[Cite as Axline v. Conners, L.L.C, 2015-Ohio-4679.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Karen Axline,                                         :

                Plaintiff-Appellant,                  :
                                                                   No. 14AP-924
v.                                                    :       (C.P.C. No. 11CVA-7006)

Kevin R. Conners, LLC et al.,                         :    (ACCELERATED CALENDAR)

                Defendants-Appellees/                 :
                Third-Party Plaintiffs,
                                                      :
ProAssurance Casualty Company,
                                                      :
                Third-Party
                Defendant-Appellee.                   :




                                         D E C I S I O N

                                   Rendered on November 12, 2015


                F. Harrison Green Co., LPA, and F. Harrison Green, for
                appellant.

                Peterson, Conners, Fergus & Peer LLP, Gregory S. Peterson,
                and Istvan Gajary, for defendants-appellees.

                Roetzel & Andress, LPA, Bradley L. Snyder, and Jeremy S.
                Young, for third-party defendant-appellee.

                  APPEAL from the Franklin County Court of Common Pleas.

KLATT, J.
        {¶ 1} Plaintiff-appellant, Karen Axline, appeals a judgment of the Franklin County
Court of Common Pleas that granted summary judgment to defendants-appellees,
Kevin R. Conners and Kevin R. Conners, LLC, as well as third-party-defendant,
No. 14AP-924                                                                                2

ProAssurance Casualty Company. For the following reasons, we reverse the grant of
summary judgment to defendants and affirm the grant of summary judgment to
ProAssurance.
          {¶ 2} From 2000 to 2007, Axline owned and operated Granville Title Agency,
Limited. In early 2007, the Ohio Attorney General's office began investigating mortgage
loans on which Axline had acted as title agent. The attorney general suspected that Axline
had closed multiple fraudulent loans.                Axline hired Conners to represent her in
connection with the investigation and any future criminal charges.
          {¶ 3} Ultimately, Axline was indicted on over 40 counts, including counts for theft,
receiving stolen property, money laundering, and falsification. In August 2009, Axline
pleaded guilty to ten counts. Axline accepted a plea deal believing that she would only
receive community control and the state would not file a sentencing recommendation.
          {¶ 4} Contrary to Axline's understanding, two days before her sentencing, the state
filed a sentencing memorandum in which it contended that "a sentence of imprisonment
of at least six years is necessary to adequately address the Defendant[']s actions." (Oct. 21,
2009 Sentencing Memorandum, 1-2.) The trial court sentenced Axline to a four-year
term of imprisonment at the October 23, 2009 sentencing hearing.
          {¶ 5} In May 2010, Axline moved for judicial release. The trial court granted that
motion, and released Axline from prison in December 2010.
          {¶ 6} On June 7, 2011, Axline filed a legal malpractice action against Conners.1
Axline alleged that Conners negligently (1) misrepresented to her that she would receive
community control and the state would not file a sentence recommendation prior to
sentencing, (2) failed to file a sentencing memorandum on her behalf prior to her
sentencing, (3) failed to obtain in writing the state's agreement not to recommend a
sentence, (4) failed to provide an affirmative defense, (5) failed to investigate case law
related to mortgage fraud to acquire the knowledge necessary to competently represent
her, (6) failed to call witnesses or present mitigating evidence at the sentencing hearing,
(7) advised her to not respond to the impact witness who testified at the sentencing
hearing, (8) misrepresented the facts underlying the charges to the trial court at the
sentencing hearing, (9) failed to address inaccuracies in the indictment, (10) failed to

1   Axline later amended her complaint to add Kevin R. Conners, LLC as a defendant.
No. 14AP-924                                                                              3

disclose to her that he intended to negotiate a plea rather than prove her innocence, and
(11) failed to properly prepare her for a proffer session with the state that occurred prior
to sentencing.
       {¶ 7} Defendants answered Axline's complaint and filed a third-party complaint
against ProAssurance, which provided Kevin R. Conners, LLC with professional liability
insurance. Defendants alleged that ProAssurance had breached the insurance policy by
denying them coverage for Axline's claims. Defendants sought damages and specific
performance.
       {¶ 8} Both defendants and ProAssurance moved for summary judgment.
Defendants argued that the statute of limitations barred Axline from asserting her
malpractice claims. ProAssurance argued that defendants' insurance coverage did not
apply to Axline's claims because the actions underlying those claims either occurred or
were related to conduct that occurred prior to the policy's retroactive date.
       {¶ 9} In a judgment dated October 9, 2014, the trial court granted both
defendants' and ProAssurance's motions for summary judgment. Axline now appeals that
judgment and assigns the following errors:
               [I.] The trial court erred in granting Appellees-Defendants,
               Kevin R. Conners, LLC and Kevin R. Conners' Motion for
               Summary Judgment on all Counts of Appellant-Plaintiff's
               Amended Complaint.

               [II.] The trial court erred in granting Appellee-Third-Party
               Defendant, ProAssurance Casualty Company's Motion for
               Summary Judgment on Counts One and Two of the Appellee -
               Conners Defendants' Third Party Complaint.

       {¶ 10} Axline's assignments of error challenge the trial court's rulings on summary
judgment. A trial court will grant summary judgment under Civ.R. 56 when the moving
party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion when viewing the evidence most strongly in favor of the non-moving
party, and that conclusion is adverse to the non-moving party. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d
158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for
summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court
No. 14AP-924                                                                                4

conducts an independent review, without deference to the trial court's determination.
Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.);
White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
       {¶ 11} By her first assignment of error, Axline argues that genuine issues of
material fact precluded the trial court from determining, as a matter of law, the date on
which the attorney-client relationship between her and Conners terminated. Because the
evidence on that issue is conflicting, Axline maintains that the trial court could not decide
on summary judgment whether she filed her legal malpractice claims within the one-year
statute of limitations. We agree.
       {¶ 12} A party must file a claim for legal malpractice within one year of the time
the cause of action accrues. R.C. 2305.11(A); Smith v. Conley, 109 Ohio St.3d 141, 2006-
Ohio-2035, ¶ 4. An action for legal malpractice accrues "when there is a cognizable event
whereby the client discovers or should have discovered that his injury was related to his
attorney's act or non-act and the client is put on notice of a need to pursue his possible
remedies against the attorney or when the attorney-client relationship for that particular
transaction or undertaking terminates, whichever occurs later." Zimmie v. Calfee, Halter
& Griswold, 43 Ohio St.3d 54 (1989), syllabus. This test requires two factual
determinations: (1) when the client knew or should have known that his attorney may
have caused him injury, and (2) when the attorney-client relationship terminated. Smith
at ¶ 4. The statute of limitations starts running on the latter of the two dates. Id.
       {¶ 13} Here, the trial court determined that Axline should have known that
Conners may have injured her at the close of her October 23, 2009 sentencing hearing.
Axline does not dispute that determination. Rather, she argues that the trial court erred
in determining, as a matter of law, when the attorney-client relationship between her and
Conners terminated.
       {¶ 14} Generally, the attorney-client relationship is consensual, subject to
termination by the acts of either party. Boggs v. Baum, 10th Dist. No. 10AP-864, 2011-
Ohio-2489, ¶ 19.     To determine whether an attorney-client relationship has ended,
" 'courts look for a discrete act (or acts) by either party that signals the severing of their
relationship.' " Cotterman v. Arnebeck, 10th Dist. No. 11AP-687, 2012-Ohio-4302, ¶ 16,
quoting Woodrow v. Heintschel, 194 Ohio App.3d 391, 2011-Ohio-1840, ¶ 43 (6th Dist.);
No. 14AP-924                                                                                  5

accord Smith at ¶ 9 ("[T]he date of termination of the attorney-client relationship * * * is
to be determined by considering the actions of the parties."). Such acts include one party
sending the other a letter stating that the attorney-client relationship is over, as well as the
client's retention of another attorney for representation in the same matter for which the
client had retained previous counsel. Nichter v. Shamansky, 10th Dist. No. 14AP-811,
2015-Ohio-1970, ¶ 19-20; Burzynski v. Bradley & Farris Co., L.P.A., 10th Dist. No. 01AP-
782 (Dec. 31, 2001).
          {¶ 15} The question of when an attorney-client relationship terminates is a
question of fact. Smith at ¶ 9. However, a court may decide the question as a matter of
law if either party has undertaken affirmative actions that are patently inconsistent with
the continued attorney-client relationship. Boggs at ¶ 18. "For a trial court to grant
summary judgment on the grounds that an act of either party has terminated the
attorney-client relationship, the 'act must be clear and unambiguous, so that reasonable
minds can come to but one conclusion from it.' " Duvall v. Manning, 11th Dist. No. 2010-
L-069, 2011-Ohio-2587, ¶ 27, quoting Mastran v. Marks, 9th Dist. No. 14270 (Mar. 28,
1990).
          {¶ 16} In the case at bar, the parties have vastly different recollections regarding
the course of their relationship after Axline's sentencing. According to Conners, either the
day of or the day after Axline's sentencing, he told Axline's daughter-in-law, Candace
Axline, that he could no longer represent Axline.2 In his deposition, Conners testified he
told Candace:
                   [U]nder these circumstances, given what this judge has done,
                   I believe that it is in Karen's best interest for someone else to
                   be able to approach this judge and deal with this situation
                   because [the judge] literally * * * said one thing to me and did
                   another.

(Conners Depo., 100-01.) Conners believed that, after that conversation, Axline retained
another attorney, W. Joseph Edwards, "to do whatever would be next." (Conners Depo.,
101.)
          {¶ 17} Axline, however, testified in her deposition that, sometime in the two weeks
after her sentencing, Conners visited her in the Franklin County Jail. During that visit,

2   Candace Axline is a corporate tax attorney who practices in California.
No. 14AP-924                                                                             6

Conners told her that "[w]e need more eyes on this." (Axline Depo., 30.) According to
Axline, that was when "Candace found Joe [Edwards]. And the intention was for him to
work with Kevin to get me out of there." (Axline Depo., 30.) Axline later clarified that
Conners "advised [her] to get someone to look at the case [and] also to file the appeal and
then they would work together." (Axline Depo., 39.) While visiting Axline at jail, Conners
also told her that he was "sorry this has happened" and he would "fix it." (Axline Depo.,
93.)
          {¶ 18} Five days after Axline's sentencing, Conners filed a motion for
reconsideration with the trial court. On November 9, 2009, Conners filed a reply in
support of that motion.3 The reply was the last filing Conners submitted to the court on
Axline's behalf. On November 25, 2009, Edwards filed a notice of appeal for Axline.
          {¶ 19} According to Axline, Edwards visited her in prison in February 2010 and
told her that he and Conners had decided that a motion for judicial release, rather than an
appeal, was the "quickest route out of prison." (Axline Depo., 172.) Axline agreed to
voluntarily dismiss her appeal, and Edwards filed a dismissal notice in March 2010.
          {¶ 20} While Axline was incarcerated, she had difficulty communicating with
people outside of prison.            Consequently, she asked Candace to communicate with
Edwards and Conners on her behalf. On April 11, 2010, Candace sent an email to
Edwards and Conners about seeking judicial release for Axline. The email stated:
                  It is [Axline's] understanding that you two will be working
                  together in this process. If you could take a minute and walk
                  us through this process, it would be greatly appreciated. * * *
                  Is there an overall strategy for what will be presented? Will
                  you need anything from us or any of the other family
                  members? Please let us know if we can be of any assistance
                  with this petition.

(Exhibit A-3.)
          {¶ 21} When Candace received no reply, she sent a second email, asking Edwards
and Conners if they could "at least confirm whether [they were] in fact preparing and
submitting Karen's judicial release petition." (Exhibit A-3.) This time, Conners responded,
stating that he "need[ed] to figure out what's the best way to do do [sic] this," and he
would call Edwards. (Exhibit A-3.)

3   The trial court denied the motion for reconsideration on December 1, 2009.
No. 14AP-924                                                                              7

       {¶ 22} On April 29, 2010, Conners emailed Candace again, stating:
                 I just spoke with Joe Edwards - here is what we are going to
                 do:

                 1. Joe is going to check the statute to confirm the first date
                 that the motion can be filed. (I will too). * * *

                 2. In the meantime it makes some sense for someone (you or
                 whoever you think is best) to outline what Karen's plans are
                 upon release. The basics. I don't need a book – but we are
                 going to have to tell the court what those plans are at some
                 point anyway. I am thinking a Word document - and send it
                 to me.

                 3. * * * I will also find out what the drill is [regarding
                 requesting an institutional report regarding Axline].

                 Once I talk to my friend that has done a fair number of these I
                 will figure what else it is we have to do.

(Exhibit A-2.)
       {¶ 23} Candace then asked Conners how many hours it would take to draft and file
the motion for judicial release. Conners responded that "it is safe to say we are talking 5-
10 hours at a minimum. My plan is to make this as simple as possible." (Exhibit A-2.)
When Candace expressed surprise at that length of time, Conners replied:
                 I am thinking right now that I need to spend at least a couple
                 hours – like 2 or 3 – to see that things are set up right to
                 happen ASAP. I need to start doing that – and see what
                 comes up as I proceed. Probably makes the most sense to just
                 let you know what I need to do (when I know) – and I can
                 estimate how much time might be involved.

(Exhibit A-2.)
       {¶ 24} On May 6, 2010, Candace emailed Conners regarding her dissatisfaction
with the estimate of Edwards' paralegal that it would take two weeks "to get everything
pulled together, reviewed by Joe, and filed with the court." (Exhibit A-4.) Candace stated,
"This is exactly why Karen wants your continued involvement. She trusts you to be
working towards her best interests. Is there anything that can be done to get this thing
filed sooner rather than later?" (Exhibit A-4.) Conners replied that "[w]e need to file the
request itself to get things moving. There are a few additional things to do – but we need
No. 14AP-924                                                                             8

to do that first." (Exhibit A-4.) The next day, Conners sent Candace a motion for judicial
release that another attorney had filed in a different case to review as an example.
Conners stated that he had "done nothing to it yet." (Exhibit A-4.)
       {¶ 25} On May 17, 2010, Edwards filed the motion for judicial release with the trial
court. Conners did not sign the motion. In response to the motion, the state requested to
speak with Axline. However, Axline mistrusted the prosecutors and had deep reservations
about meeting with them again. In a June 21, 2010 email to Edwards and Conners,
Candace explained Axline's concerns and stated:
               Joe and Kevin, I know you are extremely busy; however,
               Karen desperately needs the advice of her attorneys here. She
               has asked us to consult with another attorney, and I would
               like to avoid that if at all possible. However, our backs are
               against the wall. A meeting with the prosecution could have
               catastrophic consequences if Karen does not get adequate
               information and representation before this meeting.

               Joe – [Your paralegal] said you would call me today to discuss
               the purpose of the meeting. Is it possible for you to call [the
               prison] and speak with Karen directly? * * * If you are too
               busy * * *, please just let us know, no hard feelings, we'll find
               someone else who can dedicate the time to focus on Karen's
               release.

               Kevin – can you help in preparing Karen? You were present
               during the proffers, know the facts better than anyone, and
               hopefully can help Karen in preparing answers to the
               questions the State is after now.

(Exhibit A.)
       {¶ 26} Axline met with the prosecutor, and he agreed to recommend judicial
release. Edwards represented Axline in court proceedings related to her motion for
judicial release. The trial court granted the motion, and Axline was released from prison
in December 2010.
       {¶ 27} In granting summary judgment in the instant case, the trial court found that
the parties' attorney-client relationship terminated on November 25, 2009—the date on
which Edwards filed the notice of appeal on Axline's behalf. Axline argues that the record
contains evidence that contravenes the trial court's finding. Looking at the actions of the
parties, we perceive two actions that could indicate the termination of the attorney-client
No. 14AP-924                                                                            9

relationship. First, Conners told Candace that "it would be best for someone else to take
[the] whole thing over" within a day of Axline's October 23, 2009 sentencing. (Conners
Depo., 102-03.) Conners believed that his conversation with Candace ended his attorney-
client relationship with Axline.
       {¶ 28} While such a conversation could signal a severing of the parties'
relationship, it is belied by Axline's version of events. According to Axline, sometime
during the two weeks after her sentencing, Conners visited her in jail and advised her "to
get someone [else] to look at the case [and] also to file the appeal and then they would
work together." (Axline Depo., 39.) Speaking about that time, Axline stated, "I never
realized [the attorney-client relationship] had terminated. I considered him to be – I
didn't think he would just leave me in prison. I expected him to be totally part of the
case." (Axline Depo., 38.)
       {¶ 29} Moreover, Conners' own actions show that the attorney-client relationship
had not completely ended in late October 2009. Conners filed a motion for
reconsideration and a reply in support of that motion after his conversation with
Candace.    In his deposition, Conners characterized these actions as "batting some
cleanup" and acknowledged that, due to his filing of the motion and reply, his
representation of Axline continued past October 23 or 24, 2009. (Conners Depo., 210.)
       {¶ 30} Given the conflicting evidence, we conclude that questions of fact remain
regarding whether the late October discussion between Conners and Candace terminated
the attorney-client relationship. We thus turn to the second action that could have
indicated the end of the relationship: Axline's engagement of another attorney.
       {¶ 31} As we stated above, hiring another attorney to work on the same matter for
which the client hired the first attorney may terminate an attorney-client relationship.
Nichter at ¶ 20. In its decision, the trial court never explicitly stated that Axline's
retention of Edwards constituted the act that severed the relationship with Conners.
However, the trial court implicitly communicated this conclusion when it designated
November 25, 2009—the date of Edwards' first appearance in court on Axline's behalf—as
the date on which the parties' relationship ended.
       {¶ 32} To rebut this conclusion, Axline directs us to the email correspondence
between Candace and Conners. She maintains that this correspondence shows that
No. 14AP-924                                                                                   10

Conners performed legal work for her after November 25, 2009, so he remained her
attorney after that date. The trial court recognized that the record contained evidence
that Conners was still involved in Axline's legal struggles after November 25, 2009, but it
found that Conners was merely an unpaid consultant during that period.                    This
characterization relied on Axline's deposition testimony, in which Axline herself called
Conners a consultant. But that is only half the story. In full, Axline testified as follows:
              Q: And tell me how it is that you came to be represented by
              Mr. Edwards.

              A: When – right after I was sentenced Kevin said, ["]We need
              more eyes on this.["] And Candace found Joe. And the
              intention was for him to work with Kevin to get me out of
              there.

              Q: Do you have any understanding as to whether Mr. Conners
              himself did any work on your appeal?

              A: I think he consulted with Joe.

              ***

              Q: Do you have a belief that Mr. Conners was representing
              you during the course of the appeal?

              A: Well, yes. Particularly after the appeal was dismissed. And
              they decided – I believe jointly – that a judicial release would
              be – would get me out of there sooner.

              ***

              Q: Okay. Have you seen any notices of appearance filed by
              Mr. Conners in the appellate action?

              A: He was not involved with the appeal. Only as a consultant.
              It was when * * * it was decided jointly for my best course of
              action to be a judicial release that he became relevant.

              ***

              Q: You didn't have an agreement with Kevin Conners that he
              would represent to you or provide legal advice to you
              regarding the appeal, did you?
No. 14AP-924                                                                              11

              A: I never realized it had terminated. I considered him to be –
              I didn't think he would just leave me in prison. I expected
              him to be totally part of the case.

              Q: But you had hired Mr. Edwards to represent you on the
              appeal, hadn't you?

              A: On Mr. Conners' advice.

              Q: Wait a minute. I thought you told me Candace was the one
              who found Mr. Edwards?

              A: Candace found Joe. But Kevin advised me to get someone
              to look at the case [and] also to file the appeal and then they
              would work together.

(Axline Depo., 30-32, 38-39.)
       {¶ 33} In Axline's view, Conners only consulted on the appeal but he represented
her in tandem with Edwards for purposes of the motion for judicial release.             This
testimony, therefore, does not necessarily show that Conners' representation of Axline
terminated upon her engagement of Edwards.
       {¶ 34} Additionally, we are hesitant to draw any conclusions about the duration of
the attorney-client relationship based on whether Conners charged Axline for legal work
after she hired Edwards. The record contains only one bill from Conners, sent October 3,
2007. Axline did not remember receiving any other bills, and Conners admitted that he
"did not send her very many bills." (Conners Depo., 195.) In his deposition, Conners
replied, "Correct," when the questioning attorney stated, "[Y]ou recognized the fact that
Karen was having some financial problems and you maybe weren't treating this like you
would a normal case in terms of billing her for everything you were doing." (Conners
Depo., 195.) If Conners was not billing Axline for all his work, then the lack of a bill does
not necessarily indicate the lack of an attorney-client relationship.
       {¶ 35} The ultimate question here is whether Axline filed her suit against Conners
within the one-year statute of limitations. Axline filed her suit on June 7, 2011. On
appeal, Conners argues that he is entitled to summary judgment unless Axline can
demonstrate that the attorney-client relationship continued past June 7, 2010 into the
one-year period prior to her filing suit. This argument turns the applicable precedent on
its head. To prevail on summary judgment, Conners must point to a clear and
No. 14AP-924                                                                             12

unambiguous affirmative action terminating the attorney-client relationship that
occurred prior to June 7, 2010. See Boggs at ¶ 18; Duvall at ¶ 27. If Conners cannot
prove a decisive act that terminated the parties' relationship before June 7, 2010, then a
trier of fact must decide when the relationship terminated.
       {¶ 36} The most definitive affirmative action that Conners can point to is Axline's
retention of Edwards. But Axline maintains that she hired Edwards in addition to, not in
replacement of, Conners. Thus, the actions Conners took for Axline in 2010 are significant
because they show whether the attorney-client relationship between Conners and Axline
survived the hiring of Edwards.
       {¶ 37} Reviewing the entirety of the record, we can identify evidence that supports
Conners' contention that the attorney-client relationship terminated when Axline hired
Edwards. Conners did not visit Axline in prison, he did not communicate with Axline
while she was in prison, and he did not sign the motion for judicial release or otherwise
appear in court with regard to the motion for judicial release. All this evidence bolsters
Conners' case that he ceased being Axline's attorney after she retained Edwards.
       {¶ 38} On the other hand, we can also identify evidence to the contrary; namely,
the April through June 2010 emails.       In those emails, Conners described the legal
research he intended to do and directed Candace to send him evidentiary material to
support the motion for judicial release. Conners repeatedly spoke of what "we," i.e., he
and Edwards, planned to do regarding Axline's motion for judicial release. Moreover,
Conners never demurred when Candace referred to him as Axline's attorney and told him
that Axline wanted his continued involvement.
       {¶ 39} In short, the evidence is equivocal. A trier of fact could conclude from the
evidence that Conners was a mere consultant, only relied on for his familiarity with the
underlying facts. Alternatively, a trier of fact could conclude that Conners continued to
perform legal work for Axline.
       {¶ 40} Given the conflicting evidence in the record, we conclude that the trial court
erred in granting Conners summary judgment. The question of when an attorney-client
relationship terminates is normally a question of fact. Smith at ¶ 9. This record does not
contain the type of evidence necessary for a court to decide that question as a matter of
law. Accordingly, we sustain Axline's first assignment of error.
No. 14AP-924                                                                              13

       {¶ 41} By Axline's second assignment of error, she argues that the trial court erred
in granting ProAssurance summary judgment on the third-party claims Conners asserted
against it. We find that Axline does not have standing to appeal that ruling.
       {¶ 42} "Appeal lies only on behalf of a party aggrieved by the final order appealed
from." Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm., 140 Ohio St. 160 (1942),
syllabus. A party is aggrieved, and thus has standing to appeal, if (1) he has a present
interest in the subject matter of the litigation and (2) he has been prejudiced by the
judgment of the trial court. Willoughby Hills v. C. C. Bar's Sahara, Inc., 64 Ohio St.3d
24, 26 (1992); Chase Bank USA, N.A. v. Jacobs, 10th Dist. No. 11AP-343, 2012-Ohio-64,
¶ 7. The interest in the underlying litigation must be immediate, and not a remote
consequence of the judgment. Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of
Zoning Appeals, 91 Ohio St.3d 174, 177 (2001). "A future, contingent, or speculative
interest is not sufficient to confer standing to appeal." Id. To show prejudice, the party
must demonstrate that the trial court's error injuriously affected him. Ohio Contract
Carriers Assn., Inc. at 161.
       {¶ 43} Generally, a party does not have standing to prosecute an appeal to protect
the rights of a third party. Warino v. Worldwide News Corp., 7th Dist. No. 12 MA 153,
2013-Ohio-5884, ¶ 14; Mulqueeny v. Mentor Chiropractic Ctr., Inc., 11th Dist. No. 2001-
L-034 (Apr. 12, 2002). In such an appeal, the appealing party is usually unable to
demonstrate its own present interest in the appealed issue.
       {¶ 44} Here, defendants sued ProAssurance for breach of an insurance policy to
which Axline is neither a party nor an intended third-party beneficiary. Axline has not
pointed to any present interest she has in the outcome of the suit between defendants and
ProAssurance. Conceivably, Axline has an interest in assuring the collectability of any
judgment she may win against defendants, and retaining ProAssurance as a party to the
overall litigation will further that interest. Axline, however, will not have any claim
against ProAssurance unless she first obtains a judgment for damages against defendants.
See R.C. 3929.06(B); accord W. Broad Chiropractic v. Am. Family Ins., 122 Ohio St.3d
497, 2009-Ohio-3506, ¶ 28 ("R.C. 3929.06(B) precludes an injured person from bringing
a civil action against the tortfeasor's insurer until the injured person has first obtained a
judgment for damages against the insured and the insurer has not paid the judgment
No. 14AP-924                                                                                14

within 30 days.").    Consequently, at this point in the litigation, Axline only has a
contingent interest in the dispute between defendants and ProAssurance. She does not
have the immediate interest necessary for her to have standing to appeal. See State Auto
Mut. Ins. Co. v. Bd. of Trustees Fraternal Order of Eagles Aerie 2232, 4th Dist. No.
01CA728, 2003-Ohio-1057, ¶ 22-24 (victim injured by a tortfeasor had no standing to
appeal the grant of a judgment that excused an insurer from indemnifying the tortfeasor);
St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 83 (2d
Cir.2005) (plaintiff could not appeal the dismissal of a third-party complaint seeking a
declaration that the third-party-defendant insurers were required to defend and
indemnify the defendant). Accordingly, we overrule Axline's second assignment of error.
       {¶ 45} For the foregoing reasons, we sustain the first assignment of error and
overrule the second assignment of error. We affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas, and we remand this cause to
that court for further proceedings in accordance with law, consistent with this decision.

                                         Judgment affirmed in part and reversed in part;
                                                                       cause remanded.

                           TYACK and DORRIAN, JJ., concur.

                               ___________________
