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Toca v. Advanced Therapeutic Services, Inc.

Court of Appeals of Ohio, Second District

September 27, 2013

BERTILIA MARIELLA TOCA, M.D., et al. Plaintiffs-Appellees
ADVANCED THERAPEUTIC SERVICES, INC., et al. Defendants-Appellants

Civil Appeal from Common Pleas Court

MATTHEW D. DiCICCO, Atty. Reg. #0072889, Freund, Freeze & Arnold, Attorney for Plaintiffs-Appellees

ROBERT D. ROSS, Atty. Reg. #0062853, 300 Attorney for Defendants-Appellants


(¶ 1} Defendants-appellants, Jeffrey Kolaczkowski, Advanced Therapeutic Services, Inc., Woodman Building Group, L.L.C., Wellness Card, L.L.C., Mid West Behavioral Healthcare, Inc., Cincinnati Commandos, L.L.C., Silverbacks Football, L.L.C., ATS Medical Care, Inc., Prime Fights, Inc., Walker MMA, L.L.C., CDS Logistics, L.L.C., Pinwheel Farm, L.L.C., and Stuebenville Stampede, L.L.C. appeal from a judgment rendered against them on a breach of contract claim. The defendants contend that the trial court erred by overruling their motion to dismiss the Third Amended Complaint filed by plaintiffs-appellees Bertilia Mariella Toca, M.D., and Amparo M. Wee, M.D. The defendants argue that the Third Amended Complaint should have been dismissed, because judgment had already been rendered, terminating the trial court's jurisdiction.

(¶ 2} Our review of the record indicates that the order to which the defendants refer was not a final judgment, but merely a direction from the trial court to the parties as to how they should proceed to resolve their disputes concerning the nature of a settlement agreement that had previously been read into the record (but which is not part of the record on appeal). While an Amended Judgment Entry was filed on May 31, 2012, after the plaintiffs' second and third amended complaints had been filed, that entry does not adjudicate the claims pending against all the defendants. Thus, no final appealable order has been entered. R.C. 2505.02. Because claims remain unadjudicated, the order of the trial court overruling the defendants' motion to dismiss remains interlocutory, and is not subject to appeal. Citibank, N.A. v. Katz, 8th Dist. Cuyahoga No. 98753, 2013-Ohio-1041, 21. Accordingly, this appeal is Dismissed for lack of a final appealable order.

I. The Nature of the Plaintiffs' Cause of Action

(¶ 3} Kolaczkowski is the majority owner and operating manager of Advanced Therapeutic Services, Inc. (ATS), a business engaged in providing psychiatric and mental health services. He is also the owner of the other above-named entities that are engaged in various different businesses. Toca and Wee are physicians specializing in the field of psychiatry.

(¶ 4} In 2001, Toca and Kolaczkowski entered into an Independent Contracting Agreement. Under the terms of the Agreement, Toca was required to provide psychiatric services for ATS in exchange for reimbursement of 50% of all monies collected. Around the same time, Kolaczkowski and Toca formed the Woodman Building Group, L.L.C. (WBG), a holding company owning real property located at 1320 Woodman Drive in Dayton. This building houses ATS and other companies owned by Kolaczkowski. Toca has a 20% ownership interest in the real estate, which is encumbered by a mortgage loan issued by PNC Bank.

(¶ 5} Thereafter, Wee entered into a verbal agreement with Kolaczkowski whereby he was to receive 60% of all monies collected as a result of counseling/medical services provided by Wee to ATS patients.

(¶ 6} A dispute arose concerning the compensation owed to Toca and Wee.

II. The Course of Proceedings

(¶ 7} Toca and Wee brought this action for breach of contract in October 2007 against ATS. The suit sought an accounting and compensation for services provided. In March 2009, Toca and Wee filed their First Amended Complaint, which added WBG as a defendant with regard to the breach of contract claims and added claims for judicial dissolution of ATS and WBG.

(¶ 8} Following discovery and mediation, the parties purportedly reached an agreement, which was read into the record on June 9, 2010.[1] The trial court entered an Order of Dismissal, dated June 29, 2010, which stated, "[t]his case having been reported to be settled by counsel, this matter is conditionally dismissed, without prejudice until such time as a final dismissal entry with prejudice is filed." Thereafter, Wee and Toca filed a motion seeking to enforce the settlement agreement and the appointment of a receiver. The plaintiffs claimed that Kolaczkowski refused to sign a proposed agreed order prepared by counsel for the plaintiffs. A copy of the proposed agreed judgment entry was attached as an exhibit to the motion. That proposed entry provided, in part, that Toca and Wee are entitled to have a forensic accounting performed to determine whether ATS had paid all amounts due them. It further provided that ATS and WBG ...

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