Bobst v. Chem-Tech Consultants, Inc.

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[Cite as Bobst v. Chem-Tech Consultants, Inc., 2011-Ohio-4618.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT SCOTT BOBST Plaintiff-Appellant JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vsCase 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 13 Park Avenue West, Suite 608 Mansfield, Ohio 44902 J. JEFFREY HECK One Marion Ave., Suite 104 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 {¶7} 3 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} THE IV. THE TRIAL COURT ERRED IN HOLDING THAT THE PROVISION IN 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 -vsCHEM-TECH CONSULTANTS, INC. Defendant-Appellee : : : : : : : : : JUDGMENT ENTRY 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

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