COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58893 DANIEL L. LEWIS SR., ET AL. : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : MOTORISTS INSURANCE CO., ET AL. : OPINION : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 140,934 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants, Daniel Lewis Sr., Daniel Lewis Jr. and Deborah Lewis: GERALD STEINBURG COHEN, STEINBERG & BURBA 1600 Standard Building Cleveland, Ohio 44113 For Intervening Plaintiff- Appellant, Danny Norris: PHILIP A. MARNECHECK 1835 Midland Building Cleveland, Ohio 44115 For Defendant-Appellant, Augusta Williams: THOMAS G. McNALLY 19800 Center Ridge Road Rocky River, Ohio 44116 For Defendants-Appellees, Motorists Insurance Companies and Geckley-Short Insurance Agency: JOSEPH W. PAPPALARDO GARY L. NICHOLSON Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - SPELLACY, J.: On December 8, 1987, plaintiffs-appellants Daniel Lewis, Sr., Daniel Lewis, Jr. and Deborah Lewis ("appellants") filed a complaint in the Cuyahoga County Court of Common Pleas against defendant-appellee Motorists Insurance Company ("appellee-MICO"), defendant-appellee Geckley-Short Insurance Agency ("appellee- Geckley-Short") and the Administratrix for the Estate of Earl C. Wright, Jr., defendant-appellant Augusta Williams ("appellant- Williams"). On March 2, 1988, plaintiff-appellant Danny Norris ("appellant-Norris") was added as an intervening plaintiff. In their complaint, appellants initially alleged that on July 11, 1987, decedent-Earl C. Wright, Jr. negligently operated a motor vehicle in which appellants-Daniel Lewis, Sr., Daniel Lewis, Jr. and Danny Norris were passengers. These appellants claimed that as a result of decedent-Earl C. Wright Jr.'s negligence, they suffered injuries to their mind and body causing pain, disability and permanent damage. Appellant-Deborah Lewis alleged that she was deprived of the companionship of her husband, appellant-Daniel Lewis, Sr. Appellants' complaint also sought a declaratory judgment. Appellants requested the trial court to make a determination of the existence and validity of an automobile liability insurance policy allegedly issued to decedent-Earl C. Wright, Jr. by appellee-MICO. Appellants alleged that appellee-MICO executed a contract of insurance in the name of decedent-Earl C. Wright, -3- Jr., which benefited them as passengers of his vehicle under the policy and also benefited them as a result of his negligence. Finally, in their complaint, appellants alleged that appellee-Geckley-Short negligently failed to ensure continuous automobile insurance coverage for decedent-Earl C. Wright, Jr. Appellants claimed that as a result of appellee-Geckley-Short's negligence, they have been unable to collect the funds due them through the contract of insurance. On March 11, 1988, appellees-MICO and Geckley-Short filed a joint motion to dismiss pursuant to Civ. R. 12(B)(6). On May 25, 1988, the trial court granted the motion to dismiss as to appellee-Geckley-Short but overruled it as to appellee-MICO. On January 30, 1989, appellee-MICO filed a motion for summary judgment on the original complaint, appellant-Norris' complaint, and appellant-Williams' crossclaim./1\ In its motion for summary judgment, appellee-MICO admitted that on June 12, 1987, decedent-Earl C. Wright, Jr. went to the offices of appellee-Geckley-Short, filled out an application for insurance coverage, and deposited $150 as a down payment. Appellee-MICO received the application and down payment, but it advised William Short, an insurance agent and a principal for appellee- Geckley-Short, that it required an additional $142.50 towards the down payment by July 1, 1987. /1\ It must be noted that the trial court's record is devoid of appellant-Norris' complaint and appellant-Williams' answer and crossclaim. -4- Appellee-MICO claimed that when decedent-Earl C. Wright, Jr. learned of the additional amount of money needed for the down payment, he became angry, and on June 30, 1987, he informed William Short that he wanted his money back, because he had found insurance coverage elsewhere. Thus, according to appellee-MICO, decedent-Earl C. Wright, Jr. signed and executed a written cancellation request which immediately cancelled his insurance coverage on June 30, 1987. Apparently, on July 7, 1987, William Short received a copy of a notice of the cancellation, which was dated July 2, 1987 and addressed to decedent-Earl C. Wright, Jr. from appellee-MICO. However, the effective date of the cancellation of the insurance coverage was July 18, 1987. Appellee-MICO claimed that the cancellation date of July 18, 1987 was changed in another notice, in order to reflect the June 30, 1987 cancellation date decedent- Earl C. Wright, Jr. requested. Appellee-MICO asserts this was done in accordance with his request for a cancellation on June 30, 1987 and also to maximize his refund from the original down payment. Appellee-MICO argued in its motion for summary judgment that decedent-Earl C. Wright, Jr.'s cancellation of his insurance policy occurred on June 30, 1987, when he signed the cancellation request. Thus, appellee-MICO claimed that decedent-Earl C. Wright, Jr. cancelled his insurance coverage before the automobile accident on July 11, 1987. -5- In support of its motion for summary judgment, appellee-MICO attached the affidavit of William Short and other documentary evidence. Included in appellee-MICO's evidence was a copy of the cancellation request which was signed by decedent-Earl C. Wright, Jr. on June 30, 1987. Appellee-MICO also submitted the notices of cancellation and other insurance policy materials. On July 5, 1989, appellants-Daniel Lewis, Sr., Daniel Lewis, Jr., Deborah Lewis, Danny Norris and Augusta Williams filed a joint motion for summary judgment. Appellants argued that the June 30, 1987 date, in which decedent-Earl C. Wright, Jr. signed the "Policy Change Request" for a cancellation of the policy, did not control the date upon which the policy would terminate. They claimed that appellee-MICO was required to establish a cancellation date, which it could unilaterally choose. According to appellants, appellee-MICO chose July 18, 1987 as the cancellation date. Appellants asserted that the first notice of cancellation issued on July 2, 1987 properly reflected a termination date of July 18, 1987. They argued that appellee-MICO improperly reprocessed the cancellation date to June 30, 1987 after it became aware of the automobile accident on July 11, 1987. Thus, appellants claimed that appellee-MICO's insurance policy covering decedent-Earl C. Wright, Jr. was in force at the time of the subject accident and that they were entitled to coverage thereunder. -6- In support of their motion for summary judgment, appellants attached several documents. Much of appellants' documentary evidence was the same as that submitted by appellee-MICO. Appellants also cited to portions of the depositions of William Short and John Heffernan. On July 21, 1989, the trial court granted appellee-MICO's motion for summary judgment, and on August 17, 1989, appellants filed a joint motion to vacate said order. Appellants argued that although the trial court granted them an extension of time on April 4, 1989 to file their motion for summary judgment and a brief in opposition, the trial court failed to state a particular time period related thereto. Appellants believed that when they filed their motion for summary judgment on July 5, 1989, they would have been provided an additional thirty days to respond to appellee-MICO's motion for summary judgment. Therefore, appellants requested the trial court to vacate the entry of July 21, 1989 granting appellee-MICO's motion for summary judgment. On August 18, 1989, while their joint motion to vacate was still pending in the trial court, appellants filed a notice of appeal with this court from the trial court's order of July 21, 1989. This court, in Case No. 58300, remanded the proceedings to the trial court, in order to address appellants' joint motion to vacate. On November 3, 1989, the trial court granted appellants' joint motion to vacate. The trial court proceeded to review all the motions and pleadings filed by the parties and then granted -7- appellee-MICO's motion for summary judgment. In the same journal entry, the trial court overruled appellants' motion for summary judgment. On December 1, 1989, appellants filed the instant appeal with this court and it was assigned Case No. 58893. On December 11, 1989, this court dismissed, sua sponte, Case No. 58300 for appellants' failure to file a brief. On April 11, 1991, this court dismissed, sua sponte, the instant appeal for lack of a final appealable order. However, on May 24, 1991, this court reinstated the appeal after the trial court entered a nunc pro tunc entry adding the requisite Civ. R. 54(B) language to its November 3, 1989 journal entry. On May 1, 1991, the trial court issued an order adding the language: "There is no just reason for delay."/2\ Appellants subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-MOTORISTS INSURANCE COMPANIES. /2\ We find that the instant appeal is now properly before this court for two reasons. First, after the trial court vacated its July 21, 1989 order, it conducted a completely new review of all the parties' motions and pleadings and then specifically ruled on their respective motions for summary judgment. It is from the trial court's subsequent ruling on the parties' motions for summary judgment, not the motion to vacate, that appellants are appealing from. Second, since several claims are still pending against decedent-Earl C. Wright, Jr.'s estate, this court was never vested with jurisdiction, until the trial court's nunc pro tunc entry added the requisite Civ. R. 54(B) language. Thus, this court never did have jurisdiction in Case No. 58300, since the requisite language of Civ. R. 54(B) was not initially included in the trial court's orders. -8- II. THE TRIAL COURT ERRED BY DENYING THE JOINT MOTION FOR SUMMARY JUDGMENT OF PLAINTIFFS, INTERVENING PLAINTIFF, AND DEFENDANT AUGUSTA WILLIAMS, ADMINISTRATRIX. III. THE TRIAL COURT ERRED BY FAILING TO PERMIT APPELLANTS AN OPPORTUNITY TO EITHER RESPOND TO THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT, MOTORISTS INSURANCE COMPANIES, FILE APPROPRIATE PLEADINGS, AND/OR OPPOSING AFFIDAVITS. IV. THE TRIAL COURT ERRED BY GRANTING THE MOTION TO DISMISS FILED ON BEHALF OF DEFENDANT- APPELLEE GECKLEY-SHORT INSURANCE AGENCY. Appellants' first two assignments of error will be addressed jointly, since they both pertain to the propriety of the trial court's order overruling their motion for summary judgment and granting summary judgment in favor of appellee-MICO. A motion for summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). The motion for summary judgment should not be granted unless reasonable minds could reach but one conclusion. In reviewing a motion for summary judgment, the inferences from the underlying facts are construed in the light most favorable to the nonmoving party. Civ. R. 56(C); Wills v. Frank Hoover Supply (1986), 26 Ohio St. 3d 186, 188; Hounshell v. American States Insurance Co. (1981), 67 Ohio St. 2d 427, 433. The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. -9- Further, a reviewing court, upon an appeal from a summary judgment, should look at the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1974), 37 Ohio St. 2d 150. In the instant case, the central issue is whether there was an effective cancellation of decedent-Earl C. Wright, Jr.'s insurance policy with appellee-MICO at the time of the subject accident on July 11, 1987. We are confronted with competing arguments and evidence submitted by both appellants and appellee-MICO. The gravamen of appellants' argument is that there was no effective cancellation of the insurance policy on July 11, 1987. In supporting their motion for summary judgment, appellants submitted evidence which apparently demonstrated that appellee-MICO intended the cancellation date to be July 18, 1987. In the "Notice of Cancellation" sent to decedent-Earl C. Wright, Jr. by appellee- MICO on July 2, 1987, appellee-MICO stated that the insurance policy was being cancelled on July 18, 1987. Appellee-MICO sets forth several arguments in support of its claim that the cancellation of decedent-Earl C. Wright, Jr.'s insurance policy took effect on June 30, 1987, when he signed the request for cancellation. Appellant submitted a copy of the "Policy Change Request" document which decedent-Earl C. Wright, Jr. signed on June 30, 1987. Appellee-MICO claims that this constituted advance written notice of cancellation, effective on June 30, 1967. -10- Appellee-MICO further contends that any processing of decedent-Earl C. Wright, Jr's cancellation, which occurred after he signed the cancellation request on June 30, 1987, is immater- ial and a nullity. Thus, appellee-MICO claims that the July 2, 1989 notice of cancellation, which set July 18, 1987 as the cancellation effective date, is of no legal consequence. According to appellee-MICO, said notice was automatically generated by its computer and that another notice changing the cancellation date to June 30, 1987 was supposed to be issued. On July 22, 1987, a second notice of cancellation with an effective date of June 30, 1987 was issued. Given the foregoing standard for reviewing a motion for summary judgment, we find that there exists genuine issues of material fact as to whether decedent-Earl C. Wright, Jr.'s insurance policy with appellee-MICO was in effect on July 11, 1987. Neither appellants nor appellee-MICO was entitled to judgment as a matter of law. Accordingly, we conclude that summary judgment was appropriately denied as to appellants and was erroneously granted on behalf of appellee-MICO. Appellants' first assignment of error is well taken and is sustained. Appellants' second assignment of error is without merit and is overruled. In their third assignment of error, appellants argue that they were not provided ample time to respond to appellee-MICO's motion for summary judgment. -11- The trial court's record clearly indicates that on April 4, 1989, appellants were granted an extension of time in order to file their motion for summary judgment and a brief in opposition to appellee-MICO's motion for summary judgment. We find that appellants had sufficient time to respond to appellee-MICO's motion for summary judgment. In fact, appel- lants' joint motion for summary judgment requested the trial court to issue an order denying appellee-MICO's motion for summary judgment. In essence, appellants' joint motion for summary judgment constituted a response to appellee-MICO's motion for summary judgment. Moreover, in light of our ruling with respect to appellants' first assignment of error, we conclude that appellants have failed to demonstrate any prejudice. We have already concluded that summary judgment was improperly granted in favor of appellee-MICO. Appellants' third assignment of error is not well taken and is overruled. Appellants argue in their fourth assignment of error that the trial court erred in granting appellee-Geckly-Short's motion to dismiss. Pursuant to Civ. R. 54(B), an order which adjudicates fewer than all the claims involved, without the express determination of "no just reason for delay", is not a final appealable order. Stewart v. Midwestern Insurance Co. (1989), 45 Ohio St. 3d 124. -12- We find that this court does not have jurisdiction over the trial court's order dismissing appellee-Geckley-Short. A review of the trial court's order pertaining to appellee-Geckley-Short's dismissal reveals that the trial court did not expressly state "no just reason for delay." Furthermore, appellants are appealing from the trial court's judgment granting summary judgment in favor of appellee-MICO and denying their motion for summary judgment. It is said order that expressly states "no just reason for delay." By the use of such language in one order, a trial court cannot render final another order which is actually interlocutory. R & H Trucking, Inc. v. Occidental Fire & Cas. Co. (1981), 2 Ohio App. 3d 269, 271. Appellants' fourth assignment of error is hereby dismissed for lack of a final appealable order. Trial court judgment is reversed and this cause is remanded for further proceedings consistent with this opinion. -13- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. BLACKMON, J., CONCURS; and DAVID T. MATIA, P.J., DISSENTS LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .