[Cite as McMasters v. Kilbarger Constr., Inc., 2012-Ohio-4353.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
SUE MCMASTERS (GUARDIAN)                              :       Hon. W. Scott Gwin, P.J.
                                                      :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee           :       Hon. Julie A. Edwards, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2012-CA-11
KILBARGER CONSTRUCTION, INC.,                         :
ET AL                                                 :
                                                      :       OPINION
                     Defendant-Appellant




CHARACTER OF PROCEEDING:                                  Civil appeal from the Muskingum County
                                                          Court of Common Pleas, Case No.
                                                          CD2009-0397

JUDGMENT:                                                 Dismissed

DATE OF JUDGMENT ENTRY:                                   September 21, 2012

APPEARANCES:

For Sue McMasters                                         For Kilbarger Construction, Inc.

JAMES AYERS                                               SARA ROSE
165 N. High Street                                        P.O. Box 188
Columbus, OH 43215                                        Pickerington, OH 43147

JOSEPH NAVIN
132 Reserve Drive
Granville, OH 43023

For Bureau of Workers’ Compensation
LYDIA M. ARKO
Attorney General’s Office
150 East Gay Street, 22nd Floor
Columbus, OH 43215-3130
[Cite as McMasters v. Kilbarger Constr., Inc., 2012-Ohio-4353.]


Gwin, P.J.

        {¶1}     Appellant, Kilbarger Construction, Inc. [“Kilbarger”] appeals from the

January 27, 2012 judgment entry of the Muskingum County Court of Common Pleas in

an action for dependent benefits under Workers’ Compensation for the death of Nathan

Hallowell resulting from an automobile accident on November 14, 2007 ("Accident").

Appellees are Sue McMasters, Guardian of Braxton Bailey, infant son of Nathan

Hallowell, deceased [“McMasters”] and the Administrator of the Bureau of Workers’

Compensation [“Bureau”].

                                     FACTS PROCEDURAL HISTORY

        {¶2}     Workers' Compensation claims were filed with the Bureau on behalf of

Hallowell by McMasters and by his co-workers, Derek Petry, appellee in Case CT2012-

0013, ["Petry"], and Robert Perry, appellee in Case CT2012-0012, [“Perry"], who were

all involved in the same automobile accident on November 14, 2007. Kilbarger

employed Petry, Hallowell, and Perry as drilling riggers. The Industrial Commission

(“IC”) allowed all three (3) claims. The IC initially allowed the claim in this case

designated as BWC Claim #07-890684.

        {¶3}     Kilbarger initiated this action by appealing, pursuant to R.C. 4123.512, the

order of the IC finding that McMasters was entitled to participate in dependent benefits

of the Workers' Compensation Fund for the death of Hallowell resulting from the

accident and that the accident occurred while Hallowell was within the course and

scope, and arose out of his employment with Kilbarger. McMasters timely filed her

complaint.
Muskingum County, Case No. 2012-CA-11                                                    3


      {¶4}   On September 21, 2010, the trial court consolidated the cases for

purposes of discovery and to determine all common questions of law. After discovery,

Kilbarger filed a motion for summary judgment, and McMasters, as well as the other

appellees filed cross-motions for summary judgment.

      {¶5}   On December 5, 2011, the court issued a Findings and Decision, which

stated:

             In order for a Court to grant a motion for summary judgment, it must

      find that there is not a genuine issue of material fact. After reviewing the

      motions, the Court determines that there is not a genuine issue of material

      fact and that the Plaintiffs were within the scope of their employment at the

      time of the accident. Counsel for Plaintiffs shall prepare entries in

      conformity with this decision.

      {¶6}   On December 14, 2011, Kilbarger filed a "Motion for Relief from Judgment

or in the Alternative Motion for Findings of Fact and Conclusions of Law."

      {¶7}   The trial court found there were no material issues of fact, that appellees

were within the course of their employment, and that the accident arose out of their

employment. The Court rendered separate judgment entries on behalf of each of the

appellees. On January 27, 2012, the judgment entry in McMasters’ case states, in part:

             The Court finds that in applying the "totality of circumstances" test

      found in Lord v. Daugherty (1981), 66 Ohio St.2d 441, Plaintiff's

      automobile accident occurred within the course and scope, and arose out

      of, his employment with the Defendant on November 14, 2007. The Ohio

      Supreme Court in Buckman v. Cubby Drilling (1998), 81 Ohio St.3d 117,
Muskingum County, Case No. 2012-CA-11                                                    4


       specifically decided that the "special hazard" exception to the "coming and

       going" rule applies to drilling industry workers.

              ***

              It is the Order of the Court that [McMasters’] Motion for Summary

       Judgment is SUSTAINED; and Defendant [Kilbarger Construction, Inc.'s]

       Motion for Summary Judgment is OVERRULED.

                                  ASSIGNMENTS OF ERROR

       {¶8}   Kilbarger raises one assignment of error,

       {¶9}   “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S SUMMARY

JUDGMENT MOTION AND IN DENYING KILBARGER'S SUMMARY JUDGMENT

MOTION, BECAUSE APPELLEE’S ACCIDENT DID NOT ARISE OUT OF HIS

EMPLOYMENT.”

                                            ANALYSIS

       {¶10} At the outset, this court must determine whether the trial court's decision is

a final, appealable order that vests this court with jurisdiction. Although not an issue

raised by either party, this court must address, sua sponte, whether there is a final

appealable order ripe for review. State ex rel. White vs. Cuyahoga Metro. Hous. Aut., 79

Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72. Thus, we shall first consider

whether this court has jurisdiction over Kilbarger’s appeal.

       {¶11} To be final and appealable, an order must comply with R.C. 2505.02. R.C.

2505.02(B) provides the following in pertinent part:
Muskingum County, Case No. 2012-CA-11                                                      5


               (B) An order is a final order that may be reviewed, affirmed,

      modified, or reversed, with or without retrial, when it is one of the

      following:

               (1) An order that affects a substantial right in an action that in effect

      determines the action and prevents a judgment;

               (2) An order that affects a substantial right made in a special

      proceeding or upon a summary application in an action after judgment.

      {¶12} Therefore, to qualify as final and appealable, the trial court's order must

satisfy the requirements of R.C. 2505.02, and if the action involves multiple claims

and/or multiple parties and the order does not enter a judgment on all the claims and/or

as to all parties, the order must satisfy Civ.R. 54(B) by including express language that

“there is no just reason for delay.” Internatl. Bhd. of Electrical Workers, Local Union No.

8 v. Vaughn Indus., L.L.C., 116 Ohio St. 3d 335, 879 N.E. 2d 187, 2007-Ohio- 6439, ¶

7, citing State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002–Ohio–

5315, ¶ 5–7.

      {¶13} In the case at bar, the trial court found that the accident occurred within

the course and scope, and arose out of Hallowell’s employment with Kilbarger.

However, after the trial court sustained McMasters’ motion for summary judgment and

overruled Kilbarger’s motion for summary judgment, the court continued,

               Attorney fees and litigation expenses are to be awarded to

      Plaintiff’s Attorney of record...pursuant to R.C. 4123.512(F) upon

      submission of a Motion and Affidavit demonstrating effort expended and

      costs of litigation.
Muskingum County, Case No. 2012-CA-11                                                   6


      {¶14} The decision to grant or deny fees under R.C. 4123.512(F) lies within the

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion. Azbell v. Newark Group, Inc., 5th Dist. No. 07 CA 00001, 2008–Ohio–2639.

      {¶15} R.C. 4123.512(F) authorizes the trial court to award attorney fees within a

statutory limit to the successful claimant. The version of R.C. 4123.512(F) applicable to

this matter reads:

             (F) The cost of any legal proceedings authorized by this section,

      including an attorney's fee to the claimant's attorney to be fixed by the trial

      judge, based upon the effort expended, in the event the claimant's right to

      participate or to continue to participate in the fund is established upon the

      final determination of an appeal, shall be taxed against the employer or

      the commission if the commission or the administrator rather than the

      employer contested the right of the claimant to participate in the fund. The

      attorney's fee shall not exceed forty-two hundred dollars.

      {¶16} Civ.R. 54(B) requires a court to make an express determination there is no

just reason for delay in order to make appealable an order adjudicating fewer than all

the claims or the rights of fewer than all the parties. Civ.R. 54(B) must be followed when

a case involves multiple claims or multiple parties. State ex rel. A & D Ltd. Partnership

v. Keefe, 77 Ohio St.3d 50, 56, 671 N.E. 2d 13(1996).

      {¶17} The Supreme Court of Ohio has held that “[w]hen attorney fees are

requested in the original pleadings, an order that does not dispose of the attorney-fee

claim and does not include, pursuant to Civ.R. 54(B), an express determination that

there is no just reason for delay, is not a final, appealable order.” (Emphasis added.)
Muskingum County, Case No. 2012-CA-11                                                  7

Internatl. Bhd. of Electrical Workers, Loc. Union No. 8 v. Vaughn Industries, L.L.C., 116

Ohio St.3d 335, 879 N.E. 2d 187, 2007-Ohio-6439, paragraph 2 of the syllabus.

[“Vaughn.”]

      {¶18} In the instant case, the court specifically raised the issue of attorney fees

in the judgment entry and deferred the determination of fees. The judgment does not

include Civ. R. 54(B) language. We therefore find that based on the reasoning of the

Ohio Supreme Court in Vaughn, supra, the judgment appealed from is not a final,

appealable order. Accord, Bank of New York Mellon Trust Co. v. Zeigler, 5th Dist. No.

11-CA-25, 2011-Ohio-4748, ¶32.

                                        CONCLUSION

      {¶19} The January 27, 2012 Judgment Entry did not include Civ.R. 54(B)

language; therefore, there is no final appealable order as the issue of attorney fees

remains unresolved. Accordingly, this Court does not have jurisdiction to entertain

Kilbarger's appeal.
Muskingum County, Case No. 2012-CA-11                                            8


      {¶20} This appeal is dismissed for lack of jurisdiction.



By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur


                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. JULIE A. EDWARDS




WSG:clw 0813
[Cite as McMasters v. Kilbarger Constr., Inc., 2012-Ohio-4353.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


SUE MCMASTERS (GUARDIAN)                               :
                                                       :
                            Plaintiff-Appellee         :
                                                       :
                                                       :
-vs-                                                   :          JUDGMENT ENTRY
                                                       :
KILBARGER CONSTRUCTION,
INC., ET AL                                            :
                                                       :
                                                       :
                        Defendant-Appellant            :          CASE NO. 2012-CA-11




       For the reasons stated in our accompanying Memorandum-Opinion, this appeal is

dismissed for lack of jurisdiction. Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. WILLIAM B. HOFFMAN


                                                           _________________________________
                                                           HON. JULIE A. EDWARDS
