[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.