[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.
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[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.