Chibinda v. Depositors Ins.Chibinda v. Depositors Ins.
Subashi & Wildermuth, Nicholas E. Subashi, Andrew E. Rudloff, Halli Brownfield Watson, The Greene Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440, for defendant-appellee
O P I N I O N
BRESSLER, J.
{¶1} Plaintiff-appellant, Peter Chibinda, appeals from a decisiоn of the Butler County Area III Court granting summary judgment in favor of defendant-appellee, Depositors Insurance Company, on Chibinda‘s claim for coverage under his homeowner‘s insurance policy with Depositors. We reverse the trial court‘s decision because the trial court erred by failing to rule on Depositors’
{¶2} Chibinda and his wife Dora Chibinda had a homeowner‘s insurance policy with Depositors, an affiliate of Nationwide Insurance Company. In 2007, the Chibindas sought coverage under their homeowner‘s policy for water damage to their residence. A claims representative for Depositors, Jeffrey Boehm, inspected the damage and denied coverage on the basis of a policy exclusion that prohibited coverage for loss caused by constant or repeated seepage or leakage of water over a period of weeks, months or years from a plumbing system within the insured‘s residence. Boehm informed the Chibindas of his decision to deny coverage in a letter with the heading, “Nationwide® On Your Side.”
{¶3} In February 2008, the Chibindas filed a pro se complaint against “Nationwide Insurance” in the Butler County Area III Court, alleging that the water damage to their residence “was caused by a sudden pipe bust [sic] just below the kitchen counter bottom board” and that Nationwide Insurance breached the terms of the parties’ homeowner‘s poliсy and acted in bad faith by wrongfully denying them coverage. Depositors, representing itself as Nationwide Insurance, filed an answer to the Chibindas’ complaint, denying “any and all averments and allegations” contained therein and alleging in one of its defenses “that ‘Nationwide Insurance’ is not a proper party to this action.”
{¶4} “Nationwide Insurance” moved for summary judgment on the grounds that (1) the Chibindas’ homeowner‘s policy had been issued by Depositors, not “Nationwide Insurance,” and therefore the Chibindas had filed their complaint against the wrong party, and (2) the Chibindas’ homeowner‘s policy expressly excluded coverage for the water damage. After the Chibindas filеd a memorandum in opposition, the magistrate issued an “Entry Granting Summary Judgement [sic] In Favor Of The Defendant,” which stated in
{¶5} “The Plaintiffs failed to respond to the motion [for summary judgment] with proper evidence or affidavits. Technically, the interview by the Defendant‘s agent (Boehm) could be used, but even in reviewing that, there is no evidence to cоntradict the Defendant‘s evidence. The Plaintiff [sic] moved to compel the depositions [sic] of Boehm but did not request additional time to respond to the defendant‘s motion. With just a little proper response, the Plaintiff [sic] could have overcome the motion.
{¶6} “More importantly, the issue of the proper Defendant was not addressed and the Defendant must prevail simply on that issue.”
{¶7} On September 29, 2008, the trial court, noting that no objections to the magistrate‘s decision had been filed, ordered the magistrate‘s decision to stand as the decision of the trial court.
{¶8} On October 1, 2008, Chibinda, but not his wife, filed another complaint in the trial court that was similar to the one he and his wife had brought against “Nationwide Insurance,” except that it named “Depositors Insurance” as the defendant in the action. When Depositors failed to file an answer or otherwise defend in the action, Chibinda moved for default judgment, but the trial court denied it. In early 2009, Chibinda requested a hearing on his motion for default judgment. On February 27, 2009, the trial court held a hearing on Chibinda‘s motion, and afterwards granted default judgment against Depositors and in favor of Chibinda in the amount of $15,000 plus costs and interest.
{¶9} Upon learning that default judgment had been entered against it, Depositors, on March 27, 2009, filed a
{¶10} No further filings were made in the case until nearly one year later, when the parties were sent notice that a status or “report hearing” on the case had been scheduled for July 14, 2010. On that date, the magistrate held a status hearing on the matter and afterwards issued an entry that stated, “[Depositors] to brief ‘res judicata’ issue by [August 16, 2010,]” “[Chibinda] may respond[,]” and “Court to review [the issues in disputе on August 25, 2010].”
{¶11} On August 16, 2010, Depositors filed an answer and counterclaim for declaratory judgment on Chibinda‘s complaint, and separately filed a motion for summary judgment on Chibinda‘s complaint. Chibinda did not respond to Depositors’ motion for summary judgment. On August 25, 2010, the magistrate issued a decision recommending that Depositors’ motion for summary judgment be granted, thаt Depositors’ counterclaim be dismissed as moot, and that Chibinda‘s complaint be dismissed with prejudice. On August 26, 2010, the trial court adopted the magistrate‘s recommendations in their entirety and made them the order of the court.
{¶12} Chibinda now appeals, assigning the following as error:
{¶13} Assignment of Error No. 1:
{¶14} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT-APPELLEE [sic] MOTION FOR SUMMARY JUDGMENT AS A MATTER OF LAW BASED UPON THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL.”
{¶15} Assignment of Error No. 2:
{¶16} “THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEE SUMMARY JUDGMENT BASED UPON THE REPORT AND RECOMMENDATIONS OF THE MAGISTRATE AND NOT CONCLUSION OF FACTS AND LAW.”
{¶17} Assignment of Error No. 3:
{¶18} “THE TRIAL COURT ABUSED ITS DISCRETION BY DEPRIVING APPELLANT OF HIS CONSTITUTIONAL AND STATE RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.”
{¶19} Assignment of Error No. 4:
{¶20} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT-APPELLEE [sic] MOTION FOR SUMMARY JUDGMENT WITHOUT VACATING DEFAULT JUDGMENT TO THE BENEFIT OF APPELLANT.”
{¶21} Assignment of Error No. 5:
{¶22} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING APPELLEE TO RELITIGATE A CASE THAT HAS BEEN DISPOSED OF DESPITE RES JUDICATA DOCTRINE.”
{¶23} We shall address Chibinda‘s assignments of error in an order and manner that facilitates our analysis of the issues raised therein.
{¶24} In his fourth and fifth assignments of error, Chibinda argues the trial court erred by granting summary judgment to Depositors without ruling on Depositors’ motion to set aside the default judgment that had been entered against it. We agree.
{¶25} The law generally does not favor default judgments, since cases should be decided on their merits whenever possible. Wilson v. Lee, 172 Ohio App. 3d 791, 2007-Ohio-4542, ¶15.
{¶26} Nevertheless,
{¶27} A trial court hаs discretion in deciding whether to grant or deny a
{¶28} The trial court failed to rule on Depositors’
{¶29} Depositors argues the trial court “effectively” set aside the default judgment when the magistrate permitted it to move for summary judgment on the issue of res judicata. In support of this argument, Depositors cites, State Farm Mut. Ins. Co. v. Young, Summit App. No. 22944, 2006-Ohio-3812, ¶11, in which the Ninth District Court of Appeals found that the trial court‘s order granting the appellee leave to intervene in the action “effectively granted” the appellee‘s motion to vacate the default judgment that had been entered in the appellant‘s favor. However, this case is distinguishable from Young because in that case, the appellee and the appellant agreed that the trial court‘s order allowing the appellee to intervene effectively granted appellee‘s motion to vacate the default judgment, whereas in this case, Chibinda is challenging the trial court‘s failure to rule on Depositors’ motion to set aside the default judgment rendered against Depositors and in his favor.
{¶30} Therefore, Chibinda‘s fourth and fifth assignments of error are sustained to the extent indicated.
{¶31} In his second and third assignments of error, Chibinda argues the trial court erred by (1) adopting the magistrate‘s “secret” report and recommendations, and (2) by granting summary judgment to Depositors without complying with the requirements of
{¶32}
{¶33}
{¶34} “Form; filing, and service of magistrate‘s decision. A magistrate‘s decision shall be in writing, identified as a magistrate‘s decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate‘s decision shall indicate conspicuously that a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
{¶35} Attached to the magistrate‘s August 25, 2010 report and recommendations was
NOTICE OF RECEIPT OF ENTRY
_______ A copy of the Report and Recommendations in the above-captioned matter was mailed to the Plaintiff this ______ day of _______, 2010.
_______ A copy of the Report and Recommendations in the above-captioned matter was mailed to the Defendant this ______ day of ______, 2010.
{¶36} “Notice is hereby given that unless objections, in writing, stating the reason therefore are filed with the Court, and a copy sent to opposing party (or to the attorney for said party, if applicable) within fourteen (14) days of the filing of the report, an order will be made as recommended abovе. Any objection to a finding of fact shall be supported by a transcript of all of the evidence submitted to the Magistrate relevant to that fact or, if a transcript is unavailable, an affidavit of that evidence specifying the errors made by the Magistrate.”
{¶37} The spaces in the above notice were left blank, and it doеs not appear from the record that the magistrate‘s report and recommendation of August 25, 2010 was ever served on the parties, let alone, within three days after the magistrate‘s report and recommendations were filed with the court. Moreover, the magistrate‘s report and recommendations do not contain the “indicate conspicuously” language contained in
{¶38} The record and circumstances of this case refute Depositors’ assertion that Chibinda had adequate time and a reasonable opportunity to defend against Depositors’ motion for summary judgment. The magistrate‘s July 14, 2010 entry states, “[Depositors] to brief ‘res judicata’ issue by [August 16, 2010,]” “[Chibinda] may respond[,]” and “Court to rеview [the issues in dispute on August 25, 2010].” Depositors has represented to this court that the magistrate directed it to move for summary judgment by August 16, 2010. Chibinda denies this in his brief and contends that he expected Depositors to make arguments in favor of its motion to set aside the default judgment that had been entered against it. Significantly, there is nothing in the magistrate‘s July 14, 2010 еntry that mentions “summary judgment,” and the entry reasonably could be interpreted as merely a request for Depositors to brief the res judicata issue for purposes of determining whether to grant or deny Depositors’ motion to set aside the default judgment entered against it.
{¶39} However, even if we accept as true Depositors’ rеpresentation that the magistrate directed it to move for summary judgment by August 16, 2010, Depositors’ motion for summary judgment had to be served on Chibinda, the adverse, nonmoving party, at least 14 days before the date fixed for hearing on the motion for summary judgment. However, the hearing on Depositors’ summary judgment motion was scheduled for August 25, 2010, and therefore Chibinda was not given at least 14 days to serve and file opposing affidavits in response to Depositors’ motion. Consequently, the trial court erred by granting summary judgment in favor of Depositors and against Chibinda under these circumstances, since Chibinda was deprived of an adequate opportunity to file affidavits or otherwise defend
{¶40} In light оf the foregoing, Chibinda‘s second and third assignments of error are sustained to the extent indicated.
{¶41} In his first assignment of error, Chibinda argues the trial court erred in granting summary judgment to Depositors on the basis of res judicata or collateral estoppel. However, the trial court prematurely ruled on this issue without ruling on Depositors’
{¶42} The trial court‘s judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion.
POWELL, P.J., and RINGLAND, J., concur.