[Cite as Armatas v. Aultman Health Found., 2016-Ohio-2715.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STEVEN A. ARMATAS                               :             JUDGES:
                                                :             Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                     :             Hon. W. Scott Gwin, J.
                                                :             Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
AULTMAN HEALTH                                  :             Case No. 2015CA00225
FOUNDATION, ET AL.                              :
                                                :
        Defendants-Appellees                    :             OPINION



CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 2015CV02003


JUDGMENT:                                                     Dismissed




DATE OF JUDGMENT:                                             April 25, 2016



APPEARANCES:

For Plaintiff-Appellant                                       For Defendants-Appellees

STEVEN A. ARMATAS                                             ORVILLE L. REED
7690 Bucknell Circle, NW                                      DAVID W. HILKERT
North Canton, OH 44720                                        3475 Ridgewood Road
                                                              Akron, OH 44333

                                                              STEPHAN C. KREMER
                                                              80 South Summit Street
                                                              400 Courtyard Square
                                                              Akron, OH 44308
Stark County, Case No. 2015CA00225                                                      2

Baldwin, J.

      {¶1}    Appellant Steven A. Armatas appeals a judgment of the Stark County

Common Pleas Court dismissing his complaint against appellee Richard Milligan.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On October 11, 2014, Alexander Armatas, appellant’s father, passed away

while being treated at Aultman Hospital after suffering a cardiac episode. On November

24, 2014, appellant, who is an attorney, submitted a "Grievance" letter outlining his

concerns regarding his father's medical care to Aultcare MAP (Medicare Advantage Plan)

and Aultman PAG (Patient Advocacy Group). Aultcare MAP investigated the grievance

and informed appellant the results were confidential. Appellant never received a reply

from PAG. As a result, appellant went to Aultman Hospital to inquire about his grievance

filed with PAG. Appellant was told to contact appellee, who was the hospital's outside

counsel.

      {¶3}    In an email dated May 29, 2015, Mark Rose, Senior Vice-President of Legal

Affairs of the Aultman Health Foundation and its Subsidiaries and Related Entities,

informed appellant he was not to contact anyone from Aultman Hospital and as an

attorney, he needed to abide by ethical obligations required by Ohio law. Mr. Rose told

appellant to contact appellee. Appellant sent Mr. Rose a response, explaining that his

analysis of the Ohio Rules of Professional Conduct for Attorneys was incorrect.

      {¶4}    In a letter dated June 9, 2015, appellee informed appellant that any further

communications concerning Aultman Health Foundation and its related entities should be

done through him. Appellant responded to appellee via a letter dated June 18, 2015,

informing him that Professional Conduct Rule 4.2 did not apply to him in a personal matter
Stark County, Case No. 2015CA00225                                                       3


related to his own father, and submitted a copy of the letter to the Stark County Bar

Association (hereinafter "SCBA").     The SCBA referred the matter to the Office of

Disciplinary Counsel (hereinafter "ODC"). By letter dated August 19, 2015, the ODC

concluded appellee's conduct did not violate any of the ethics codes.

      {¶5}   On September 29, 2015, appellant filed a complaint for declaratory

judgment against Aultman Health Foundation and appellee. Appellant sought an opinion

about Professional Conduct Rule 4.2 and his right to interview Aultman Hospital

employees. He also sought injunctive relief, punitive damages, attorney fees, and costs.

On October 15, 2015, appellee filed a Civ.R. 12(B)(6) motion to be dismissed from the

case. Appellant filed a brief in response on October 28, 2015, and appellee filed a reply

brief on November 9, 2015. On November 20, 2015, appellant sought leave to file a

surreply brief. By orders filed November 23, 2015, the trial court denied the leave and

granted appellee's motion to dismiss, finding appellee acted in good faith on behalf of his

client(s) and was therefore immune from the action.

      {¶6}   Appellant assigns the following errors on appeal to this Court:

      {¶7}   "I. THE TRIAL COURT ERRED IN DISMISSING ATTORNEY MILLIGAN

AS A DEFENDANT IN THE MATTER BECAUSE A DECLARATORY JUDGMENT

ACTION IS NOT THE PROPER SUBJECT OF A RULE 12(B)(6) MOTION TO DISMISS

ABSENT SPECIAL FINDINGS OF LAW BY THE TRIAL COURT."

      {¶8}   "II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT

CONSIDERING PLAINTIFF'S SURREPLY BRIEF PRIOR TO RENDERING ITS ORDER

GRANTING ATTORNEY MILLIGAN'S MOTION TO DISMISS PURSUANT TO

CIV.R.12(B)(6)."
Stark County, Case No. 2015CA00225                                                            4


       {¶9}   "III. THE TRIAL COURT ERRED IN GRANTING ATTORNEY MILLIGAN'S

MOTION TO DISMISS PURSUANT TO CIV.R.12(B)(6) WHEN IT FOUND THAT 'MR.

MILLIGAN ACTED IN GOOD FAITH ON BEHALF OF HIS CLIENTS, AULTMAN HEALTH

FOUNDATION AND ITS RELATED ENTITIES, AND THAT HE IS, THEREFORE,

IMMUNE FROM SUIT BY [PLAINTIFF] IN THE WITHIN MATTER.' "

       {¶10} As a preliminary matter, we address the issue of whether the judgment

appealed from is a final, appealable order.

       {¶11} Ohio law provides that appellate courts have jurisdiction to review only the

final orders or judgments of inferior courts in their district. See, generally, Section 3(B)(2),

Article IV, Ohio Constitution; R.C. 2505.02. If an order is not final and appealable, then

an appellate court has no jurisdiction to review the matter and it must be dismissed.

       {¶12} To be final and appealable, an order which adjudicates one or more but

fewer than all the claims or the rights and liabilities of fewer than all the parties must meet

the requirements of R.C. 2505.02 and Civ.R. 54(B). Civil Rule 54(B) states as follows:

              When more than one claim for relief is presented in an action whether

       as a claim, counterclaim, cross-claim, or third-party claim, and whether

       arising out of the same or separate transactions, or when multiple parties

       are involved, the court may enter final judgment as to one or more but fewer

       than all of the claims or parties only upon an express determination that

       there is no just reason for delay. In the absence of a determination that there

       is no just reason for delay, any order or other form of decision, however

       designated, which adjudicates fewer than all the claims or the rights and

       liabilities of fewer than all the parties, shall not terminate the action as to
Stark County, Case No. 2015CA00225                                                        5


       any of the claims or parties, and the order or other form of decision is subject

       to revision at any time before the entry of judgment adjudicating all the

       claims and the rights and liabilities of all the parties.

       {¶13} Thus, Civ. R. 54(B) makes mandatory the use of the language, “there is no

just reason for delay.” Where multiple claims and/or multiple parties exist and not all have

reached final judgment, without the Civ. R. 54(B) language, the order is subject to

modification and is neither final nor appealable. Noble v. Colwell, 44 Ohio St.3d 92, 540

N.E.2d 1381(1989).

       {¶14} The judgment appealed from does not determine the matter as to all parties.

The matter is resolved in regard to appellee Richard Milligan only, and the claims against

Aultman Health Foundation remain pending. The entry does not contain the required

language of Civ.R. 54(B) that “there is no just cause for delay.” Having failed to meet the

requirements of Civ.R. 54(B), we find the judgment appealed from is not a final appealable

order. Accordingly, this court has no jurisdiction to hear appellant's appeal.
Stark County, Case No. 2015CA00225                                                  6


      {¶15} The appeal is dismissed for want of jurisdiction and remanded to the Stark

County Court of Common Pleas for further proceedings consistent with law and this

opinion.


By: Baldwin, J.

Farmer, P.J. and

Gwin, J. concurs.
