Bobst v. Chem-Tech Consultants, Inc.Bobst v. Chem-Tech Consultants, Inc.
Case Information
*1
[Cite as
Bobst v. Chem-Tech Consultants, Inc.
,
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 O P I N I O N 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 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 CASE [1] {¶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). “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.
{¶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,
which transforms a nonfinal order into a final appealable order.” Wisintainer v. Elcen
Power Strut Co. ( 1993),
Gwin, P.J. and
Delaney, J. concur
___________________________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. W. SCOTT GWIN ___________________________________ HON. PATRICIA A. DELANEY 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
Notes
[1] A rendition of the facts is unnecessary for our disposition of this appeal.
[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.