Bobst v. Chem-Tech Consultants, Inc. , 2011 Ohio 4618 ( 2011 )

[Cite as Bobst v. Chem-Tech Consultants, Inc., 2011-Ohio-4618.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SCOTT BOBST JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11CA35
CHEM-TECH CONSULTANTS, INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2010-CV-0541
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 12, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ERIC S. MILLER J. JEFFREY HECK
13 Park Avenue West, Suite 608 One Marion Ave., Suite 104
Mansfield, Ohio 44902 Mansfield, Ohio 44903
Richland County, Case No. 11CA35 2
Hoffman, J.
{¶1} Plaintiff-appellant Scott Bobst appeals the March 11, 2011 Judgment
Entry entered by the Common Pleas Court of Richland County, which dismissed his
complaint following a bench trial. Defendant-appellee is Chem-Tech Consultants, Inc.
STATEMENT OF THE CASE1
{¶2} Appellant filed a declaratory judgment action against Appellee, his former
employer. The trial court dismissed Appellant’s complaint with prejudice pursuant to
Civ.R. 12(B)(6). Upon appeal, this Court reversed that judgment and remanded the
cause for further proceedings.
{¶3} Appellee filed a counterclaim. After remand, the trial court bifurcated
Appellant’s declaratory judgment action from Appellee’s counterclaim, and proceeded to
a bench trial on Appellant’s declaratory judgment complaint. The trial court granted
Appellee’s motion for dismissal of the complaint pursuant to Civ.R. 41(B)(2) at the close
of Appellant’s case via Judgment Entry filed Mach 11, 2011.
{¶4} It is from that entry Appellant prosecutes this appeal, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED IN DISMISSING THE PLAINTIFF’S CASE
UNDER RULE 41(B)(2).
{¶6} “II. THE TRIAL COURT ERRED IN HOLDING THAT IT COULD NOT
HEAR AN ACTION TO INTERPRET THE SEVERANCE AGREEMENT AND THAT
PLAINTIFF HAD NO RIGHT TO BRING THIS ACTION.
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Richland County, Case No. 11CA35 3
{¶7} “III. THE TRIAL COURT ERRED IN FAILING TO HOLD THAT THE NON-
COMPETITION AGREEMENT HAD BEEN MERGED INTO AND NEGATED BY THE
SEVERANCE AGREEMENT.
{¶8} “IV. THE TRIAL COURT ERRED IN HOLDING THAT THE PROVISION IN
THE NON-COMPETITION AGREEMENT RELATING TO NON-CUSTOMERS
(SECTION 2 OF PLAINTIFF’S COMPLAINT EXHIBIT B) COULD BE ENFORCED
ABSENT A FINDING OF TERMINATION FOR JUST CAUSE.”
{¶9} We find the judgment being appealed is not a final appealable order
pursuant to R.C. 2505.02. We do so being fully aware the judgment entry contains
Civ.R. 54(B) language there is no just reason for delay, and proclaims it represents the
final order of the court. Our reasons follow.
{¶10} While it is clear a declaratory judgment action is a “special proceeding”
under R.C. 2505.02, the Ohio Supreme Court held in Walburn v. Dunlap (2009), 121
Ohio St.3d 373, 904 N.E.2d 863, an order declaring insurance coverage exists but does
not address damages is not a final order even though made in a special proceeding. Id.at syllabus. We find the situation here analogous in that the matter of damages sought
by Appellee in its counterclaim has not been addressed. We find the counterclaim is
inextricably intertwined with Appellant’s declaratory judgment action.
{¶11} A finding there is no just cause for delay “…is not a mystical incantation
which transforms a nonfinal order into a final appealable order.” Wisintainer v. Elcen
Power Strut Co. (1993), 67 Ohio St.3d 352, 617 N.E.2d 1136, citing Chef Italiano Corp.
v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64. Because we find the
counterclaim inextricably intertwined with the original declaratory judgment action, we
Richland County, Case No. 11CA35 4
find the trial court’s March 11, 2011 Judgment Entry is not a final appealable order
despite inclusion of Civ.R. 54(B) certification.2 We find judicial economy is not best
served by allowing piecemeal review of the two actions between these parties.
{¶12} Appellant’s appeal is dismissed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
2
We hasten to note the trial court’s “advisory findings” as to the merits of Appellant’s
declaratory judgment complaint are merely dicta and do not create any law of the case
should further appellate review occur.
Richland County, Case No. 11CA35 5
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SCOTT BOBST :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
CHEM-TECH CONSULTANTS, INC. :
:
Defendant-Appellee : Case No. 11CA35
For the reason set forth in our accompanying Opinion, this appeal is dismissed.
Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY