COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67880 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILLIAM HEREDIA : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MAY 4, 1995 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CR-208621 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES WILLIAM HEREDIA, Pro Se Cuyahoga County Prosecutor #192-579 GEORGE J. SADD, Assistant Lima Correctional Inst. 8th Floor - Justice Center P.O. Box 4571 1200 Ontario Street Lima, Ohio 45802 Cleveland, Ohio 44113 - 2 - PER CURIAM: Appellant was convicted of murder on September 12, 1986. This court affirmed that conviction on September 24, 1987 and the Ohio Supreme Court overruled appellant's motion for leave to appeal on January 20, 1988. On February 19, 1988, sentence was ordered into execution. On February 25, 1988, appellant filed a motion for a new trial alleging that the state's key witness should have been precluded from testifying against him because she was married to him at the time. In response, the state filed a "Motion to Deny New Trial." The court, finding the state's response "was not a proper motion under the applicable rules of court" denied it and, on October 30, 1989, again ordered appellant's sentence into execution. Appellant next filed his first petition for post-conviction relief on March 16, 1990, arguing that the evidence of his guilt was insufficient as a matter of law. That petition was denied on March 22, 1990. Appellant then filed a second petition for post- conviction relief on August 13, 1990 alleging that the state's key witness was incompetent to testify by virtue of her marriage to appellant. This petition was overruled on September 5, 1990. Appellant thereafter filed a third petition for post- conviction relief on June 6, 1994, alleging that the denial of the state's April 12, 1988 "motion to deny new trial" was, in - 3 - effect, a grant of a new trial. Appellant further argued that he was denied the effective assistance of appellate counsel. This third petition for post-conviction relief was denied on August 23, 1994, and appellant now appeals from the trial court's denial raising two assignments of error. I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR POST CONVICTION RELIEF, PURSUANT TO R.C. 2953.21 (C). For his first assignment of error appellant argues that the trial court's August 24, 1988 denial of the prosecutor's "Motion to Deny New Trial" was in essence a grant of a new trial. Appellee urges that this appeal be banned by the doctrine of res judicata. In State v. Perry (1967), 10 Ohio St.2d 175, the Supreme Court stated in its syllabus: "9. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant *** from raising *** any defense *** that was raised or could have been raised by the defendant at the trial or on an appeal from that judgment." (Emphasis added). Our review of the record reflects that appellant did not appeal the trial court's original ruling on the state's motion to deny new trial, and, further, did not raise the issue in his - 4 - first or second petition for post-conviction relief. Appellant is therefore barred under the doctrine of res judicata from raising this issue in this, his third petition for post- conviction relief. See Perry, supra. Accordingly, appellant's first assignment of error is without merit. II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION WITHOUT A TRANSCRIPT MADE OF THE DEFENSE COUNSEL STEPHEN WALKER. For his second assignment of error appellant argues that his counsel was ineffective in "abandoning his appeal as of right" in that appellate counsel Walker failed to obtain a new trial. Appellee believes that the conduct of appellant's counsel did not fall below acceptable standards. Before we can address the issues of the effective assistance of appellate counsel, we must first examine the procedure by which this matter is brought to our attention. We note that appellant raises it for the first time in this, his third petition for post-conviction relief. The Ohio Supreme Court has previously considered this procedural issue and has held in State v. Murnahan (1992), 63 Ohio St.3d 60 in its syllabus: "1. Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21." - 5 - Since appellant raises the issue of ineffective assistance of appellate counsel as part of his claim for post-conviction relief, we cannot now consider his claim because we are bound by the doctrine of stare decisis to follow the law in Murnahan, supra, which precludes our review in this proceeding. Accordingly, the second assignment of error is overruled. Judgment of the trial court is therefore affirmed. - 6 - 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 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. JAMES D. SWEENEY, PRESIDING JUDGE JAMES M. PORTER, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67937 INGRID G. PFEFFER : ACCELERATED DOCKET : Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ADMINISTRATOR, OHIO BUREAU : OF EMPLOYMENT SERVICES : : Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 4, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 256591 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For appellant: For appellee: THOMAS P. ALDRICH, III, ESQ. BETTY MONTGOMERY, ESQ. 1060 Greyton road Attorney General Cleveland Hts., Ohio 44112 BETSEY NIMS FRIEDMAN, Assistant Attorney General State Office Bldg., 12th Floor 615 West Superior Avenue Cleveland, Ohio 44113-1899 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Appellant Ingrid G. Pfeffer appeals from the decision of the Common Pleas Court affirming the decision of the appellee Board of Review of the Bureau of Unemployment Compensation for the State of Ohio denying the plaintiff unemployment benefits on the grounds she quit her employment without just cause. Appellant contends the decision of the trial court was against the manifest weight of the evidence and contrary to law. We find no merit to the appeal and affirm the judgment below. Appellant was employed by a restaurant, The Cabin, as a daytime manager from October 6, 1991 to June 12, 1992. She was hired personally by the owner to improve the quality of the restaurant and was told she was in charge. The owner of the restaurant died in January, 1992. The executrix of the estate had a meeting with the employees and advised the employees that appellant was in charge and that they should look to her for direction. Appellant did not get along with the cook from the beginning of her job. The cook was temperamental and verbally abusive, calling the appellant names and throwing things when he disagreed with her. The evidence supported the conclusion that appellant had authority to discipline and suspend the cook, but failed to do so. - 3 - On June 12, 1992, appellant and the cook argued about the menu wording for the special of the day. The cook blew up, became verbally abusive, threw a legal pad at appellant, but she did nothing about the episode. At the end of the shift, appellant advised the office manager that she could not take it any more and was quitting her employment. Appellant contended that the cook's conduct was inappropriate and that she did not have to accept that type of abuse. The employer contended that appellant had the authority to discipline or suspend the cook and that she did not exercise that authority. Furthermore, the employer's manager testified that the appellant was to blame for many of the problems between the two, and the cook resented the appellant's superior attitude that the cook was stupid or not a sophisticated chef. The Administrator found that appellant did not quit her position for just cause. The Hearing Officer at the Board of Review found that appellant "had authority to discipline the cook, [but] she did not exercise this authority" and concluded appellant "quit work without just cause." The Board of Review disallowed a further appeal and appellant appealed to the Court of Common Pleas. On August 24, 1994, the Court of Common Pleas found "[t]he decision of the Board of Review being reasonable, lawful and not against the manifest weight of the evidence is hereby affirmed." Appellant's timely appeal to this Court ensued. - 4 - The Court of Appeals role in reviewing the decision below is limited to a determination as to whether the Common Pleas Court abused its discretion in reversing the decision of the Board of Review. An abuse of discretion "connotes more than an error of judgment; it implies a decision without a reasonable basis, one which is clearly wrong." Angelkovski v. Buckeye Potato Chips (1983), 11 Ohio App.3d 159, 161. Kiss v. Ohio Motor Vehicle Dealers Bd. (1991), 76 Ohio App.3d 677, 683; Pollack v. Y.A.B.I. P.T.A. (June 24, 1993), Cuyahoga App. No. 62733, unreported; Ohio Turnpike Commission v. Saunders (Nov. 12, 1992), Cuyahoga App. No. 61059, unreported. Pursuant to R.C. 4141.28(O), the scope of review of the Common Pleas Court upon appeal from the Board of Review is limited to determining whether the Board of Review's decision is "unlawful, unreasonable or against the manifest weight of the evidence." Warrensville Hts. v. Jennings (1991), 58 Ohio St.3d 206, 207; Piazza v. Ohio Bur. of Emp. Serv. (1991), 72 Ohio App.3d 353, 356; Kilgore v. Board of Review (1965), 2 Ohio App.2d 69. By statute (R.C. 4141.28(J)) the trier of fact is the referee for the Board of Review and her decision may not be second guessed or disturbed by weighing the evidence. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 518: The decision of purely factual questions is primarily within the province of the referee and the board of review. The courts reverse such decisions only when found to be contrary to law or against the manifest weight of the evidence. This - 5 - court does not consider the question of the weight of the evidence. When there is competent, credible evidence to support the Board of Review's decision going to all the essential elements of the controversy, the Board of Review's finding must be upheld by the court. Angelkovski, supra; Central Ohio Joint Vocational School Dist. Bd. of Edn. v. Ohio Bur. of Emp. Serv. (1986), 21 Ohio St.3d 5, 8; Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41; Saunders, supra. The Unemployment Compensation Act does not protect against voluntary unemployment. R.C. 4141.29(D)(2) provides that no employee may be paid benefits if the administrator finds "(a) [h]e quit his work without just cause or has been discharged for just cause in connection with his work ***." Just cause in a statutory sense is "that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17, citing Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12; Sachs Corp. of U.S.A. v. Rossman (1983), 9 Ohio App.3d 188. The determination of what constitutes quitting with just cause is a question of fact to be determined on a case by case basis. The determination depends on the unique fact pattern of each case. Irvine, supra; Bindas v. Administrator, O.B.E.S. (Aug. 30, 1990), Cuyahoga App. No. 57425, unreported. The burden of proof is on the claimant to show his entitlement to benefits by demonstrating just cause for quitting work. Irvine, supra; Shannon v. Bur. of Unemp. - 6 - Comp. (1951), 155 Ohio St. 53; Piazza, supra. Each case must be decided upon its particular merits. Peyton, supra. Ohio case law holds that mere dissatisfaction with one's duties is not just cause to quit employment. Jobes v. Administrator, O.B.E.S. (Dec. 17, 1992), Cuyahoga App. No. 63702, unreported; Kupresanin v. Administrator, O.B.E.S. (June 27, 1991), Cuyahoga App. No. 58798, unreported; Phillips v. Administrator, O.B.E.S. (April 18, 1985), Cuyahoga App. No. 48900, unreported. In the instant case, the referee found that appellant quit her employment with the restaurant because she was dissatisfied with the work environment and did not have just cause for doing so. Appellant was hired as a daytime manager to improve the quality of the restaurant. In accordance with her duties as day manager, appellant was given authority to discipline and suspend employees as well as the right to make recommendations as to the discharge of employees. She did not get along with the cook who was temperamental and verbally abusive. She did not exercise her authority to suspend or discipline the cook for his conduct, but gave into his tantrums or asked the owner to control him. She quit because she could not stand the cook anymore and was apparently unwilling to exercise her authority. The failure of appellant to exercise her authority deemed her resignation without just cause. A claimant for unemployment compensation should exhaust all means available prior to voluntarily terminating employment. Krawczyszyn v. Ohio Bur. of Emp. Serv. (1989), 54 Ohio App.3d 35. These - 7 - findings by the referee are supported by the evidence in the record. Accordingly, we find no abuse of discretion in the trial court's ruling. The denial of benefits is not against the manifest weight of the evidence nor contrary to law given the Board of Review's findings. Appellant's assignment of error is overruled. Judgment 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 Court of Common Pleas 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. JAMES D. SWEENEY, PRESIDING JUDGE JAMES M. PORTER, JUDGE TERRENCE O'DONNELL, 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 .