Transamerica Ins. Co. v. Nolan

• Decision Date: 14 June 1995
• Docket Number: No. 94-120,94-120
• Citation: 649 N.E.2d 1229,72 Ohio St.3d 320
• Parties: TRANSAMERICA INSURANCE COMPANY v. NOLAN; Professionals Insurance Company et al., Appellees; Wallace et al., Appellants.
• Court: Ohio Supreme Court

Page 320

72 Ohio St.3d 320

649 N.E.2d 1229

TRANSAMERICA INSURANCE COMPANY v. NOLAN; Professionals Insurance Company et al., Appellees;

Wallace et al., Appellants.

No. 94-120.

Supreme Court of Ohio.

Submitted March 21, 1995.

Decided June 14, 1995.

SYLLABUS BY THE COURT

Pursuant to App.R. 3(A), the only jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal. When presented with other defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion.

In June 1987, an automobile driven by Lori Watkins collided with a truck operated by Terry Nolan and a third vehicle driven by Adam Sohn. Watkins, Nolan and three passengers in the Watkins vehicle were killed as a result. For purposes of this suit, the parties do not dispute that Watkins was at fault. Anthony Wallace was one of the three passengers killed. Appellants, Linda and Dennis Wallace, are the parents of Anthony Wallace.

Watkins's insurance carrier, Transamerica Insurance Company, instituted an interpleader action seeking the resolution of several claims pending against Watkins's estate. Ultimately, the trial court approved a settlement agreement which apportioned the limits of the Transamerica policy among the survivors and injured parties. The agreement provided that $52,000 of the settlement proceeds was to be paid to the estate of Anthony Wallace.

Thereafter, Linda Wallace submitted a claim under the underinsured motorist coverage of her policy with appellee Owners Insurance Company. She agreed to deduct the $26,000 she had received from the Transamerica settlement. Appellant Dennis Wallace also made a claim under the underinsured motorist coverage of his policy provided by appellee Professionals Insurance Company. Both insurance companies filed cross-claims seeking a declaration of the rights and obligations of the parties.

The trial court entered judgment for the Wallaces. The court of appeals reversed, finding that Watkins had not been underinsured relative to the Wallaces, relying on Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658. Its entry ordered "that a mandate be sent to the Warren County Court of Common Pleas, for execution upon this judgment." (Sept. 4, 1990), Warren App. Nos. CA89-12-077 and CA89-12-079, unreported, 1990 WL 127204. However, for unknown reasons the trial court did not act upon the mandate until a nunc pro tunc entry was filed on August 5, 1992. The entry reflected an effective date of September 4, 1990. In the interim, the Wallaces had filed a motion for judgment in their favor, based on Derr v. Westfield Cos. (1992), 63 Ohio St.3d 537, 589 N.E.2d 1278. The trial court denied the motion and the court of appeals affirmed.

The cause is now before the court pursuant to the allowance of a motion to certify the record.

Joseph L. Dilts and James G. Petrie, Cincinnati, for appellee The Professionals Ins. Co.

Freund, Freeze & Arnold and Gordon D. Arnold, Dayton, for appellee Owners Ins. Co.

E.S. Gallon & Associates and David M. Deutsch, Dayton, for appellants.

MOYER, Chief Justice.

As a preliminary matter, we must first determine whether the court of appeals was correct in holding that it lacked jurisdiction over the appeal of Linda Wallace. The notice of appeal filed in the court of appeals designated the appellants as "Dennis Wallace et al." The court of appeals held that the notice failed to comply with App.R. 3(D) and that the defect was jurisdictional. App.R. 3(D) provides that the "notice of appeal shall specify the party or parties taking the appeal." ¹ The court of appeals relied on its decision in Seipelt v. Motorists Mut. Ins. Co. (1992), 81 Ohio App.3d 530, 611 N.E.2d 917, which relied on the reasoning in Torres v. Oakland Scavenger Co. (1987), 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285. In Torres the Supreme Court held that the designation "et al." fails to provide the notice required under the similar federal rule and acted as a jurisdictional bar.

Although the relevant portion of the version of Fed.R.App.P. 3 considered in Torres was virtually the same as App.R. 3, we do not interpret the Ohio rule so strictly. Ohio App.R. 3(A) provides, "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." ² App.R. 3(A) is controlling. Pursuant to App.R. 3(A), the only jurisdictional requirement for the filing of a valid appeal is the timely filing of a notice of appeal. When presented with other defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion.

The court of appeals abused its discretion by refusing to consider the appeal of Linda Wallace. We have held that the failure to file separate notices of appeal for cases that had been consolidated in the trial court, as required by local rule, is not a jurisdictional defect. Natl. Mut. Ins. Co. v. Papenhagen (1987), 30 Ohio St.3d 14, 30 OBR 21, 505 N.E.2d 980. We reasoned that the court of appeals had abused its discretion by dismissing the appeal when the mistake was made in good faith, no prejudice accrued as a result, dismissal constituted a disproportionate sanction, the client was punished for the fault of his counsel and the dismissal frustrated the overriding objective of deciding cases on their merits. Use of the term "et al." might not always be appropriate, but here appellees were not prejudiced by the use of the designation. All parties were aware of the interests of Linda Wallace and proceeded under the assumption that she was a party. Therefore, the court of appeals abused its discretion by failing to consider her appeal.

Having determined the proper parties to the appeal, we turn our attention to the merits of appellants' action. The issue presented is whether the failure of the trial court to enter final judgment on its journal pursuant to a mandate issued from the court of appeals rendered the action pending, so that it could be affected by subsequent decisions of this court.

We begin with the general proposition that "[a] subsequent change in the controlling case law in an unrelated proceeding does not constitute grounds for obtaining relief from final judgment under Civ.R. 60(B)." Doe v. Trumbull Cty. Children Serv. Bd. (1986), 28 Ohio St.3d 128, 28 OBR 225, 502 N.E.2d 605, paragraph one of the syllabus. Appellants argue that this general rule is inapplicable because final judgment was not entered until after their motion for judgment was filed. Appellants contend that the trial court's failure to enter judgment kept the case alive so that subsequent decisions by this court that conflicted with the law of the case were intervening cases that should have been followed by the...