LUCIO еt al., Appellees, v. SAFE AUTO INSURANCE COMPANY et al., Appellants.
No. 10 MO 2
Court of Appeals of Ohio, Seventh District, Monroe County
Decided June 1, 2010
188 Ohio App.3d 190 | 2010-Ohio-2528
Richard Yoss, James Ferber, and Tracy Stott Pyles, for appellants.
Per Curiam.
{¶ 1} Defendants-appellants, Safe Auto Insurance Company and Safe Auto Insurance Group, Inc., have filed a timely appeаl from the decision of the Monroe County Common Pleas Court granting summary judgment to plaintiffs-appellees, a class of sales representatives, on their claims of breach of contract and unjust enrichment. The issue before us is whether that judgment is final and appealable when it contains a method for calculating damages but a damage hearing is pending.
{¶ 2} For the following reasons, we hold that the trial court‘s order is not final and appealable due to the fact that damages have not yet been set, the steps remaining in the action are more than ministerial, and there is no indication that a further appeal will not arisе regarding the facts relevant to the damage calculation.
STATEMENT OF THE CASE
{¶ 3} Appellees filed a complaint against Safe Auto setting forth claims of breach of contract and unjust enrichment. The contract claim was based upon Safe Auto‘s unilateral modification of a January 2004 Sales Representative Agreement (“SRA“) by reducing commissions for both new and renewed policies. The unjust-enrichment claim was based on Safe Auto‘s retention of commissions on renewal policies written by former sales representatives.
{¶ 4} In October 2008, the trial court granted a request for class certification, defining the class as all sales reprеsentatives in the Monroe or Franklin County call centers after January 1, 1996 who had their commissions reduced. Safe Auto appealed that decision pursuant to
{¶ 5} Both sides sought summary judgment on the issue of liability. On March 12, 2010, the trial court denied Safe Auto‘s motion аnd granted appellees’ motion in a 16-page judgment entry. The court found that Safe Auto breached the January 2004 SRA when it unilaterally restructured the renewal commissions in a
{¶ 6} The court found that appellees were entitled to the renewal commission of two percent on policies sold between the January 19, 2004 memo and the January 1, 2005 SRA. The court also found that appellees were entitled to two percent for quoting new policies and two percent for completing new policies frоm January 2004 SRA until the January 2006 SRA.
{¶ 7} On the unjust-enrichment claim, the court found that Safe Auto was unjustly retaining renewal commissions on policies whose original sales representatives were no longer employed by Safe Auto. The court noted that former representatives were not entitled to continued commissions under the terms оf the contract. The court found, however, that the contract requires renewal commissions to be generated for the duration of the policies and that it is unjust for Safe Auto to retain the commissions instead of reassigning the policies to new agents.
{¶ 8} After entering summary judgment regarding this liability, the court then entered a discovery order applicable to the issue of damages. Thereafter, the hearing on damages was set for August 2, 2010.
{¶ 9} On April 9, 2010, Safe Auto filed a timely appeal from the trial court‘s March 12, 2010 entry of summary judgment. Although no damages order had been entered, Safe Auto suggested that the order was final under
{¶ 10} Appellees filed a motiоn to dismiss the appeal for lack of a final order. First, they argued that the order lacks
{¶ 11} Safе Auto responded with a memorandum in opposition. As to appellees’ first argument, Safe Auto disputed that
{¶ 12} Safe Auto alternatively argued that the order was final under
{¶ 13} Thereаfter, appellees filed a motion for sanctions pursuant to App.R. 23, alleging a frivolous appeal. This motion was mainly based upon Safe Auto‘s allegation that
CIV.R. 54(B)
{¶ 14} “An order of a court is a final appealable order only if the requirements оf both
{¶ 15} “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 fewеr 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 оf 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.” (Emphasis added.)
Civ.R. 54(B) .
{¶ 16} In a case holding that an order dеtermining liability and damages was not final because the issue of prejudgment interest was still pending, the Supreme Court also held that
{¶ 17} As Safe Auto argues, this is not a case where the court entered a judgment as to one or more but fewer than all of the claims or parties. The damages sought here were part of a claim for relief and were not a claim for relief themselves. See generally Schneider v. Schaefer Landscape Design, Inc., 8th Dist. No. 85443, 2005-Ohio-4288, 2005 WL 1994443, ¶ 3, 5; Saint-Gobain/Norton Indus. Ceramics Corp. v. Parkhurst (Dec. 30, 1994), 11th Dist. No. 94-G-1871 (damages are not separate and distinct claims for relief but are part of the remedy sought for the claim). See also State ex rel. Butler Cty. Children Serv. Bd. v. Sage (2002), 95 Ohio St.3d 23, 25, 764 N.E.2d 1027 (order granting motion to compel discovery of allegedly privileged material is not subject to
{¶ 18} The plain language of
{¶ 19} Furthermore, “no just reason for delay” language merely transforms a final order into a final, appealable order.
R.C. 2505.02(B)(1)
{¶ 20} One category of a final order thаt may be reviewed by the appellate court is:
{¶ 21} “An order that affects a substantial right in an action that in effect determines the action and prevents a judgment.”
{¶ 22} An order disposing only of the liability issue affects a substantial right. White, 79 Ohio St.3d at 545, 684 N.E.2d 72. The question is whether it in effect determines the action and prevents a judgment. Id. The general rule is that аn order determining liability but not damages is not a final, appealable order. Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, ¶ 31; White, 79 Ohio St.3d at 546, 684 N.E.2d 72.
{¶ 23} There is an exception to this general rule. White, 79 Ohio St.3d at 546, 684 N.E.2d 72. A judgment not completely determining damages is final and appealable “where the computation of damages is mechanical and unlikely to produce a second appeal because only a ministerial task similar to аssessing costs remains.” Id. Thus, if “only a ministerial task similar to executing a judgment or assessing costs remains” and there is a low possibility of disputes concerning the class members’ individual claims, the order can be appealed without waiting for performance of that ministerial task. Id.
{¶ 24} For instance, a judgment awarding a fixed amount of damages to a class can be appealed even if the court still needs to split the award among the class members. Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 479-480, 100 S.Ct. 745, 62 L.Ed.2d 676. It has also been stated that a grant of summary judgment that states that the plaintiff should receive the amount set forth in the complaint and other pleadings is appealable because it is a ministerial act to implement the judgment. U.S.A. v. Brook Contracting Corp. (C.A.3, 1985), 759 F.2d 320, 323. Moreover, a sentencing entry assessing costs against a criminal defendant is final and appealable even though the exact amount of costs has not been stated as this is a ministerial task of the clerk. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 19-21.
{¶ 25} On the other hand, a judgment determining liability and damages but not yet ruling on the issue of prejudgment interest does not fall under the ministerial act exception, as judicial fact-finding and the exercise of discretion are still required. Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 7. In so holding, the Supreme Court found prejudgment interest to be more akin to damages than costs. Id.
{¶ 26} Furthermore, a judgment in favor of a class of government employees did not fall undеr the ministerial-act exception even when the judgment ordered that the government agency do all of the following: credit current employees with their prior Ohio experience; award current employees back vacation time from six years prior to the commencement of the action and dеfined back vacation time; permit current employees to use back vacation time; pay damages equivalent to back vacation time to employees who left during the pendency of the action; prepare information necessary to calculate and verify the relief granted to individuаl class members including vacation policies, dates of employment, and vacation time allotted to each class member. White, 79 Ohio St.3d at 544, 547, 684 N.E.2d 72. The Ohio Supreme Court held that it was not evident that only a ministerial task similar to executing a judgment or assessing costs remained and found that subsequent appeals were not necessаrily unlikely. Id. at 546, 684 N.E.2d 72. Thus, the court ruled that the judgment, which did not specify damages, did not determine the action or prevent a judgment, and the
{¶ 27} The White and Miller cases are more akin to the case before us than the Boeing or Threatt cases. In the Threatt case, all that remained was for court costs to be calculated by the clerk. Unlike the Boeing case, a total damage award was not entered against the defendant here.
{¶ 28} Although the trial court‘s summary-judgment order outlines a type of damage formula, none of the numbers needed to complete the formula can be obtained from the record in the case. This factor distinguishes the case from Brook and from another case Safe Auto cites, Hattersley v. Bollt (C.A.3, 1975), 512 F.2d 209.
{¶ 29} Safe Auto also rеlies on a Seventh Circuit case that found that damages were merely ministerial when the trial court ordered the state to reimburse parents who had been charged for the state‘s housing of their disabled children but when the damage award had not yet been calculated. See Parks v. Pavkovic (C.A.7, 1985), 753 F.2d 1397 (stating that the parents merely had to submit receipts). We note that the Parks court did not appear entirely confident in their holding, as they stated: “The line between the ministerial and the substantial is a * * * very dim one, but we think this case falls on the ministerial side, if barely. Even if we are wrong in thinking that the order to pay is a final, appealable order, we can review it in conjunction with the state‘s appeal of the permanent injunction.” Id. In any event, this federal case is not binding in Ohio.
{¶ 30} The remaining duties of the court here are not similar to assessing predetermined costs or executing a judgment. See White, 79 Ohio St.3d at 546, 684 N.E.2d 72. See also Budinich v. Becton Dickinson Co. (1988), 486 U.S. 196, 198, 108 S.Ct. 1717, 100 L.Ed.2d 178 (stating that to be final the order must end the litigation on the merits and leave nothing to do but execute the judgment). They are similar to the duties remaining in the Supreme Court‘s White case.
{¶ 31} Notably, in White, a method for arriving at damages was provided that could be applied after certain information was collected that would provide concrete numbers. Still, the court found that the order was not subject to the ministerial-act exception. Here, evidence must similarly be presented regarding eаch class member‘s status and entitlement. The case is set for hearing in August. There is no indication of the number of policies and renewals affected. Evidence must be presented on the amount of the premiums for the policies and for the renewals.
{¶ 32} There may also be disputes over which policies are thosе of the former employees. The trial court noted that Safe Auto does not provide the name of the original sales agent on the face of the policy. The trial court may be required
{¶ 33} Finally, we cannot say that an appeal from the damage stage is necessarily unlikely. See White, 79 Ohio St.3d at 546, 684 N.E.2d 72. Judicial economy is better served by waiting until final resolution of the damages issue. See Miller, 113 Ohio St.3d 474, 866 N.E.2d 1059, at ¶ 8 (responding to appellant‘s judicial-economy argument by noting that judicial economy will be promoted only if appellant ended up winning on appeal and noting that if they lost on appeal, remand for completion of the case would still be required).
{¶ 34} Under the totality of circumstances existing in this case, we conclude that the trial court‘s order is not subject to the ministerial-act exсeption. Consequently, we apply the general rule that an order that does not completely issue a damage award is not final. Thus, the March 12, 2010 entry of summary judgment on the issue of liability is not final and appealable.
R.C. 2505.02(B)(5)
{¶ 35} Safe Auto also alleges that the trial court‘s order is final under
{¶ 36} Once this decision is made, further interlocutory decisions in the case dо not become final because the case is a class action. The plain language of
{¶ 37} The March 12, 2010 order granting summary judgment on the issue of liability is not a determination that the action can be maintained as a class action (which decision had already been made in October 2008). Thus, Safe Auto‘s argument regarding the application of
{¶ 38} This appeal is dismissed for lack of a final, appealable order. Appellees’ motion for sanctions pursuant to App.R. 23 is denied. Costs taxed against appellants.
Appeal dismissed.
VUKOVICH, P.J., and DONOFRIO and WAITE, JJ., concur.