Opinion
29034
07-15-2021
ERIC WIGGINS Plaintiffs-Appellants v. SAFECO INSURANCE COMPANY OF INDIANA, ETAL. Defendants-Appellees
[Civil Appeal from Common Pleas Court] Trial Court Case No. 2019 CV 01904
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM
{¶1} This matter is before the court for resolution of our show cause order. We conclude that the appeal must be dismissed.
{¶ 2} Appellants, Eric Wiggins, Individually, and Eric L. Wiggins, Administrator of the Estate of Leola L. Wiggins (together, Wiggins), seek review of a partial summary judgment decision issued by the trial court on February 3, 2021. The decision appears to resolve Count 1 of the Complaint for declaratory judgment. It also held that Wiggins (plaintiff below) was not entitled to summary judgment on Count 5 for breach of contract, and that his motion with respect to Count 7 for a constructive trust was "premature" and overruled "at this point." The court said that it would resolve several other pending summary judgment motions at a later date.
{¶ 3} The February 3 Decision leaves claims, counterclaims, and cross-claims pending in the underlying case and does not include a certification that there is no just reason for delay pursuant to Civ.R. 54(B). Thus, it appeared to this court that the February 3 Decision was not a final appealable order that could be reviewed at this time. See Stuck v. Miami Valley Hosp., 2d Dist. Montgomery No. 28233, 2020-Ohio-305, U 10 ("an order dismissing or resolving some of the claims in a civil action is not final if the trial court does not certify that there is no just reason for delay"); see also Onady v. Wright State Physicians, Inc., 2d Dist. Montgomery No. 27954, 2018-Ohio-3096 (finding that this court generally cannot review the denial of a motion for summary judgment before the case is complete, even where the denial does include a Civ.R. 54(B) certification). We ordered Wiggins to show cause why this appeal should not be dismissed for lack of jurisdiction, and offered appellees the opportunity to reply.
{¶ 4} Wiggins filed a response, arguing that the February 3 Decision in effect resolved the dispute and is a final order. Replies were filed by Federal National Mortgage Association (Fannie Mae) and Seterus, Inc.; Safeco Insurance Company of Indiana and Liberty Mutual Group, Inc.; and Praetorian Insurance Company. Appellees all assert that the appeal must be dismissed for lack of a final order. We agree with appellees.
{¶ 5} It is axiomatic that an appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Ace. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 6} The "general rule in Ohio [is] that there should be one trial and one appeal" in each case. Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50, 613 N.E.2d 1079 (8th Dist.1992). Thus, where there is clearly more to be done in a case, an order resolving some portion of the case is generally not appealable. See State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 20 ("A judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order") (internal citations and quotations omitted).
{¶ 7} Interlocutory appeals, or appeals of orders entered during a case that do not entirely resolve it, are accordingly disfavored and are permitted only where an order satisfies one of the definitions of a final order described in R.C. 2505.02, and if applicable, Civ.R. 54(B). See State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, If 18 ("Interlocutory appeals are disfavored in Ohio law and are allowed only in circumstances described in R.C. 2505.02"); Chef Itallano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989) ("a final order must also comply with Civ.R. 54(B), if applicable").
{¶ 8} R.C. 2505.02 defines final orders. Wiggins asserts that two subdivisions of this statute apply here:
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; [or]
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment * * *R.C. 2505.02(B). Before addressing these subdivisions, we review the posture of the case below.
{¶ 9} Wiggins filed his "Complaint for Declaratory Judgment, Breach of Contract, Monetary Damages, and Other Relief" in the Montgomery County Common Pleas Court on April 29, 2019. He named the appellees listed above, as well as the City of Dayton. The dispute concerns two insurance policies covering real estate and personal property that was destroyed by a fire in 2017. Wiggins had previously filed his complaint in the Probate Court of Montgomery County. That court dismissed for lack of jurisdiction, and this court affirmed. See Wiggins v. Safeco Ins. Co. of Indiana, 2d Dist. Montgomery No. 28163, 2019-Ohio-312.
{¶ 10} In essence, the dispute below asks which parties must pay what amount, and to whom, after the 2017 fire. The Complaint asserted seven causes of action:
1. For Declaratory Judgment Precluding Applicability Of The "Other Insurance" Clauses Contained in the Policies [against all defendants]
2. For Declaratory Judgment Regarding Pro Rata Payment for Coverage-A Dwelling, And For Set-Off [against all defendants]
3. For Declaratory Judgment Regarding Pro Rata Payment For Coverage-C Personal Property (Unscheduled) And For Set-Off [against all defendants]
4. For Declaratory Judgment Regarding Pro Rata Payment For Coverage-D Additional Living Expense/Loss of Use [against all defendants]
5. Breach of Contract Against Safeco and Liberty Mutual
6. To Stabilize the Land [against all defendants]
April 29, 2019 Complaint.7. To Declare a Constructive Trust Over Insurance Proceeds Being Held For the Benefit of the Estate [against all defendants]
Breach of contract is labeled as "Plaintiffs' Sixth Cause of Action," although it is the fifth cause listed in the complaint.
{¶ 11} Safeco and Liberty Mutual filed counterclaims and crossclaims on May 30, 2019. Praetorian filed counterclaims and crossclaims on June 13, 2019. Seterus and Fannie Mae filed a counterclaim and crossclaims on June 27, 2019.
{¶ 12} In the February 3 Decision on appeal, the trial court dealt only with Counts 1, 5, and 7 of Wiggins' Complaint. The court appeared to resolve Count 1, his claim "For Declaratory Judgment Precluding Applicability Of The 'Other Insurance' Clauses Contained in the Policies," by concluding to the contrary "that the 'other insurance' clauses are applicable in this case." February 3 Decision, p.2. Although not explicit in the Decision, this determination also resolved a portion of Safeco/Liberty Mutual and Praetorian's respective first counterclaims, which each sought a declaration that the clauses were valid and applicable. The trial court also found "that recovery under both policies in full amounts is contrary to public policy, as Ohio courts have not permitted multiple recoveries once the insured has been made whole." Id.
{¶ 13} The February 3 Decision also denied Wiggins' motion for summary judgment with respect to Count 5 (breach of contract) and Count 7 (for a constructive trust). The latter was described as "premature" and was overruled "at this point." The court also said that it would resolve several other pending summary judgment motions at a later date. The trial court did not deal with Count 2, Count 3, Count 4, or Count 6 of Wiggins' Complaint. It did not explicitly resolve any of appellees' cross or counterclaims, although, as noted, the court's declaration about the "other insurance" clauses implicitly resolved part of a counterclaim asserted by Safeco/Liberty Mutual and Praetorian.
{¶ 14} The February 3 Decision did not contain a certification that there was no just reason for delay pursuant to Civ.R. 54(B). The docket reflects that no other matters were resolved in the time between the February 3 Decision and the February 21 Notice of Appeal. See Rojas v. Concrete Designs, Inc., 2017-Ohio-379, 83 N.E.3d 339, U 12 (8th Dist.) ("jurisdiction is determined at the time the notice of appeal is filed").
R.C. 2505.02(B)(1): Determines the Action and Prevents a Judgment
{¶ 15} For purposes of finality, the February 3 Decision can be conceptually divided into two parts: the matter resolved, and the matters not resolved. Count 1 of Wiggins' Complaint was resolved when the trial court declared that the "other insurance" clauses in the respective insurance policies applied. The court overruled Wiggins' motion for summary judgment and sustained Safeco/Liberty Mutual and Praetorian's motions for summary judgment. This decision and declaration arguably "determinefd] the action and prevented] a judgment" in Wiggins' favor with respect to Count 1. R.C. 2505.02(B)(1).
{¶ 16} The remainder of the Decision overruled Wiggins' motions for summary judgment with respect to Counts 5 and 7, leaving those matter unresolved. "A decision overruling a motion for summary judgment is generally held not to be a final appealable order" under R.C. 2505.02(B)(1) because it does not resolve any claims. Onady, 2d Dist. Montgomery No. 27954, 2018-Ohio-3096, ¶ 9.
{¶ 17} For Wiggins to be able to appeal the part of the February 3 Decision that arguably resolved Count 1, the trial court must also have certified that there was no just reason for delay. Civ.R. 54(B) provides:
Civ.R. 54(B). Specific language is required: "Rule 54(B) makes mandatory the use of the language, 'there is no just reason for delay.' Unless those words appear where multiple claims and/or multiple parties exist, the order is subject to modification and it cannot be either final or appealable." Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). Here, because the trial court did not include the relevant language, the resolution of Count 1 of Wiggins' Complaint is not a final appealable order subject to this court's review at this time.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 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.
{¶ 18} Wiggins argues that an exception applies to the requirement of Civ.R. 54(B) language in his response to our show cause order. He asserts that "although there were multiple claims and parties, from a plain, common sense reading thereof, the trial court's Decision clearly resolved all claims of all parties, and rendered all remaining claims moot. Now all that remains is for the trial court to perform the 'ministerial task' of calculating the final amounts due each party." Wiggins Response, p.5. Neither of these concepts applies here.
Mootness
{¶ 19} In Wise v. Gursky, 66 Ohio St.2d 241, 243, 421 N.E.2d 150 (1981), the Supreme Court of Ohio held that "a judgment in an action which determines a claim in that action and has the effect of rendering moot all other claims in the action as to all other parties to the action is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment." The principle in Wise
Blankenship v. Blankenship, 2d Dist. Miami No. 21 CA 00005, ¶11 (June 11, 2021). In other words, where the principle applies, the remaining claims are effectively resolved in the negative: once the underlying liability claim is denied, a subrogation claim fails; once damages for breach of contract are awarded, an alternative claim for unjust enrichment fails.is generally applied where the remaining claims are derivative or mutually exclusive as a matter of law. For example, claims for subrogation, indemnity, or contribution may become moot where the underlying claim for liability has been denied. See, e.g., Strayer v. Cox, 2015-Ohio-2781, 38 N.E.3d 1162, ¶ 24-26 (2d Dist.) (insurer's cross-claims based on subrogation were "contingent upon [plaintiffs'] success, and the summary judgment rendered against [plaintiffs] mooted" insurer's claims). Or, an award of damages on a breach of contract claim may render an unjust enrichment claim moot. See, e.g. Watershed Mgt, LLC. v. Neff, 4th Dist. Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 20 ("Though the trial court's entry was silent as to Watershed'sclaim for unjust enrichment, this is not problematic, because breach of contract and unjust enrichment are mutually exclusive").
{¶ 20} Wiggins suggests here that the remaining claims in his Complaint are similarly moot. He submits that he "cannot prevail" on any of the other claims because the trial court found that the "other insurance" clauses in the relevant insurance policies apply to the property at issue.
{¶ 21} We are not convinced that all of the remaining claims are moot as a matter of law. First, the fact the Wiggins may not succeed under the facts of his case presents a different situation from one in which claims are unavailable as a matter of law regardless of the facts. Second, as we held in Blankenship, the fact that Wiggins may "face evidentiary or legal challenges in prevailing on these claims does not necessarily mean that they have been resolved as a matter of law, or that a judgment on them in [Wiggins'] favor has been prevented by the trial court's Decision." Id. at ¶12. Third, the trial court here clearly intended to resolve the other matters, noting that it would resolve the other pending motions at a later date. February 3 Decision, p.2.
{¶ 22} Moreover, even if the remaining claims in Wiggins' Complaint were effectively mooted because they were all were premised on the inapplicability of the "other insurance" clauses - a finding we do not make at this time - the crossclaims and counterclaims are still unresolved.
{¶ 23} Praetorian's counterclaims against Wiggins, for example, seek a declaration "as to the proper payees of any coverage the Court finds under the Praetorian Policy," as well as damages for breach of contract. Praetorian's crossclaims against Safeco and Liberty Mutual seek "a declaration from this Court as to the policy limits and amounts of coverage provided for the fire loss by the Praetorian Policy," "a declaration from this Court as to the proper payees of any coverage the Court finds under the Praetorian Policy," and "a declaration from this Court that Safeco and Liberty Mutual are not entitled to contribution or indemnification from Praetorian for the amounts Safeco paid to Plaintiff, or in the alternative, a declaration of the respective duties of the parties in regard to their respective contribution and indemnification obligations." Seterus and Fannie Mae seek, among other things, a judgment in their favor against Wiggins for breach of contract "in the amount of $195, 395.73 representing the total amount due under the Note and Mortgage, plus costs and attorneys' fees and any additional accrued interest or advances made as provided for in the Note and Mortgage." Safeco and Liberty Mutual also sought a "declaration as to the policy limits and amounts of coverage provided for the fire loss by the Safeco policy under Coverage A - Dwelling, Coverage C - Personal Property, and Coverage D - Additional Living Expenses."
{¶ 24} These claims (and the others) are neither moot nor resolved by the trial court's preliminary declaration that the "other insurance" clauses apply. There is plainly more to be done to resolve the entire dispute before the trial court.
Ministerial Acts
{¶ 25} Wiggins answers this concern by asserting that the only things left to be done are "ministerial acts" that do not prevent the February 3 Decision from being considered final. He likens this dispute to a foreclosure matter, which generally produces two final orders in the form of a foreclosure decree and a confirmation entry. See generally Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, 133 N.E.3d 470, H 18. Wiggins cites CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, for the proposition that a foreclosure decree may be considered final even where the amounts of certain related liabilities have not yet been resolved. The Supreme Court of Ohio in Sponaugle explained:
Sponaugle at U 28.Roznowski involved a foreclosure decree that included in its damage award the future expenses incurred by the bank for inspections, appraisals, property protection, and maintenance. Even though the decree did not specify the amount of these liabilities, we concluded that it was a final, appealable order: "Each party's rights and responsibilities were fully set forth - all that remained was for the trial court to perform the ministerial task of calculating the final amounts that would arise during confirmation proceedings," id. at ¶ 20.
{¶ 26} This case is distinguishable. While Wiggins, understanding the nuance and likely path of his claims, may be able to project ahead to the expected resolution of the matter, none of the rights and responsibilities of the parties has yet been established. The issues to be resolved concerning breach of the Note or mortgage, or breach of the insurance policies, or rights of the respective parties to insurance funds, have not yet been resolved. As Safeco notes, the following matters remain for resolution:
Safeco Response, p.5. These are not ministerial tasks in the context of this dispute. They are the heart of the dispute.the amounts of each of three respective coverages (dwelling, additional living expense/loss of use, and personal property) provided by both the Safeco andPraetorian policies; to whom those three coverages were owed; the amounts owed to each of the parties claiming entitlement to the three separate coverages; whether Safeco is entitled to recoup amounts it has already paid under two of the coverages (dwelling and loss of use), which were more than Safeco's proportionate share; and, if Safeco is entitled to recoup those funds, whether is it entitled to do so from Praetorian and/or Appellant.
{¶ 27} We conclude that neither the mootness principle set out in Wise, 66 Ohio St.2d 241, 243, 421 N.E.2d 150, nor the ministerial act concept laid out in Roznowski applies to this case under these circumstances. Accordingly, we conclude that the general rule requiring Civ.R. 54(B) certification or resolution of the entire action before appeal holds. The February 3 Decision is not a final order under the general rule in R.C. 2505.02(B)(1).
R.C. 2505.02(B)(2): Affecting a Substantial Right in a Special Proceeding
{¶ 28} Wiggins also relies on R.C. 2505.02(B)(2), which says that "[a]n order that affects a substantial right made in a special proceeding" is a final order. A special proceeding "means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2).
{¶ 29} The Supreme Court of Ohio has held that "[a] declaratory judgment action is a special proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein which affects a substantial right is a final appealable order." Gen. Ace. Ins. Co., 44 Ohio St.3d 17, 22, 540 N.E.2d 266. This action is one for "Declaratory Judgment, Breach of Contract, Monetary Damages, and Other Relief," according to the Complaint.
{¶ 30} A substantial right "means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). Wiggins identifies his "right ***to contract, and to receive the benefits of [his] bargain" as the substantial right at issue here. He reasons that the statute governing the "other insurance" rule "may directly infringe on this right." (Emphasis sic.) See R.C. 3929.26. Wiggins' argument appears to be that the statute denies his right to contract freely because he may not get paid under the Safeco policy he purchased: "This is the case because he contracted with Safeco to be paid under [the Safeco policy]. Fannie Mae was not named as a loss payee. If there is 'other insurance' and payments are 'prorated' whereby Fannie Mae gets funds properly payable to [Wiggins], he will not be fully compensated as contracted."
"When there are two or more insurance policies upon the same property, each policy shall contribute to the payment of the whole or of the partial loss in proportion to the amount of insurance mentioned in each policy. In no case shall the insurer be required to pay more than the amount mentioned in its policy." R.C. 3929.26.
{¶ 31} Assuming arguendo that the underlying action is a special proceeding and that the right to contract is a substantial right in this context, Wiggins' argument - phrased in terms of "if" and "may" - demonstrates why the February 3 Decision is not final under R.C. 2505.02(B)(2). The final requirement under this subdivision is that the identified substantial right be affected by the order on appeal. See Painter & Pollis, Ohio Appellate Practice, Section 2:6 (October 2020) ("Even if an order implicates a substantial right, the appellate court must still examine whether it affects that right"). "An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively." Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). Wiggins must therefore "demonstrate that in the absence of immediate review of the order [he] will be denied effective relief in the future." Bell at 63, modified on other grounds by Moskovitz v. Mt. Sinai Med. Ctr, 69 Ohio St.3d 638, 635 N.E.2d 331 (1994), paragraph four of the syllabus.
{¶ 32} Wiggins does not meet this requirement. His argument that he may be deprived of the benefit of his contract/policy with Safeco if the trial court later orders the proceeds of the policies to other parties instead shows that this Decision does not affect his rights, but that later ones might. Although Wiggins argues that this appeal represents this court's opportunity to "right the ship" before more damage can be done below, he fails to show that an appeal after all the claims are resolved would be insufficient to rectify the damage, if indeed this court were to later find the trial court erroneously distributed the policy proceeds.
{¶ 33} In this respect, the Supreme Court of Ohio has held that "[a]n order that declares that an insured is entitled to coverage but does not address damages is not a final order as defined in R.C. 2505.02(B)(2), because the order does not affect a substantial right even though made in a special proceeding." Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, syllabus. This case is similar. The trial court here declared that the "other insurance" clauses in the two policies applied, but did not go further and determine what that meant under the specific facts of the case. The court did not award any damages or order that the policy proceeds be awarded in any percentage to anyone. See State ex rel. Jones v. Bd. of Ed. of Dayton Pub. Schools, 2020-Ohio-4931, 160 N.E.3d 777, ¶ 22 (2d Dist.) (holding that "[a] preliminary determination of obligations absent an order enforcing them is not a final appealable order"). Under these circumstances, the February 3 Decision does not affect Wiggins' substantial right to freely contract and is not a final order under R.C. 2505.02(B)(2).
{¶ 34} Finally, we observe that if the February 3 Decision could be considered final under R.C. 2505.02(B)(2), it appears that Civ.R. 54(B) language would still be required for an immediate appeal. In Gen. Ace. Ins. Co., the Supreme Court of Ohio found that a declaratory judgment decision was final under R.C. 2505.02(B)(2) and allowed an appeal only after finding that the decision included Civ.R. 54(B) language. Id. at 22-23; but see Garden v. Langermeier, 2017-Ohio-972, 86 N.E.3d 645, ¶13, fn.1 (8th Dist.) (questioning whether Civ.R. 54(B) should apply to final orders entered in a special proceeding under R.C. 2505.02(B)(2)). As discussed above, Civ.R. 54(B) language was not included here. We need not determine whether it was required, however, because we find that the order does not satisfy R.C. 2505.02(B)(2).
Conclusion
{¶ 35} For all the foregoing reasons, we conclude that the February 3 Decision resolving only Count 1 of Wiggins' complaint (and part of one of the counterclaims by Safeco/Liberty Mutual and Praetorian) by declaring that the "other insurance" clauses are applicable to the dispute is not a final appealable order. We find our show cause order NOT SATISFIED. This matter, Montgomery Appellate Case No. 29034, is DISMISSED for lack of jurisdiction.
{¶ 36} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.
SO ORDERED.
MARY E. DONOVAN, Judge JEFFREY M. WELBAUM, Judge