COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73476 DONALD LESIAK : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION OHIO BUREAU OF EMPLOYMENT : SERVICES : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OCTOBER 22, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-332872 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: DONALD LESIAK, Pro Se 7244 Ridge Road Parma, Ohio 44129-6636 For Defendant-Appellee: BETSEY NIMS FRIEDMAN, ESQ. Assistant Attorney General 12th Floor State Office Building 615 West Superior Avenue Cleveland, Ohio 44113-1899 For Kent State University: SIDNEY C. FOSTER, ESQ. 500 First National Tower Akron, Ohio 44308 PATRICIA ANN BLACKMON, A.J.: Plaintiff-appellant Donald Lesiak appeals a decision by the trial court in favor of defendant-appellee Ohio Bureau of -2- Employment Services in Lesiak's appeal of the denial of his claim for unemployment benefits. Lesiak assigns the following two errors for our review: I. THE TRIAL COURT ERRED BECAUSE IT DISMISSED THIS APPEAL WITH PREJUDICE WITHOUT FIRST GIVING APPELLANT/PLAINTIFF PRIOR NOTICE OF THE DISMISSAL. II. THE TRIAL COURT ERRED IN UPHOLDING THE DECISION OF THE OHIO UNEMPLOYMENT COMPENSATION BOARD OF REVIEW BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Lesiak was employed as a part-time Technology Instructor at Kent State University from August 20, 1995 to December 23, 1995, a period of nineteen weeks. Thereafter, Lesiak worked for Curtron, Inc. in Troy, Michigan as a Consulting Engineer from March 6, 1995 to March 24, 1995. On March 28, 1996, Lesiak filed for unemployment benefits at the Parma, Ohio office of OBES. R.C. 4141.01(R) required that, in order to receive unemployment compensation, an applicant must have been employed in at least twenty qualifying weeks within the applicant's base period. The base period is defined as the first four of the last five completed calendar quarters immediately preceding the first day of the applicant's benefit year or the four most recently completed calendar quarters preceding the first day of the individual's benefit year. Lesiak's base period was -3- determined to be from October 1, 1994 to September 30, 1995 or from January 1, 1995 to December 31, 1995. OBES denied Lesiak's claim, concluding that he had not been employed for the requisite twenty weeks during either base period. Lesiak appealed to the OBES administrator, arguing that OBES failed to consider his three weeks of employment with Curtron. The initial decision was affirmed on June 11, 1996. On January 16, 1997, Lesiak's appeal to the Unemployment Compensation Board of Review was also denied. The Board found that Lesiak was an independent contractor while employed at Curtron and that his employment there could not be counted when calculating his weeks of qualifying employment. When his request for further review was denied, Lesiak appealed to Common Pleas Court. The Court affirmed the Board's decision on October 9, 1997. This appeal followed. In his first assignment of error, Lesiak argues the trial court erroneously failed to notify him of its intention to affirm the denial of his application for unemployment benefits. He claims that, under Civ.R. 41(B), a trial court must notify plaintiff's counsel before dismissing an action for failure to prosecute or non-compliance with court orders. On October 9, 1997, the court issued the following journal entry with respect to Lesiak's appeal: The decision of the Review Commission of the Ohio Bureau of Employment Services is affirmed. Judgment for the deft. Costs to pltf. Vol 2137 Page 0069.. Notice issued. Case dismissed with prejudice. 10/09/97. -4- The court's journal entry made clear that it was affirming the OBES decision. Under R.C. 4141.28(O)(1), in an appeal from a commission decision, the court must affirm such decision unless it finds that the decision is unlawful, unreasonable, or against the manifest weight of the evidence. The trial court conducted a case management conference on the case on July 11, 1997 and opted to decide the case on the existing court record. Lesiak, OBES, and KSU all submitted trial briefs and Lesiak also submitted a reply brief. The trial court's subsequent decision affirming the commission's determination was based upon the evidence submitted. It is clear that the case was not dismissed for failure to prosecute or to comply with the court's rules or orders. Lesiak's argument that the court's decision was a dismissal with prejudice under Civ.R. 41(B) is not supported by the record. The court's journal entry stated the court was affirming the Board of Review's decision and entering judgment in favor of OBES. The case was decided on the merits of Lesiak's appeal. The court's language dismissing the case was surplusage and was without legal effect in light of the trial court's clear intention to issue a decision on Lesiak's appeal. Civ.R. 41(B)(1) is inapplicable to this case. Accordingly, we overrule Lesiak's first assignment of error. In his second assignment of error, Lesiak argues the trial court's decision was against the manifest weight of the evidence. The decision of an unemployment compensation board may not be reversed as against the manifest weight of the evidence if it is -5- supported by some evidence in the record. Binger v. Whirlpool Corp. (1996), 110 Ohio App.3d 583. The decision must be upheld unless it is shown to be clearly wrong and without any reasonable basis. R.C. 4141.01(B)(1) defines employment as follows: Service performed by an individual for remuneration under any contract of hire, written or oral, express or implied *** without regard to whether such service is executive, managerial, or manual in nature *** unless it is shown to the satisfaction of the administrator that such individual has been and will continue to be from direction or control over the performance of such service, both under a contract of service and in fact. When deciding whether someone is an employee or an independent contractor, the key factual determination to be made is who has the right to control the manner or means of doing the work. Gersper v. Ohio Dept. Of Hwy. Safety (1994), 95 Ohio App.3d 1, 5; Testement v. Natl. Hwy. Express (1996), 114 Ohio App.3d 529, 532. Lesiak argued that he was an employee of Curtron, rather than an independent contractor. His claim is supported by evidence in the record that Lesiak had a regular reporting schedule, that he had to notify his Project Manager if he was unable to report to work, that his Project Manager had the authority to tell Lesiak what manner or method to use to accomplish his work, and that Curtron had the right to tell Lesiak to change the way he performed his duties. In light of the evidence presented, we cannot conclude that Lesiak was free from the direction or control of Curtron with respect to the performance of his duties. Accordingly, Lesiak -6- argues his work with Curtron fits within Ohio's statutory definition of employment. However, Curtron was a company based in Michigan. R.C. 4141.43 provides that the OBES administrator may agree that services which may serve as the basis for unemployment benefits in another state shall be deemed to be employment for purposes of qualifying claimants for unemployment benefits in Ohio. However, the other state must have agreed to reimburse the Ohio unemployment compensation fund for that portion of the benefits paid which is fairly attributable to the services performed in such other state. In other words, unless Lesiak's employment with Curtron could be used to qualify him for benefits in Michigan, it cannot be used to qualify to benefits in Ohio. [T]he Ohio legislature did not intend to extend benefits to Ohio residents based on employment in other jurisdictions unless that employment could be used to qualify the applicant for benefits in the other jurisdiction. Howard v. Flag City Water, Inc. (1991), 74 Ohio App.3d 446, 449. In this case, the trial court received a Response for Transfer of Wages indicating that Lesiak's employment with Curtron was not covered employment within the state of Michigan because he was a contract employee. Since Lesiak's employment with Curtron could not be used to qualify him for unemployment benefits in Michigan, it could not be used to qualify him for unemployment benefits in Ohio. Without adding his employment with Curtron, Lesiak only had nineteen of the required twenty weeks of covered employment during the applicable base period. Accordingly, the trial court did not err in affirming the OBES' decision to deny Lesiak's claim for unemployment benefits. Lesiak's second assignment of error is without merit. Judgment affirmed. 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. Exceptions. NAHRA, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .