Wiggins v. Safeco Ins. Co. of Ind.

2021-Ohio-3526

ERIC WIGGINS Plaintiffs-Appellants v. SAFECO INSURANCE COMPANY OF INDIANA, ETAL. Defendants-Appellees

No. 29034

Court of Appeals of Ohio, Second District, Montgomery

July 15, 2021

[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^[1]

6. To Stabilize the Land [against all defendants]

7. To Declare a Constructive Trust Over Insurance Proceeds Being Held For the Benefit of the Estate [against all defendants]

April 29, 2019 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...