Avis Rent-A-Car System, L.L.C. v. Atkinson

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 5th District Court of Appeals » 2012 » Avis Rent-A-Car System, L.L.C. v. Atkinson

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-4921

Case Date: 10/22/2012

Plaintiff: Kern

Defendant: Dutiel

Preview:[Cite as Kern v. Dutiel, 2013-Ohio-2439.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHARLES E. KERN, ET AL.                     JUDGES:
                                            Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellees                        Hon. William B. Hoffman, J.
                                            Hon. Sheila G. Farmer, J.
-vs-
                                            Case No. 12-CA-15, 12-CA-16
DONALD DUTIEL, ET AL.
Defendants-Appellants                       O P I N I O N
CHARACTER OF PROCEEDING:                    Appeal from the Perry County Court of
Common Pleas, Case No. 10-CV-00344
JUDGMENT:                                   12-CA-15 - Dismissed
                                            12-CA-16 - Affirmed
DATE OF JUDGMENT ENTRY:                     June 4, 2013
APPEARANCES:
For Plaintiffs-Appellees                    For Defendants-Appellants
MARK R. RIEGEL                              ELIZABETH N. GABA
NICHOLAS R. GRILLI                          1231 East Broad Street
Dagger, Johnston Miller,                    Columbus, Ohio 43205
Ogilvie & Hampson, LLP
144 East Main St., P.O. Box 667
Lancaster, Ohio 43130

Perry County, Case No. 12-CA-15, 12-CA-16                                                      2
Hoffman, J.
{¶1}   In Perry App. No.  12CA15, defendants-appellants Donald Dutiel, et al.
appeal the July 16, 2012 Entry entered by the Perry County Court of Common Pleas,
which granted partial summary judgment in favor of plaintiffs-appellees Charles E. Kern,
et al.   In Perry App. No. 12CA16, Appellants appeal the July 16, 2012 Entry entered by
the same court, which granted summary judgment in favor of Appellees on Appellants’
counterclaim.
STATEMENT OF THE FACTS AND CASE
{¶2}   Appellees are the Estates of Steven H. Kern, Kathryn E. Wright, and Eric
A. Wright, a minor child. Steven H. Kern, Kathryn E. Wright, and Eric A. Wright will be
referred to individually by name and collectively as “Decedents”.
{¶3}   On  May  1,  2010,  Steven  Kern  and  Kathryn  Wright  entered  into  an
agreement  regarding  property  owned  by  Appellants  at  327  Elizabeth  Street,  New
Lexington, Ohio (“the Property”).   Appellants own numerous residential properties in and
around New Lexington.   The agreement executed by Steven Kern and Kathryn Wright
was  a  fill-in-the-blank  form  printed  on  Dutiel  Rental  Properties/Mr.  Donald  Dutiel
letterhead.
{¶4}   As completed by Stephen Kern and Kathryn Wright, the agreement reads:
We  are  purchasing  the  property  at                                                         327  Elizabeth  St.  New
Lexington,  Ohio,  43764.  Selling price  of  property is  $35,000.00, down
payment is $                                                                                   0, balance                 $35,000.00 at 15% interest.   Payments are $
442.50 per month for 320 months. I have inspected the house or property.
I will sign the land contract the first of next month on 6-1-10.

Perry County, Case No. 12-CA-15, 12-CA-16                                                       3
Property  is  sold  as  is,  no  refund  for  any  reason.  We  would
appreciate this land contract not being recorded, so when we want to
move we’ll have no problems. x KEW Initial
I agree to pay $15.00 a month for trash. KEW Initial
(Underlined portions represent “filled in” information).
{¶5}   The  agreement  is  signed  by  Kathryn  Wright  and  Stephen  Kern  as
purchasers.   Appellants did not sign the agreement.
{¶6}   Decedents moved into the Property on May 22,  2010. During the early
morning hours of May 23, 2010, while Decedents were asleep on the second floor of the
residence, a fire started on the first floor.    Decedents died as the result of smoke
inhalation.
{¶7}   On  August  23,  2010,  Appellees  filed  a  complaint  for  wrongful  death,
naming Appellant Donald Dutiel, Appellant Luella Dutiel, John Does 1-10, Jane Does 1-
10, and XYZ Corporations, Partnerships, and/or Limited Liability Companies  1-10 as
defendants.   Appellees subsequently amended the complaint to add Appellant Dutiel
Family  Revocable  Trust  as  a  defendant.     Appellees  asserted  a  landlord/tenant
relationship  existed  between  Decedents  and  Appellants;  therefore  Appellants  owed
Decedents certain statutory duties under R.C.  5321.04.    Appellants filed an answer
denying Appellees’ position, and counterclaimed asserting damages as the result of
Decedents’ negligence, willful and wanton conduct, and breach of contract.   Appellants
alleged Decedents had entered into a land contract with them.
{¶8}   On July 18, 2011, Appellees filed a motion for partial summary judgment,
asking  the  trial  court  to  find  Decedents  and  Appellants  were  in  a  landlord/tenant

Perry County, Case No. 12-CA-15, 12-CA-16                                                       4
relationship, not a land contract, at the time of the fire.   Appellants filed a memorandum
contra, arguing they had a land contract vendor-vendee relationship with Decedents.
{¶9}   Via Entry filed July 16, 2012, the trial court granted Appellees’ motion for
partial summary judgment regarding the non-existence of a land contract.    The trial
court found the evidence established Decedents were not land contract purchasers at
the time of the fire.   The trial court expounded a land contract had never been signed or
recorded,  and  the  document  signed by Decedents  did not meet the  statutory land
contract requirements set forth in R.C. 5313.02. The trial court ordered the relationship
between Decedents and Appellants will be determined by the trier of fact.
{¶10}  On September 7, 2011, Appellees filed a motion for summary judgment on
Appellants’  counterclaim,  asserting  Appellants  were  not  the  real  party  in  interest.
Appellees asserted, at the time of the fire, the property was insured by Municipal Mutual
Insurance Company in the amount of $25,000.   Appellants filed a fire damage claim.
Municipal Mutual paid $24,750, to Appellants, i.e., the $25,000 policy amount less the
$250.00  deductible.    Appellants signed a Sworn Statement in Proof of Loss which
provided Municipal Mutual with all subrogation rights.   Appellants filed a memorandum
contra, arguing joinder of Municipal Mutual was not mandatory.    Appellants further
maintained their loss, which was caused by Decedents’ negligence or recklessness,
was greater than the policy limits.    Appellants also claimed the policy was solely in
Appellant Donald Dutiel’s name; therefore, Appellants Louella Dutiel and the Dutiel
Family Revocable Trust could maintain the counterclaim.

Perry County, Case No. 12-CA-15, 12-CA-16                                                              5
{¶11}  Via  Entry  also  filed  July                                                             16,   2012,  the  trial  court  granted  summary
judgment  in  favor  of  Appellees  on  Appellants’  counterclaim.    The  trial  court  found
Municipal Mutual, not Appellants, was the sole real party in interest.
{¶12}  It  is  from  these  entries  Appellants  appeal,  raising  the  following
assignments of error:
{¶13}  “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS
BY RULING THAT THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT
AND THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION THAT
NO LAND CONTRACT EXISTED BETWEEN THE DECEDENTS AND APPELLANTS,
AND  FURTHER  ERRED  BY  AWARDING  PARTIAL  SUMMARY  JUDGMENT  TO
PLAINTIFFS ON THAT ISSUE.
{¶14}  “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS
BY RULING THAT THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT
AND THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION THAT
APPELLANTS  WERE  NOT  THE  REAL  PARTY  IN  INTEREST  AS  TO  THEIR
COUNTERCLAIMS AND FURTHER ERRED BY AWARDING SUMMARY JUDGMENT
TO PLAINTIFFS ON THAT ISSUE.”
STANDARD OF REVIEW
{¶15}  Summary  judgment  proceedings  present  the  appellate  court  with  the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Perry County, Case No. 12-CA-15, 12-CA-16                                                     6
{¶16}  Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶17}  It  is  well  established  the  party  seeking  summary  judgment  bears  the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The standard for
granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293,
662 N.E.2d 264 (1996): “ * * * a party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of  the basis for the motion, and identifying those portions of  the record that
demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving  party  has  no  evidence  to  support  the  nonmoving  party's  claims.  If  the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

Perry County, Case No. 12-CA-15, 12-CA-16                                                      7
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).
I
{¶18}  In their first assignment of error, Appellants contend the trial court erred in
granting partial summary judgment in favor of Appellees.
{¶19}  As a preliminary matter, we must first determine whether the order under
review is a final appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). In the event the parties to
the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N .E.2d 64 (1989), syllabus.
{¶20}  “In order for a judgment to be final and appealable, the requirements of
R.C.  2505.02 and Civ.R.  54(B), if applicable, must be satisfied.” Bristol Twp. Bd. of
Trustees v. Haney, 11th Dist. No.2010-T-0084, 2010-Ohio-3965, ¶ 3. “An order that
affects a substantial right in an action that in effect determines the action and prevents a
judgment” is considered a final order. R .C. 2505.02(B)(1).
{¶21}  Appellees in their motion for partial summary judgment asked the trial
court to find Decedents and Appellants were in a landlord/tenant relationship.   In its July
16,  2012 Entry, the trial court found only that a land contract did not exist between
Decedents and Appellants.   The trial court specifically stated “[t]he parties’ relationship
shall be decided by the trier of fact.”   The Entry also included the language, “there is no

Perry County, Case No. 12-CA-15, 12-CA-16                                                       8
just reason for delay”.   In the present matter, the trial court only determined the issue of
the existence of a land contract.    Accordingly , we find the July 16, 2012 Entry granting
Appellees’ motion for partial summary judgment  is  not  a final appealable  order as
contemplated by R.C.  2505.02, as it only determines one issue regarding Appellees’
claim and does not prevent a judgment in favor of Appellants.
{¶22}  Since the aforementioned judgment is not final, the fact the trial court used
Civ.R. 54(B) language in its judgment entry is irrelevant. Noble v. Colwell, 44 Ohio St.3d
92,  96,  540 N.E.2d  1381  (1989)  (the  “mere incantation of the required language” of
Civ.R. 54(B) cannot turn an otherwise non-final order into a final appealable order). An
order does not become final by merely including boilerplate Civ.R.  54(B) language.
Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 364, 617 N.E.2d 1136 (1993).
{¶23}  Based upon the foregoing, Appellants’ appeal in Perry App. No. 12CA15 is
sua sponte dismissed for lack of a final appealable order.
II
{¶24}  In their second assignment of error, Appellants maintain the trial court
erred in granting summary judgment in favor of Appellees on Appellants’ counterclaim.
{¶25}  In  their  counterclaim,  Appellants  sought  damages  as  the  result  of
Decedents’ negligence, willful and wanton conduct, and breach of contract.   Appellees
filed a motion for summary judgment, arguing Appellants were not the real party in
interest. The trial court granted summary judgment in favor of Appellees.   The trial court
determined Municipal Mutual was not just the real party in interest, but was the “sole
real party in interest” as it had paid the fire damages claim submitted by Appellant

Perry County, Case No. 12-CA-15, 12-CA-16                                                    9
Donald Dutiel.   The trial court relied upon the Ohio Supreme Court’s holding in Shealy v.
Campbell, 20 Ohio St.3d 23 (1985):
Not only is the insurance company herein a real party in interest,
the insurance company is the sole real party in interest pursuant to this
court's holding in Cleveland Paint & Color Co. v. Bauer Mfg. Co. (1951),
155 Ohio St. 17, 97 N.E.2d 545 [44 O.O. 59]. In that case at 25, 97 N.E.2d
545, this court adopted the proposition that “* * * if the subrogee has paid
an entire loss suffered by the insured, it is the only real party in interest
and must sue in his own name. * * * ”
{¶26}  In the instant action, Appellant Donald Dutiel executed a Sworn Statement
in Proof of Loss. The document includes a subrogation clause, which provides:
The Insured hereby convenants [sic] that no release has been or
will be given to or settlement of compromise made with any third party
who may be liable in damages to the Insured in consideration of payment
made under this policy hereby subrogates the said Company to all rights
and  clauses  [sic]  of  action  the  said  Insured  has  against  any  person,
persons or corporation whomsoever for damage arising out of or incident
to said loss or damage to said property and authorizes said Company to
sue in the name of the Insured but at the cost of the Company any such
third party, pledging full cooperation in such action. (emphasis added)
{¶27}  Based upon the above language, we agree with the trial court and find
Municipal Mutual is the sole real party in interest.

Perry County, Case No. 12-CA-15, 12-CA-16                                                      10
{¶28}  Municipal  Mutual  paid  Appellant  Dutiel  the  sum  of                                $24,750,  which
represents  the  total  amount  of  insurance  on  the  property  ($25,000)  less  the  $250
deductible.                                                                                    “[A] fully subrogated insurer is the real party in interest and must bring suit
in its own name, for when the loss is fully paid by an insurer and the insurer becomes
subrogated to the insured's claim against the wrongdoer, the insured no longer has a
right of action against the wrongdoer. See, generally, 6 Wright & Miller, Federal Practice
& Procedure, Subrogation (1971) 656, Section 1546; 16 Couch on Insurance 2d (1983)
104, Section 61.26.” Shealy at 25.
{¶29}  Appellants’ second assignment of error is overruled.
{¶30}  The judgment of the trial court in Perry App. No. 12CA15 is dismissed for
lack of a final appealable order.    The judgment of the trial court in Perry App. No.
12CA16 is affirmed.
By: Hoffman, J.
Gwin, P.J.   and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

Perry County, Case No. 12-CA-15, 12-CA-16                                                  11
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHARLES E. KERN, ET AL.                                                                    :
:
Plaintiffs-Appellees                                                                       :
:
-vs-                                                                                       :    JUDGMENT ENTRY
:
DONALD DUTIEL, ET AL.                                                                      :
:
Defendants-Appellants                                                                      :    Case No. 12-CA-15
For the reasons stated in our accompanying Opinion, the judgment of the trial
court  in  Perry App. No.  12CA15  is dismissed for lack  of  a final appealable  order.
Costs to Appellants.
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHARLES E. KERN, ET AL.                                                         :
:
Plaintiffs-Appellees                                                            :
:
-vs-                                                                            :   JUDGMENT ENTRY
:
DONALD DUTIEL, ET AL.                                                           :
:
Defendants-Appellants                                                           :   Case No. 12-CA-16
For the reasons stated in our accompanying Opinion, the judgment of the trial
court in Perry App. No. 12CA16 is affirmed.   Costs to Appellants.
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

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