ERIC WIGGINS v. SAFECO INSURANCE COMPANY OF INDIANA, ET AL.
Appellate Court Case No. 29034
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 15, 2021
2021-Ohio-3526
Trial Court Case No. 2019 CV 01904 [Civil Appeal from Common Pleas Court]
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.”
{¶ 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
{¶ 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.
{¶ 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
{¶ 8}
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 * * *.
{¶ 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:
- For Declaratory Judgment Precluding Applicability Of The “Other Insurance” Clauses Contained in the Policies [against all defendants]
- For Declaratory Judgment Regarding Pro Rata Payment for Coverage-A Dwelling, And For Set-Off [against all defendants]
- For Declaratory Judgment Regarding Pro Rata Payment For Coverage-C Personal Property (Unscheduled) And For Set-Off [against all defendants]
- For Declaratory Judgment Regarding Pro Rata Payment For Coverage-D Additional Living Expense/Loss of Use [against all defendants]
Breach of Contract Against Safeco and Liberty Mutual1 - To Stabilize the Land [against all defendants]
- 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
{¶ 14} The February 3 Decision did not contain a certification that there was no just reason for delay pursuant to
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 “determine[d] the action and prevent[ed] a judgment” in Wiggins’ favor with respect to Count 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
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.
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
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., L.L.C. v. Neff, 4th Dist. Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 20 (“Though the trial court‘s entry was silent as to Watershed‘s
claim for unjust enrichment, this is not problematic, because breach of contract and unjust enrichment are mutually exclusive“).
Blankenship v. Blankenship, 2d Dist. Miami No. 21 CA 00005, 2021-Ohio-2250, ¶ 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.
{¶ 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.
{¶ 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
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.
Sponaugle at ¶ 28.
{¶ 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:
the amounts of each of three respective coverages (dwelling, additional living expense/loss of use, and personal property) provided by both the Safeco and
Praetorian 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.
Safeco Response, p.5. These are not ministerial tasks in the context of this dispute. They are the heart of the dispute.
{¶ 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
R.C. 2505.02(B)(2): Affecting a Substantial Right in a Special Proceeding
{¶ 28} Wiggins also relies on
{¶ 29} The Supreme Court of Ohio has held that “[a] declaratory judgment action is a special proceeding pursuant to
{¶ 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
{¶ 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
{¶ 34} Finally, we observe that if the February 3 Decision could be considered final under
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
SO ORDERED.
MARY E. DONOVAN, Judge
JEFFREY M. WELBAUM, Judge
CHRISTOPHER B. EPLEY, Judge
Copies to:
Worrell Reid
6718 Loop Road, #2
Dayton, Ohio 45459
Attorney for Appellants
David Williamson
312 Elm Street, Suite 1850
Cincinnati, Ohio 43202
Attorney for Appellees, Liberty Mutual Group, Inc. and Safeco Insurance Company of Indiana
Thomas Rosenberg
41 S. High Street
Huntington Center, 21st Floor
Columbus, Ohio 43215
Attorney for Appellee, Praetorian Insurance Company
Laura Salzman
625 Eden Park Drive, Suite 450
Cincinnati, Ohio 45202
Attorney for Appellee, Praetorian Insurance Company
150 E. Gay Street, 24th Floor
Columbus, Ohio 43215
Attorney for Appellees, FNMA and Seterus, Inc.
Ari Charlip
2600 W. Big Beaver Road, Suite 300
Troy, Michigan 48084
Attorney for Appellees, FNMA and Seterus, Inc.
Martin Gehres
101 W. Third Street
P.O. Box 22 Dayton, Ohio 45402
Attorney for Appellee, City of Dayton
Hon. Gregory F. Singer
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422
CA3/KY