Davis v. Border
| Decision Date | 16 February 2007 |
| Docket Number | No. 2004-T-0051.,No. 2004-T-0060.,2004-T-0051.,2004-T-0060. |
| Citation | 170 Ohio App.3d 758,869 N.E.2d 46,2007 Ohio 692 |
| Parties | DAVIS, Appellee; Allstate Insurance Company, Intervening Appellant, v. BORDER, Appellee. |
| Court | Ohio Court of Appeals |
Phillip M. Vigorito, Warren, for appellee Eric Davis.
Perrin I. Sah, Twinsburg, for intervening appellant.
Patrick K. Wilson, Warren, for appellee Matthew Border.
{¶ 1} Appellant, Allstate Insurance Company ("Allstate"), appeals the judgment of the Trumbull County Court of Common Pleas. For the reasons that follow, we affirm.
{¶ 2} On February 10, 2003, appellee Eric Davis filed the complaint in this matter, claiming that on February 9, 2002, he was injured when appellant's insured appellee Matthew Border struck him while holding a drinking glass. Davis alleged that Border's conduct was "intentional, willful, reckless and/or negligent."
{¶ 3} Appellant had issued a homeowner's insurance policy to Border, which was in effect on the date of the incident. The policy provides liability coverage for the negligent acts of its insured, but not for intentional acts.
{¶ 4} Border was served with the complaint on February 18, 2003, and Allstate retained counsel for him. The parties exchanged written discovery and completed depositions. The court scheduled the final pretrial on April 29, 2004 and jury trial on May 10, 2004. On April 26, 2004, appellant filed a motion to intervene with a complaint and cross-claim for declaratory judgment attached. Davis filed a brief in opposition. On May 4, 2004, the court denied the motion as untimely. On May 7, 2004, appellant appealed the denial under case No. 2004-T-0051 and moved the trial court to stay the proceedings. On May 10, 2004, the court denied appellant's motion to stay.
{¶ 5} Appellant never filed a motion to stay the trial in this court. As a result, the trial proceeded as scheduled. The case was tried to a jury beginning on May 12, 2004. After Davis presented his case-in-chief, the court granted Border's motion for directed verdict regarding the intentional-, willful-, and reckless-conduct allegations. The case proceeded on only Davis's allegation that Border's conduct was negligent. The jury returned a verdict in favor of Davis. Judgment was entered on the verdict on May 20, 2004. On June 1, 2004, appellant appealed the court's judgment on the verdict under case No. 2004-T-0060. On November 8, 2004, appellant amended its appeal to include the denial of its May 7, 2004 motion to stay. The appeals were subsequently consolidated. This matter was recently assigned to this writer.
{¶ 6} Appellant submits three assignments of error. For the sake of clarity, they will be considered out of order. For its second assignment of error, appellant asserts:
{¶ 7} "Allstate's appeal from the denial of its motion to intervene divested the trial court of jurisdiction to proceed to trial."
{¶ 8} Allstate argues that its May 7, 2004 notice of appeal divested the trial court of jurisdiction and thus all subsequent rulings and the court's judgment on the verdict are void.
{¶ 9} The resolution of this issue depends on whether the court's judgment denying appellant's motion to intervene was a final and appealable order as of May 7, 2004, the date appellant filed its notice of appeal.
{¶ 10} Appellate jurisdiction is limited to the review of final orders and judgments that are appealable. Klein v. Bendix-Westinghouse Automotive Air Brake Co. (1968), 13 Ohio St.2d 85, 86, 42 O.O.2d 283, 234 N.E.2d 587. The court of appeals does not have jurisdiction over appeals taken from orders that are not final and appealable. Barker v. Barker (1997), 118 Ohio App.3d 706, 713, 693 N.E.2d 1164.
{¶ 11} To be final and appealable, an order must comply with R.C. 2505.02 and Civ.R. 54(B), if applicable. R.C. 2505.02(B) provides: "An order is a final order * * * 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; (2) An order that affects a substantial right made in a special proceeding * * *."
{¶ 12} Civ.R. 54(B) provides:
{¶ 13} "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. * * *" {¶ 14} The trial court's entry denying appellant's motion to intervene provided:
{¶ 15} The court's entry did not include a finding that there is no just reason for delay.
{¶ 16} In Williams v. Winston (Oct. 11, 1995), 1st Dist. No. C-940746, 1995 WL 596073, the appellant appealed the denial of a motion to intervene. The court held:
{¶ 17} "An order is final and appealable only if it meets the requirements of R.C. 2505.02 and Civ.R. 54(B), if applicable. Civ.R. 54(B) requires that the court make an express determination that there is no just reason to delay an appeal before it can enter final judgment as to one or more but fewer than all the claims or parties to an action. * * *
{¶ 18} (Citations omitted.)
{¶ 19} The First Appellate District recently reaffirmed its decision in Williams in Queen City Lodge No. 69, Fraternal Order of Police v. State Emp. Relations Board, 1st Dist. No. C-060530, 2007-Ohio-170, 2007 WL 121740. In that case, the Fraternal Order of Police ("FOP") filed an unfair-labor-practice charge against the city with the State Employment Relations Board ("SERB"). SERB denied the charge. The FOP filed an administrative appeal in the trial court, but did not name the city as a party. The trial court denied the city's motion to intervene. The court held that the order denying the city's motion was a final order because it affected a substantial right and in effect determined the action and prevented a judgment for the city. However, the judgment left unadjudicated the pending claims of the parties. The court held that without the Civ.R. 54(B) finding, the order was not appealable. Id. at ¶ 11-12.
{¶ 20} The Ninth Appellate District also follows the foregoing rule. In Gehm v. Timberline Post & Frame, 9th Dist. No. 22479, 2005-Ohio-5222, 2005 WL 2401906, Gehm filed a complaint against Timberline seeking damages related to the construction of a building. Westfield, Timberline's insurer, filed a motion to intervene to participate in discovery and submit jury interrogatories. The court denied the motion and proceeded to trial without Westfield as a party. Westfield appealed the denial. The court held that the order denying the motion was neither final nor appealable. The court held that Westfield's motion and the court's denial preserved Westfield's ability to litigate its claims in a separate suit, since collateral estoppel applies only to a party who could have intervened in the proceeding. The court's judgment was thus not final pursuant to R.C. 2505.02, because it did not determine the action and prevent a judgment.
{¶ 21} In addition, the court in Gehm held that because the order left Gehm's claim pending, the order needed the Civ.R. 54(B) finding of "no just reason for delay" to be final and appealable. As a result, the court dismissed the appeal.1
{¶ 22} Moreover, in Wilson v. United Fellowship Club of Barberton, 9th Dist. No. 22792, 2006-Ohio-1047, 2006 WL 551356, the plaintiff sued the club for gender discrimination. The club's insurer moved to intervene for the sole purpose of submitting interrogatories to the jury. The court denied the insurer's motion, and the insurer appealed. The court held:
{¶ 23} "In addition to satisfying the requirements of R.C. 2505.02 to be ripe for review, an order must also comply with Civ.R. 54(B). When determining if a judgment is final, an appellate court must engage in the following two-step analysis: (1) `it must determine if the order is final with [in] the requirements of R.C. 2505.02' and (2) `if the court finds that the order complies with R.C. 2505.02 and is in fact final, then the court must take a second step to decide if Civ.R. 54(B) language is required.' Gen. Accident Ins. Co. v. Ins. Co. of N. America (1989), 44 Ohio St.3d 17, 21 . * * *
{¶ 24} "* * *
{¶ 26} These cases are consistent with a recent decision of this court, which involved structurally similar circumstances. In Meeker R & D, Inc. v. Evenflo Co., Inc., 11th Dist. No. 2006-P-0019, 2006-Ohio-3885 2006 WL 2105496, we held that when multiple claims or parties are involved in an action and a judgment therein concerns fewer than all the claims or parties, the Civ.R. 54(B) finding is required to make any final order final and...
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...their motion was timely. {¶14} The timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Davis v. Border, 170 Ohio App.3d 758, 2007-Ohio-692, ¶42, citing State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503 (1998). We acknowledge ......
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... ... To invoke the jurisdiction of an appellate court, the subject order or judgment must be final. Davis v. Border, 170 Ohio App.3d 758, 761, 2007-Ohio-692; see, also, Klein v. Bendix—Westinghouse Automotive Air Brake Co. (1968), 13 Ohio St.2d 85, 86 ... ...
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