COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68895 JOHN R. MASTER, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION PATRICK J. O'MALLEY, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 280003 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: Patrick J. O'Malley and HAROLD POLLOCK, ESQ. Deborah A. O'Malley HAROLD POLLOCK CO., L.P.A. 1707 Terminal Tower KEVIN F. PAYNE, ESQ. Cleveland, Ohio 44113 PAYNE, PAYNE & COOK 1535 Leader Building 526 Superior Avenue Cleveland, Ohio 44114-1401 For Defendant-Appellees For Defendant-Appellees Jack G. Sword and Carole Sword Robert J. Sazima and Sue Sazima NICHOLAS J. FILLO, ESQ. NANCY C. SHUSTER, ESQ. CAROL SISKOVIC, ESQ. SHUSTER & SIMMONS 1520 Standard Building The Bevelin House Cleveland, Ohio 44113 2913 Clinton Avenue Cleveland, Ohio 44113 For Defendant-Appellee Allstate Insurance Co. Co-Counsel for Defendants- Appellees, Robert J. Sazima and FREDRIC E. KRAMER, ESQ. Sue A. Sazima MCNEAL, SCHICK, ARCHIBALD & BIRO CO., L.P.A. HENRY A. HENTEMAN, ESQ. 700 Skylight Office Tower MEYERS, HENTEMAN, SCHNEIDER 1660 West Second Street & REA CO., L.P.A. Cleveland, Ohio 44113 815 Superior Avenue, 21st Floor Cleveland, Ohio 44114 Attorneys for Defendant-Appellee Nationwide Mutual Ins. Co. Attorney for Defendant-Appellee State Farm Insurance Co. JAMES H. CRAWFORD, ESQ. RHOA, FOLLEN & RAWLIN CO., L.P.A. THOMAS M. COUGHLIN, JR., ESQ. 1850 Midland Building ADAM E. CARR, ESQ. Landmark Office Towers ROGER WILLIAMS, ESQ. 101 Prospect Avenue, West WILLIAMS & SENNETT Cleveland, Ohio 44115 126 W. Streetsboro Street, Suite 4 Hudson, Ohio 44226 - 2 - DYKE, J.: This appeal stems from the dismissal of appellants' complaint for declaratory judgment against the individual appellees and their insurance companies. Appellants filed suit in an effort to have the trial court declare that the appellee insurance companies had no duty under the home owner's policies of their insureds, individually named appellees, to represent the insureds in the actions appellants have brought against them in State and Federal court. Appellants also assign as error the trial court's determinations granting the motions for protective orders filed by several of the appellees in response to appellants' requests for the production of documents and for depositions. Appellants raise three assignments of error. I THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTIONS TO DISMISS THE COMPLAINT/AMENDED COMPLAINT BECAUSE APPELLANTS HAD STANDING TO BRING A DECLARATORY JUDGMENT AGAINST ALL OF THE APPELLEES PRIOR TO OBTAINING A JUDGMENT AGAINST THE INDIVIDUAL APPELLEES IN THE UNDERLYING ACTION. Appellants argue that they had standing to sue for declaratory judgment against the insurers prior to obtaining a judgment against the individual appellees. Appellants' argument is not well taken. The issue presented to this Court for review is whether appellants have standing to seek a declaration that the insurers have no duty to represent their insureds in the other suits filed by appellants against the insureds. We find that appellants have - 3 - no standing because they have no real interest in the contract between the insurance companies and the individual appellees. The doctrine of standing in Ohio, whatever its source, generally requires that litigants establish at a minimum, a real interest in the subject matter of the suit. State, ex rel. Dallman, v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 64 O.O.2d 103, 298 N.E.2d 515, syllabus. This court has stated that standing "requires demonstration of a concrete injury in fact, rather than an abstract or suspected injury." State, ex rel. Consumers League of Ohio, v. Ratchford (1982), 8 Ohio App.3d 420, 424, 8 OBR 544, 548, 457 N.E.2d 878, 889. Ohio State Pharmaceutical Assn. v. Wickham (1989), 61 Ohio App.3d 488, 493. Furthermore, appellants' complaint failed to state a claim for declaratory relief because the issue of the duty of the insurers toward their insureds does not create a controversy to be resolved by the court. A "controversy" exists for purposes of a declaratory judgment when there is a genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 63 O.O.2d 149, 296 N.E.2d 261. Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 13. The trial court did not abuse its discretion in granting the appellees' motions to dismiss for failure to state a claim. Appellants' first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING THE APPELLEE INSURERS' MOTIONS FOR PROTECTIVE ORDERS BECAUSE THEIR CLAIMS AND/OR INVESTIGATORY FILES WERE DISCOVERABLE. - 4 - Appellants contend that they were entitled to discovery of the insurance companies' files. We find this argument to be without merit. In determining a motion to dismiss for failure to state a claim, a trial court reviews only the sufficiency of a complaint. In resolving a Civ.R. 12(B)(6) motion, courts are confined to the averments set forth in the complaint and cannot consider outside evidentiary materials unless the motion is converted, with appropriate notice, into one for summary judgment under Civ.R. 56. State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713. Thompson v. Central Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538. During the proceedings below, appellants aggressively pursued discovery, requesting production of documents and depositions of the appellees, in an attempt to find information in the insurance companies' files which would aid in appellants' other suits. The trial court granted the motions for protective orders, filed in response to appellants' requests, pending the court's decision on the motions to dismiss. The court clearly did not need the additional evidence to determine the merits of the motions to dismiss. The court also must have determined that appellants did not need to conduct discovery until and unless the motions to dismiss were denied. There was no error in prohibiting further discovery until after the motions to dismiss were reviewed and decided. Appellants' second assignment of error is overruled. - 5 - III THE TRIAL COURT ERRED IN DISMISSING APPELLANTS' CLAIMS AGAINST APPELLEE ALLSTATE FOR BREACH OF ITS DUTIES OF GOOD FAITH TO APPELLANTS ON THEIR SEPARATE INSURANCE CONTRACTS WHERE THERE WAS NO ISSUE OF STANDING AS TO APPELLANTS' RIGHT TO BRING SUCH CLAIMS AND APPELLANTS' COMPLAINT/AMENDED COMPLAINT CLEARLY STATED CLAIMS UPON WHICH RELIEF COULD BE GRANTED. Appellants asserted in their complaint that Allstate was in breach of its insurance contract with appellants and all other Allstate insureds by defending the Swords in the lawsuits brought against them by appellants. In the third count of appellants' complaint they allege that Allstate owed a duty to all policy holders "not to provide a defense on claims that are clearly not within the coverage of homeowners' policies issued by it." Appellants argue that the trial court dismissed this claim in error. We do not find merit in appellants' argument. As with the first assignment of error raised by appellants, no justiciable issue or controversy exists by which appellants can claim entitlement to a declaratory judgment. There is not "a genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Wagner v. Cleveland, supra, at 13. Appellants' failed to show how the representation by their insurance company of another of the insurer's policy holders is a breach of contract or breach of the insured's good faith duty to appellants. - 6 - Recent Ohio Supreme Court case law required Allstate to take the defense of the Swords under their home owner's policy provisions. See, Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177. In that case, two lawsuits were filed against the city, one sounding in constitutional violations and the other in defamation. The insurance company refused to provide a defense for the city in both suits. The Ohio Supreme Court held that: Where the insurer's duty to defend is not apparent from the pleadings in the action against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pleaded, the insurer must accept the defense of the claim. Willoughby Hills v. Cincinnati Ins. Co., supra, at the syllabus. Taking each fact as true within appellants' complaint, it is not clear whether or not the complaints made in the defamation and invasion of privacy suit against the Swords entitle them to a defense by Allstate. Following the Ohio Supreme Court's holding, Allstate must tender a defense if the claims of defamation or invasion of privacy are potentially or arguably within the policy coverage. Appellants are not entitled to a declaratory judgment to the effect that Allstate is in breach of its good faith duty to other policy holders where it is simply following the law. This assertion clearly fails to state a claim upon which relief can be granted. - 7 - Appellants' third assignment of error is overruled. The trial court's decisions to grant temporary protective orders to the appellees and to grant appellees' motions to dismiss are affirmed. - 8 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. HARPER, P.J., AND MCMONAGLE, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .