, appellant appeared at the scheduled hearing with her attorney. At the hearing, appellant testified that she did not personally appear at the March 27, 1989 hearing, because she assumed she had to go with her attorney. Appellant also believed that there was a continuance of the hearing. On October 10, 1989, the Board of Review issued its decision finalizing the dismissal of appellant's appeal. The Board of Review concluded that appellant failed to show good cause for her failure to appear at the scheduled hearing. On October 19, 1989, appellant filed a notice of appeal in the Cuyahoga County Court of Common Pleas pursuant to R.C. 4141.28. On May 29, 1990, the trial court issued its order in which it found that the Board of Review's decision that appellant had not shown good cause for failure to appear at her scheduled hearing was not unlawful, unreasonable or against the manifest weight of the evidence. Accordingly, the trial court overruled appellant's appeal. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: -5- I. THE COMMON PLEAS COURT COMMITTED PREJUDICIAL ERROR IN AFFIRMING THE DECISION OF THE BOARD OF REVIEW AS THAT DECISION IS UNLAWFUL, UNREASONABLE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE COMMON PLEAS COURT COMMITTED PREJUDICIAL ERROR IN AFFIRMING THE DECISION OF THE BOARD OF REVIEW AS THE BOARD OF REVIEW ABUSED ITS DISCRETION IN REFUSING TO GRANT A CONTINUANCE SO THAT THE PLAINTIFF WOULD BE REPRESENTED BY COUNSEL. III. THE COURT OF COMMON PLEAS ERRONEOUSLY CONCLUDED THAT THE PLAINTIFF HAD NOT SHOWN GOOD CAUSE FOR HER NON-APPEARANCE. Appellant's assignments of error will be discussed together, since they all pertain to the propriety of the trial court's order affirming the Board of Review's decision. In an appeal from a decision of the Board of Review, the trial court is limited to determining whether the decision is supported by a preponderance of substantial, reliable and probative evidence. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159. The trial court must give due deference to the Board of Review's decision and may not substitute its judgment for that of the Board. Budd Co. v. Mercer (1984), l4 Ohio App. 3d 269. This court's review of the decision of the trial court is limited to a determination of whether the trial court abused its discretion in making such finding. Angelkovski, supra. "Abuse of discretion connotes more than error of judgment; it implies a decision without a reasonable basis, one which is clearly wrong." Id. at 161-162. -6- The issue in the instant case is whether the trial court abused its discretion in finding that the Board of Review's decision, that appellant had not shown good cause for failure to appear at her scheduled hearing, was not unlawful, unreasonable or against the manifest weight of the evidence. R.C. 4141.28(J)(2) governs the failure of a party to appear at a scheduled hearing. R.C. 4141.28(J)(2) provides in pertinent part: (2) If the party appealing fails to appear at the hearing, the referee or the board shall dismiss the appeal, provided due notice of the hearing was mailed to such party's last known address and good cause for the failure to appear is not shown the referee or the board within ten days after the hearing date .... In the instant case, there is no doubt that due notice of the hearing was mailed to appellant. Appellant admitted during her testimony at the June 5, 1989 hearing that she received the hearing notice at least ten days prior to the scheduled hearing. Appellant, through her counsel, attempted to show good cause for her failure to appear at the scheduled hearing. In appellant's counsel's letter to the Board of Review on April 3, 1989, it was claimed that since she requested a continuance as a result of her attorney being out of town, good cause was shown. However, we find that the trial court did not abuse its discretion in rejecting this contention. -7- Appellant's counsel did request a continuance, but he was told by telephone from the Columbus office that no continuances were going to be granted. Despite this information, appellant's counsel wrote a letter to the Columbus office requesting a continuance. We find that appellant's counsel improperly requested a continuance knowing that one would not be granted. Further, neither appellant nor her counsel inquired as to whether a continuance was granted. Instead, both appellant and her counsel simply failed to appear at the scheduled hearing. Finally, we find that appellant's counsel's failure to inquire as to whether a continuance was granted is imputed to appellant. An attorney's acts and omission are regarded as the acts of his counsel. Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St. 3d 389. We conclude that the trial court's decision that appellant failed to demonstrate good cause for her failure to appear at the scheduled hearing was not an abuse of discretion. Appellant's assignments of error are without merit and are overruled. Trial court judgment is affirmed. -8- It is ordered that appellee recover of appellant its 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 Common Pleas 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. HARPER, J., AND KRUPANSKY, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .