COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69171 MYRIAM GONZALES : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : STOUFFER FOOD CORP., ET AL. : OPINION : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-277033. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Alan I. Goodman, Esq. 620 Terminal Tower Cleveland, OH 44113 For Defendants-Appellees: Terence K. O'Brien, Esq. Louis J. Licata, Esq. Ellyn T. Tamulewicz, Esq. 750 Courthouse Square Building 310 Lakeside Avenue, West Cleveland, OH 44113 Betty Montgomery, Esq. Ohio Attorney General State Office Building, 12th Floor 615 W. Superior Avenue Cleveland, OH 44113 -3- DAVID T. MATIA, J.: Myriam Gonzalez, appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Stouffer Food Corp, et al.'s, appellees', motion for judgment pursuant to Civ.R. 41(B). Appellant assigns one error for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On September 19, 1994, Myriam Gonzalez, appellant, filed a notice of appeal from the decision of the Industrial Commission of Ohio with the Cuyahoga County Court of Common Pleas. The specific order being appealed was the denial of an amended workers' compensation claim for an additional physical condition, i.e., erythema nodosum. However, appellant did not file a complaint. On March 20, 1995, Stouffer Foods Corporation, et al., appellees, motioned for judgment pursuant to Civ.R. 41(B)(1) and (3). Appellees argued since appellant failed to file her complaint within thirty (30) days after filing the notice of appeal, as mandated by R.C. 4123.512(D), her claim should be dismissed on the merits for failure to prosecute. Appellant quickly filed a motion to file complaint instanter. Appellant stated the reason for failing to file the complaint with the notice of appeal was unknown. However, since both parties are well aware of the issues, appellant argued, appellees suffered no prejudicial effect and its motion to file complaint instanter should be granted. On March 28, 1995, appellees filed a motion in opposition to appellant's motion to file complaint instanter. On April 5, 1995, -4- appellant filed a motion in opposition to appellees' motion for judgment. Appellant included an affidavit from counsel stating the reason for the failure to timely file the complaint was due to "a rush of other legal matters caused by a trial" and that he was "out of the office on September 15, 1994 and part of September 14, 1994, in observance of the Jewish Holiday of Yom Kippur." The trial court subsequently granted appellees' motion for judgment pursuant to Civ.R. 41(B)(1) and (3) on May 23, 1995. Appellant timely filed the appeal which was dismissed by this court for a lack of a final appealable order. After appellant's motion to reconsider was granted, the appeal is properly before this court. II. ASSIGNMENT OF ERROR Myriam Gonzalez, appellant, states as her sole assignment of error: THE LOWER COURT ERRED IN SUSTAINING THE APPELLEES['] MOTION TO DISMISS THE APPELLANT'S NOTICE OF APPEAL AND FAILING TO GRANT THE APPELLANT'S MOTION TO FILE HER AMENDED COMPLAINT INSTANTER. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEES' MOTION FOR JUDGMENT PURSUANT TO CIV.R. 41(B). Myriam Gonzalez, appellant, argues the trial court abused its discretion when it granted appellees' motion for judgment pursuant to Civ.R. 41(B). Specifically, appellant argues the only act necessary to effect an appeal and vest jurisdiction with the court was the filing of its notice of appeal. Secondly, appellant argues under the circumstances of this case, appellees -5- were not prejudiced by her failure to timely file the complaint. Finally, appellant argues that she did not callously disregard the statutory requirements regarding the filing of the complaint. Rather, appellant took immediate action once she had been notified of her error. For these reasons, appellant argues the concept of "excusable neglect" should have been applied to her actions. Appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR JUDGMENT UNDER CIV.R. 41(B). Civ.R. 41(B)(1) provides: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or a claim. The power to dismiss a case for lack of prosecution pursuant to Civ.R. 41(B) rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. See Penbaur v. Leis (1982), 1 Ohio St.3d 89. An abuse of discretion connotes more than an error of law or judgment, it implies the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING APPELLEES' MOTION FOR JUDGMENT PURSUANT TO CIV.R. 41(B). R.C. 4123.512 mandates when appealing a decision of the Industrial Commission, a claimant has sixty (60) days in which to file the notice of appeal with a court of common pleas. -6- Subsequently, a claimant must file a complaint/petition pursuant to R.C. 4123.512(D) which reads in pertinent part: The claimant shall, within thirty days after the filing of the notice of appeal file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action. In Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, the Ohio Supreme Court held that it was a claimant's affirmative duty to file his/her petition with the court of common pleas within thirty days after filing his/her notice of appeal. Id. at 118. The court went further: The law does not, however, permit a claimant to disregard with impunity his statutory obligation to timely prosecute his R.C. 4123.519 [amended and renumbered to R.C. 4123.51.2] claim. Were this court to hold that a claimant may file an untimely complaint in a R.C. 4123.519 [amended and renumbered to R.C. 4123.51.2] appeal without first obtaining leave of court, the 30-day statutory time limit would be rendered meaningless. Having failed to comply with the statute, it becomes the claimant's burden to show that his failure is due to excusable neglect or other good cause. Nevertheless, it is an abuse of discretion to dismiss R.C. 4123.519 [amended and renumbered to R.C. 4123.51.2] proceedings on the basis of a claimant's failure to act where he has not been given notice and an opportunity to show cause why the proceedings should not have been dismissed and judgment entered against him. Id. at 119-120. In that case, since the claimant was not given notice that his claim would be dismissed absent a showing of good -7- cause, the claimant was permitted to seek leave of court to file his complaint. Id. In the case sub judice, appellant was given notice of her failure to timely file the complaint. Before the trial court granted appellees' motion, appellant submitted an affidavit explaining that the reason for failing to file within thirty (30) days as required by R.C. 4123.512(D) was due to "a rush of other legal matters caused by a trial" and that he was "out of the office on September 15, 1994 and part of September 14, 1994, in observance of the Jewish Holiday of Yom Kippur." Thus, appellant received notice that the complaint would be dismissed absent a showing of good cause. See, also, Givens v. Garlando (1985), 27 Ohio App.3d 287. We agree with the trial court in holding appellant's reasons for failing to timely file her complaint do not rise to the level of "excusable neglect." Accordingly, the trial court did not abuse its discretion in granting appellees' motion for judgment pursuant to Civ.R. 41(B). Judgment affirmed. -8- It is ordered that appellees recover of appellant their 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, P.J. and DYKE, J., CONCUR. DAVID T. MATIA 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 .