COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59593 GEORGE GLUS, ET AL. : : : PLAINTIFF-APPELLANTS : JOURNAL ENTRY : v. : AND : ALLSTATE INDEMNITY CO., ET AL. : OPINION : : DEFENDANT-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 170889. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: David G. Finley, Esq. 25 Prospect Avenue, N.W. 704-L Cleveland, Ohio 44115 For Defendants-appellees: Alexander M. Andrews, Esq. Stephen J. Goodman, Esq. Ulmer & Berne 900 Bond Court Building Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Plaintiffs-appellants Ann Glus and her son, George Glus, appeal the trial court's denial of their motion for summary judgment and the granting of defendants-appellees motion for summary judgment. Appellants own five rental properties in Cleveland located at 7730 Spafford, 7732 Spafford, 7734 Spafford, 7736 Spafford and 3901 East 78th Street. In addition, the Gluses own their residence which is located at 6845 Ottawa Road. Although the rental properties are mortgaged with Third Federal Savings & Loan, the residence is not. Third Federal requires insurance on the rental properties as a condition of the mortgage. Appellee Cleo Stevenson is a general agent for appellee Allstate Indemnity Company. Mr. Stevenson sold policies of insurance to appellants on the rental properties, but according to Mr. Stevenson, Mrs. Glus repeatedly rejected insurance on the Ottawa Road residence. At issue is whether or not a policy of insurance existed on the Ottawa Road residence. In November, 1988, applications for insurance were signed for the rental properties. According to appellees, no application was submitted for the residence. Mrs. Glus cannot recall whether or not she signed such an application for the residence, but states that it was customary for Mr. Stevenson to fill out the applications for her signature, and that she relied upon him to fill them out correctly. Mrs. Glus maintains that she did want insurance on the residence. -3- On December 6, 1988, policies were issued for four of the rental properties and on the residence. Mrs. Glus received a call from Mr. Tkacz at Third Federal informing her that insurance was required on the rental property at 7734 Spafford. Mrs. Glus said she would "take care of it," and called Mr. Stevenson. Mrs. Glus and Mr. Stevenson have completely different recollections of the ensuing telephone conversation. Mr. Stevenson maintains that during the telephone conversation, Mrs. Glus merely requested that the policy be reissued to correctly reflect 7734 Spafford as the insured location. Mrs. Glus affirms that she telephoned Mr. Stevenson to tell him the policy was incorrect as it showed Third Federal holding a mortgage on the residence. As a result of this conversation, Mr. Stevenson had a new declarations page issued which simply changed the address of the insured location. Mrs. Glus then held two declaration pages, believed she had separate policies, and sent in two premium payments. On December 24, 1988, a fire caused considerable damage at the Ottawa Road residence. Upon review of the claim, Allstate denied coverage. Appellants do not argue on appeal that the trial court erred in granting appellees' motion for summary judgment on the issues of negligent misrepresentation, good faith, punitive damages, attorney fees and appraiser fees. We therefore leave the trial court's ruling on these issues undisturbed. -4- Appellants' first assignment of error. I. THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT. In appellants' first assignment of error, they argue that a material issue of fact exists as to whether or not a contract of insurance was formed so as to provide coverage on the Ottawa Road residence. They also argue that by mailing the policy to appellants, appellees submitted a counter offer which was accepted when appellants mailed in the premium payment. Appellants next argue that there was a ratification of the contract once appellees knew of the error but did not cancel the policy on the residential property. Appellees counter that as no application for insurance on the residence was submitted, no contract of insurance can exist. Appellees argue that the declarations page contained an obvious clerical error because the declarations page showed the policy was for a two family residence, listed Third Federal as mortgagee, had a premium based on the Spafford Road property, and had the appropriate endorsement for rental property. Allstate maintains that if they had meant to insure the Ottawa Road residence, different policy forms and a different premium would have been used. Appellees also argue that appellants are prohibited from arguing the counter offer theory on appeal as it was not raised below. In determining whether or not a motion for summary judgment -5- should be granted, the court must look to Civil Rule 56(C), which reads in pertinent part: (C) Motion and proceedings thereon. *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. *** In Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St. 3d 45, the supreme court reaffirmed its position on granting motion for summary judgment. In part, the court stated: Therefore, absent an affirmative showing by the moving party, appellees herein, that no genuine issues exist as to any material fact, Toledo's Great Eastern Shoppers City, Inc., supra; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66, 8 O.O. 3d 73, 74, 375 N.E. 2d 46, 47; Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 26 O.O. 2d 206, 207, 196 N.E. 2d 781, 783, and that such party is entitled to judgment as a matter of law, no summary judgment may be granted. In its motion for summary judgment, the appellees did not affirmatively show that no genuine issues exist as to any material fact. It is fundamental hornbook law that in order to form a contract, there must be a meeting of the minds: an intent -6- to contract. In the case sub judice, appellee and appellant have dissimilar recollections as to whether or not insurance on the residential property was requested. This question of fact precludes the granting of a motion for summary judgment. Appellants' first assignment of error is well taken. Appellants' second assignment of error. II.THE TRIAL COURT ERRED BY NOT GRANTING APPELLANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT. In the second assignment of error, appellants contend their motion for summary judgment should have been granted because a contract of insurance existed on the residence; and that any mistake was made by the appellees. Appellants state that once the premium check was cashed and not refunded, appellee admitted that a policy existed and should therefore bear the burden of proving that an insurance contract did not exist. Appellees merely state that when reviewing the evidence in their favor, the appellants' motion for summary judgment was appropriately denied. Appellants fail to make an affirmative showing that no genuine issue exists as to any material fact. See Morris, supra. Appellants' argument that a contract existed fails for the same reasons as appellees' argument that a contract did not exist. Appellee contends that appellant did not request insurance on the residence, and appellant contends that insurance on the residence was indeed requested. Not only do appellants and appellees have differing recollections as to whether or not insurance on the -7- residential property was requested, but they also have vastly differing renditions of the telephone conversation which purported to clarify the declarations page. It cannot be determined, as a matter of law, that a contract exists unless these basic factual disputes are first resolved. Therefore, the trial court correctly denied the appellants' motion for summary judgment. Appellants' second assignment of error is overruled. Judgment of the trial court is reversed. -8- This cause is reversed. 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. DAVID T. MATIA, P.J., and GARY TYACK, J. CONCUR.* JAMES D. SWEENEY JUDGE (* SITTING BY ASSIGNMENT: Judge Gary Tyack, 10th District Court of Appeals.) 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. .