MICO INSURANCE COMPANY v. MARC V. ORLANDO, ET AL.
Case No. 15 CA 15
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 15, 2016
2016-Ohio-193
Hоn. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 15-VC-08; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellant Mico Insurance Company: MERLE D. EVANS, III, KRISTEN S. MOORE, Day Ketterer Ltd., 200 Market Avenue North, Suite 300 Millennium Centre, Canton, Ohio 44702
For Defendant-Appellee Marc V. Orlando: C. KEITH PLUMMER, Tribbie, Scott, Plummer & Padden, 139 West 8th Street, P.O. Box 640, Cambridge, Ohio 43725
For Defendant-Appellee Alan C. Williams: ANDREW W. ABEL, Spivey Law Firm, 13400 Pаrker Commons Boulevard, Fort Myers, Florida 33912
Hoffman, J.
{¶1} Plaintiff-appellant MICO Insurance Company (MICO) appeals the April 28, 2015 Entry entered by the Guernsey County Court of Common Pleas, which granted the motions to dismiss of defendants-appellees Marc V. Orlando, et al.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 23, 2010, Orlando applied for an automobile insurance policy with MICO through the Barengo Insurance Agency in Marietta, Ohio. Orlando listed 12631 Walhonding Road, Pleasant City, Guernsey County, Ohio, as his residential address on the application. In addition, Orlando indicated he had an Ohio driver‘s liсense, provided his Ohio driver‘s license number, identified a 2004 Ford F-140 pick-up truck as the vehicle to be insured, and represented said vehicle would be principally garaged in Ohio. The application required the applicant to provide the locаtion at which the vehicle would be principally garaged if such location was different from the applicant‘s mailing address. Orlando did not provide an alternative location on his application. Based upon the representations in the aрplication, MICO issued Policy No. 3068-80-362000-00E (the Policy) to Orlando at his Guernsey County address.
{¶3} Orlando subsequently provided MICO with a change of mailing address from 12631 Walhonding Road, Pleasant City, Guernsey County, Ohio, to P.O. Box 168, Buffalo, Guernsey County, Ohio. All correspondences from MICO to Orlando were mаiled to either the Walhonding Road address or to the P.O. Box.
{¶4} Orlando was involved in an automobile accident with Appellee Alan Williams in Fort Meyers, Florida, on March 16, 2013. At the time of the accident, Orlando was driving his wife‘s 2007 Toyota Prius, which was insured through GEICO General
{¶5} On April 21, 2014, following the filing of the Florida action, MICO received notice of the accident. MICO conduсted an investigation and concluded it did not have a legal or contractual obligation under the Policy to provide cоverage to Orlando for the March 16, 2013 Florida accident.
{¶6} MICO filed a Complaint for Declaratory Judgment in the Guernsey County Court of Cоmmon Pleas on January 7, 2015, seeking a declaration of its rights and responsibilities under the Policy as it relates to the March 16, 2013 Florida аccident.
{¶7} On February 5, 2015, Orlando filed a Motion to Dismiss or, in the Alternative, Motion to Stay or, in the Alternative, to Change Venue (Orlando‘s Motiоn). Therein, Orlando argued the matter was not properly venued in Ohio pursuant to
{¶8} On February 27, 2015, MICO filed a brief in opposition to both Orlando‘s Motion and Williams’ Motion, contending venue was propеr in Ohio pursuant to
{¶9} Via Entry issued April 28, 2015, the trial court found the Motions to Dismiss should be GRANTED due to lack of jurisdiction.
{¶10} It is from this entry MICO appeals, raising the following assignments of error:
{¶11} I. THE TRIAL COURT ERRED IN DISMISSING MICO INSURANCE COMPANY‘S COMPLAINT FOR DECLARATORY JUDGMENT ON GROUNDS THAT WERE NOT ARGUED BY ANY PARTY.
{¶12} II. THE TRIAL COURT ERRED IN DISMISSING MICO INSURANCE COMPANY‘S COMPLAINT FOR DECLARATORY JUDGMENT BECAUSE BOTH JURISDICTION AND VENUE WERE APPROPRIATE IN THE GUERNSEY COUNTY COURT OF COMMON PLEAS.
{¶13} III. THE TRIAL COURT ERRED IN DISMISSING THE ACTION INSTEAD OF TRANSFERRING IT TO WASHINGTON OR FRANKLIN COUNTY.
{¶14} IV. THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH THE MANDATORY REQUIREMENTS OF
I
{¶15} In its first assignment of error, MICO contends the trial court erred in dismissing its complaint for declaratory judgment on grounds not argued by the parties. We agree.
{¶16} Appellate review of a judgment granting a motion to dismiss a complaint is de novo. Hunt v. Marksmen Prods. (1995), 101 Ohio App.3d 760, 762, 656 N.E.2d 726.
{¶17}
An application to the court for an оrder shall be by motion which, unless made during a hearing or a trial, shall be made in writing. A motion, whether written or oral, shall state with particularity the grounds therefor, and shall set forth the relief оr order sought * * * (Emphasis added).
{¶18} Orlando‘s Motion and Williams’ Motion both sought dismissal of MICO‘s complaint based upon improper venue. In supрort of their motions, Orlando and Williams relied solely upon
{¶19} In addition, we find the trial court has subject matter jurisdiction over MICO‘s declaratory judgment action to determine coverage under the Policy. Subject-matter jurisdiction of a court connotes the power to hear and decide а case upon its merits. Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 61 O.O.2d 335, 336, 290 N.E.2d 841, 842.
{¶20} Furthermore, we agree with MICO neither Orlando nor Williams raised the issue of personal jurisdiction and, as such, it cannot be raised for the first time on appeal. Venue and jurisdiction are distinct legal concepts. Venue, of course, is to be distinguished from jurisdiction. Jurisdiction connotes the рower to hear and decide a case on its merits, while venue connotes locality, the place where the suit should bе heard. Reynolds v. Whitney, 10th Dist. Franklin No. 03AP-1048, 2004-Ohio-1628, ¶ 5 (Citation omitted). By entering an appearance, a party waives his right to contest personal jurisdiction. While Williams did file notice of a limited appearance, Orlando did not.
{¶21} MICO‘s first assignment of error is sustained.
II, III, IV
{¶22} In light of our disposition of MICO‘s first assignment of error, we find MICO‘s second, third, and fourth assignments of error to be premature.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur