[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
