[Cite as Parker v. Allstate Property & Cas. Ins. Co., 2012-Ohio-6278.]
                              STATE OF OHIO, BELMONT COUNTY

                                    IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


GREG PARKER, et al.,                                )
                                                    )        CASE NO. 12 BE 2
        PLAINTIFFS-APPELLEES,                       )
                                                    )
        - VS -                                      )                OPINION
                                                    )
ALLSTATE PROPERTY AND                               )
CASUALTY INSURANCE CO.,                             )
                                                    )
        DEFENDANT-APPELLANT.                        )


CHARACTER OF PROCEEDINGS:                                    Civil Appeal from Common Pleas
                                                             Court, Case No. 09 CV 78.


JUDGMENT:                                                    Reversed. May 12, 2011 judgment in
                                                             favor of Allstate P&C reinstated.


APPEARANCES:
For Plaintiffs-Appellees:                                    Attorney Joshua Miller
                                                             JD Miller & Associates
                                                             44 16th Street
                                                             Wheeling, WV 26003

For Defendant-Appellant:                                     Attorney Daniel Hurley
                                                             Crabbe, Brown & James LLP
                                                             500 South Front Street, Suite 1200
                                                             Columbus, OH 43215



JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich

                                                             Dated: December 20, 2012
[Cite as Parker v. Allstate Property & Cas. Ins. Co., 2012-Ohio-6278.]
DeGenaro, J.
        {¶1}     Defendant-Appellant, Allstate Property and Casualty Insurance Company
(Allstate P&C) appeals the December 20, 2011 judgment of the Belmont County Court
of Common Pleas, which, under the auspices of Civ.R. 60(B), sua sponte vacated an
earlier judgment granting partial summary judgment in favor of Allstate P&C and
against Appellees Greg and Christine Parker. On appeal, Allstate P&C asserts that
the trial court lacked the authority to sua sponte vacate its earlier final judgment.
        {¶2}     Upon review, Allstate P&C's assignment of error is meritorious. As a
threshold matter, the trial court lacked jurisdiction to entertain the Parkers' motion to
reconsider its original May 12, 2011 order granting Allstate P&C summary judgment on
the Parkers' UIM claim. The trial court compounded this error by later sua sponte
vacating that order. There is no indication that the prior judgment was void. The trial
court did not vacate the judgment to correct a clerical error. Further, the trial court was
not acting in response to the Parkers' earlier motion for reconsideration and the trial
court did not treat the motion for reconsideration as a Civ.R. 60(B) motion to vacate.
The trial court's December 20, 2011 judgment stated expressly that the court was
acting on its own accord. Accordingly, the judgment of the trial court is reversed and
the May 12, 2011 order granting Allstate P&C summary judgment on the Parkers' UIM
claim is reinstated.
                                                   Facts
        {¶3}     On December 21, 2004, a vehicle driven by Greg Parker was struck from
behind by a vehicle driven by Katherine Dillon, causing him bodily injury. At the time
of the accident, Dillon was insured by a policy issued by Allstate Indemnity Company
(Allstate Indemnity). Dillon's policy contained liability limits of $12,500 per person and
$25,000 for each occurrence.               The Parkers were insured by a policy issued by
(appellant) Allstate P&C, which contained uninsured/underinsured motorist (UM/UIM)
coverage in the amount of $100,000 each person/$300,000 each accident.
        {¶4}     The Parkers' policy contains the following pertinent provision with respect
to UM/UIM coverage. First, it contains an exhaustion requirement, under the heading
"Limits of Liability," which provides:
                                                                                       -2-


              We are not obligated to make any payment for bodily injury under
      this coverage which arises out of the ownership, maintenance or use of
      an underinsured motor vehicle until after the limits of liability for all
      liability protection in effect and applicable at the time of the accident have
      been fully and      completely exhausted by payment of judgment or
      settlements.

      {¶5}    Second, under the heading "Legal Actions," the Policy provides:

       Any legal action against Allstate must be brought within three years of
       the date of the accident. No one may sue us under this coverage unless
       there is full compliance with all the policy terms and conditions.

       {¶6}   On December 19, 2006, just before the statute of limitations had run, the
Parkers filed a complaint against Katherine Dillon and Richard Dillon, Jr. for
negligence in the Belmont County Court of Common Pleas. Despite the fact that the
Parkers had known since May of 2006 that Dillon's Allstate Indemnity policy had a
liability limit of $12,500, the Parkers did not name Allstate P&C as a defendant in order
to seek UIM benefits. The Parkers settled their claim with Allstate Indemnity, the
Dillons' insurer, for $12,500, the policy limit, on December 12, 2008.
       {¶7}   In the meantime, the Parkers did initiate a UIM claim with Allstate P&C,
however, this did not occur until June 5, 2008, over three and a half years after the
accident occurred.    They did this by sending a letter to Dillon's insurer (Allstate
Indemnity), requesting that a claim be initiated and asking that the correspondence be
forwarded to the appropriate UIM adjuster.
       {¶8}   The Parkers filed a complaint (the instant matter) against Allstate P&C in
the Belmont County Court of Common Pleas on February 13, 2009, raising claims for
UIM benefits and for bad faith. Allstate P&C filed an answer on April 7, 2009.
       {¶9}   On January 25, 2010, Allstate P&C filed a motion for summary judgment,
in which it argued that the Parkers' claim for UIM benefits was barred by the three-year
time limit provision contained in Allstate P&C's Policy, citing cases from this district
                                                                                     -3-


and the Ohio Supreme Court holding such provisions are enforceable.             It further
argued that the bad faith claim was frivolous. The Parkers filed a brief in opposition,
and Allstate P&C a reply brief.
       {¶10} On May 12, 2010, the trial court "partially" overruled the summary
judgment. Regarding the UIM claim, the trial court found that "due to the provision in
the policy requiring that the plaintiff exhaust other insurance options by way of
judgment or settlement, the three year provision was not tolled until settlement was
effected." The trial court did not rule on the bad faith claim.
       {¶11} Allstate P&C filed a notice of appeal from the May 12, 2010 judgment,
which was dismissed by this court for lack of a final, appealable order.
       {¶12} Once back in the trial court, on August 20, 2010, Allstate P&C moved the
court to reconsider its May 12, 2010 denial of summary judgment. Essentially, this
was a renewed motion for summary judgment. Allstate P&C asserted that based upon
Ohio Supreme Court precedent it was entitled to summary judgment on the Parkers'
UIM claim. Allstate P&C further noted that the trial court failed to address the bad faith
claim in its prior summary judgment motion, and asked the court to grant summary
judgment on that claim because Allstate P&C did not owe a duty of good faith to the
Parkers. The Parkers filed a brief in opposition on August 31, 2010, and Allstate P&C
replied on September 13, 2010.
       {¶13} On May 12, 2011, the trial court granted Allstate P&C's renewed motion
for summary judgment in part. The trial court concluded that although in the past
causes of action for UIM benefits did not accrue until settlement or judgment with the
tortfeasor established entitlement to UIM coverage, the law had changed, citing R.C.
3937.18 and Regula v. Paradise, 119 Ohio St.3d 1413, 2008-Ohio-3380, 891 N.E.2d
771. The trial court noted that "under the current statute, the three year limitation upon
which Allstate Property and Casualty relies is permitted."
       {¶14} Since the Parkers' complaint for UIM benefits was filed over three years
after the accident, the trial court granted summary judgment in favor of Allstate P&C
on the Parkers' UIM claim, and included the "no just cause for delay language" in the
judgment entry. The trial court did not address the bad faith claim, which remains
                                                                                         -4-


pending in the trial court.
       {¶15} On May 26, 2011, the Parkers filed a motion for reconsideration of the
trial court's order granting summary judgment on the UIM claim. The Parkers asserted
the trial court's May 12, 2011 entry granting Allstate P&C partial summary judgment
erroneously stated that they had failed to file a brief in opposition to Allstate P&C's
renewed motion for summary judgment.
       {¶16} On June 1, 2011, the trial court set the Parkers' reconsideration for oral
hearing on July 5. On June 7, 2011, the trial court issued an entry stating in its entirety
"[r]uling vacated, set aside and held for naught pending ruling on motion for
reconsideration."
       {¶17} On June 21, 2011, Allstate P&C then filed a brief in opposition arguing
that a motion for reconsideration pertaining to a final order is a nullity, and that the May
12, 2011 entry granting summary judgment on the UIM claim was a final, appealable
order since it was entered pursuant to Civ.R. 54(B). Further, Allstate P&C contended
that any order or decision issued by the trial court pursuant to the Parkers' May 26,
2011 motion for reconsideration was itself a nullity.
       {¶18} The Parkers replied, arguing that the court mistakenly failed to consider
its brief in opposition to Allstate P&C's motion and that they were merely asking the
trial court to correct this error and consider the arguments set forth in their brief.
       {¶19} On July 1, 2011, the trial court continued the hearing it had previously set
for the motion for reconsideration to August 1, 2011.
       {¶20} On July 11, 2011, the trial court issued an entry stating:

       The Court hereby corrects its previous Opinion. Counsel for Plaintiff filed
       a timely response to the Renewed Motion for Summary Judgment.
       Nevertheless, the Court finds that the Renewed Motion for Summary
       Judgment was meritorious for the reasons set forth in this Court's
       Opinion.

       This Court's previous order having been vacated, the Court notes that
                                                                                      -5-


       the time for an appeal shall commence with the journalization of this
       Entry.

       {¶21} On August 4, 2011, the trial court set aside its July 1 entry rescheduling
the reconsideration motion hearing because it "was entered in error." In light of that
erroneous entry, the trial court ruled that the "portion of the previous [July 11, 2011]
entry which reads: 'the appeal time shall commence with the journalizing of the entry'"
was "negated." The trial court ordered counsel for Allstate P&C to prepare a judgment
entry memorializing the July 11, 2011 entry ruling in its favor within 14 days. The trial
court further ruled that "[u]ntil said judgment entry is entered, the appeal time shall not
commence to run."
       {¶22} Instead of preparing the entry as requested by the trial court, on August
22, 2011, Allstate P&C filed a memorandum in response to the trial court's order, in
which it asserted, inter alia, its position that the Parkers' appeal time had already
expired, with respect to the UIM claim. Allstate P&C therefore asserted it could not
"prepare or agree to an entry to reflect anything other than that the appeal time had
already expired in this matter."
       {¶23} The Parkers subsequently requested a status conference, asserting that
“there are issues that require discussion that may or may not rise to the level of filing
Motions, including the most recent filing by defense counsel that was not a Motion
requiring a response, but a statement that he was not going to comply with the Court's
recent Order."
       {¶24} The status conference was set for November 7, 2011, and later
continued until December 5, 2011.         It is unclear from the record whether the
conference went forward.
       {¶25} Finally, on December 20, 2011, the trial court issued a judgment entry
stating the following: "On its own motion, pursuant to Civ.R. 60(B), the Court reopens
the issues raised in Defendant's Motion for Summary Judgment and vacates its ruling
granting the same. Parties granted 30 days to brief all issues relating thereto."
 Reconsideration of a Partial Final Judgment Entered Pursuant to Civ. R. 54(B)
                                                                                       -6-


       {¶26} In its sole assignment of error, Allstate P&C asserts:
       {¶27} "The trial court erred in vacating, sua sponte, its judgment entry of May
12, 2011 granting Defendant Allstate Property and Casualty Insurance Company's
motion for summary judgment."
       {¶28} Allstate P&C’s assigned error raises a preliminary procedural question
with respect to partial final judgments which we must first address, namely, whether
partial final judgments entered pursuant to Civ.R. 54(B) may be reconsidered by the
trial court or whether an immediate appeal is necessary. We conclude the trial court
should not have entertained the Parkers' May 26, 2011 motion to reconsider the May
12, 2011 order granting summary judgment on the UIM claim because it was a final,
immediately appealable order. Moreover, the Parkers did not have the option to wait
for the trial court to rule on the pending bad faith claim to appeal the UIM summary
judgment ruling.    Although App.R. 4(B)(5) provides for this option in some partial
judgment situations, it specifically excludes one type of partial judgment from its
operation, that is, a judgment entered under Civ.R. 54(B).
       {¶29} "An order of a court is a final appealable order only if the requirements
of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.” State ex rel. Scruggs
v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, ¶5, citing Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. Civ.R.
54(B) further provides that where a trial court issues a final order as to some, but not
all, of the claims between parties to an action, the trial court has the discretion to enter
that final judgment “with no just cause for delay” to facilitate an immediate appeal of
the judgment. Thus, the trial court can use Civ.R. 54(B) to dictate when a final order is
appealable. By including the requisite language, the order is immediately appealable;
by withholding it the appeal time does not begin to run until all the claims between the
parties are resolved at the end of the case. Here the trial court did not rule on the
Parkers' bad faith claim, which remains pending below. The trial court only disposed
of the UIM claim and included the language from Civ.R. 54(B), determining there was
"no just cause for delay," thereby making the summary judgment in favor of Allstate
P&C on the UIM claim an immediately final appealable order.             See Civ.R. 54(B);
                                                                                        -7-


App.R. 4(A); App.R. 4(B)(5).
       {¶30} Because the May 12, 2011 order granting partial summary judgment in
favor of Allstate P&C on the Parkers' UIM claim was a final order as defined by R.C.
2505.02, and the trial court included the Civ.R. 54(B) triggering language, the Parkers
should have filed a notice of appeal within 30 days of that order. Instead, they filed a
motion for reconsideration of a final judgment, which is a legal nullity the trial court
should not have considered. See Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 379,
423 N.E.2d 1105 (1981). And moreover, any judgments or orders stemming from that
motion for reconsideration are themselves nullities. Id. at 381. Thus, the trial court’s
entries of June 7, 2011 and July 11, 2011 are legal nullities. The correct procedural
posture of the case was that the May 12, 2011 summary judgment in favor of Allstate
P&C on the UIM claim was in full force and effect, the appeal time having expired,
when the trial court sua sponte vacated the May 12, 2011 judgment on December 20,
2011. And Allstate P&C has properly invoked our jurisdiction, having timely appealed
the trial court’s December 20, 2011 judgment entry.
         Sua Sponte Vacating a Final Judgment Pursuant to Civ.R. 60(B)
       {¶31} Turning now to the merits of the assigned error, Allstate P&C correctly
asserts the trial court erred by sua sponte vacating its May 12, 2011 order. There are
limited situations where a trial court may vacate a prior final order sua sponte, namely,
to correct a clerical error pursuant to Civ.R. 60(A) or if the prior order is void ab initio.
In re A.S., 7th Dist. No. 09 JE 17, 2009-Ohio-6246, ¶10-11.
       {¶32} With regard to the first circumstance, Civ.R. 60(A) only permits a trial
court to sua sponte change a prior final order, "for corrections of clerical errors that do
not make substantive changes in a judgment." Here the trial court vacated its earlier
decision to grant summary judgment, which is certainly a substantive modification.
Therefore, Civ.R. 60(A) does not apply.
       {¶33} Second, there is no indication that the prior final order was void ab initio.
"A judgment is considered to be void, and not merely voidable, 'only where the court
lacks jurisdiction of the subject matter or of the parties or where the court acts in a
manner contrary to due process.' " In re A.S. at ¶11, quoting Rondy v. Rondy, 13 Ohio
                                                                                       -8-


App.3d 19, 22, 468 N.E.2d 81 (1983).            Here the trial court had subject matter
jurisdiction over the action.       See R.C. 2305.01.      The court also had personal
jurisdiction over the defendant, Allstate P&C. See R.C. 2307.382.
          {¶34} And although the trial court cited to Civ.R. 60(B) in its entry vacating the
prior judgment, this rule cannot be applied by a court sua sponte. "Pursuant to Civ.R.
60(B), a trial court may relieve a party from final judgment, but only upon motion by a
party."     (Emphasis added.)     In re A.S. at ¶10, citing Deutsche Bank Trust Co. v.
Pearlman, 162 Ohio App.3d 164, 2005-Ohio-3545, 832 N.E.2d 1253, ¶15 (9th Dist.).
Here there was no such motion made.
          {¶35} The Parkers argue the trial court has the discretion to treat their earlier
motion for reconsideration as a motion to vacate pursuant to Civ.R. 60(B) and that the
trial court did as much in this case. This court has recognized that in some situations
the trial court may treat a motion for reconsideration as a motion to vacate. See, e.g.,
Ray v. Dickinson, 7th Dist. No. 03-BE-29, 2004-Ohio-3632, ¶14 (noting that "this court
has on occasion adhered to the idea that trial courts have been allowed some
discretion to treat a motion for reconsideration as a motion to vacate under Civ.R.
60(B)" and citing to other cases). However, where it is apparent that the trial court did
not treat the reconsideration as a motion to vacate, this court should not construe it as
such on appeal. See Uhrin v. City of Campbell, 7th Dist. No. 00 C.A. 53, 2001 WL
1122235 (Sept. 20, 2001), *3.
          {¶36} Here it is clear that the trial court did not treat the motion for
reconsideration as a motion to vacate. First, the trial court had ruled on the Parkers'
motion for reconsideration on July 11, 2011, five months prior to the December 20,
2011 judgment which is the subject of this appeal. There was simply no motion for
reconsideration pending on December 20, 2011 when the trial court vacated its prior
ruling. Second, as held above, the motion for reconsideration and the two judgment
entries issued by the trial court pursuant to the motion are all legal nullities. Third, the
trial court expressly stated in its judgment entry that it was acting sua sponte: "On its
own motion, pursuant to Civ.R. 60(B), the Court reopens the issues raised in
Defendant's Motion for Summary Judgment and vacates its ruling granting the same."
                                                                                     -9-


       {¶37} And even assuming for the sake of argument that the trial court was
acting in response to the Parkers' motion for reconsideration, the motion itself failed to
include any analysis as to why relief was proper under Civ.R. 60(B). Instead, therein
the Parkers simply rehashed the merits of the summary judgment ruling, which is
beyond the scope of Civ.R. 60(B). See Internatl. Lottery, Inc. v. Kerouac, 102 Ohio
App.3d 660, 668, 657 N.E.2d 820 (1995) (a party cannot directly attack a judgment in
a Civ.R. 60(B) motion). A motion to vacate may not be used as a substitute for a
timely appeal from a final judgment. Doe v. Trumbull County Children Services Bd.,
28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus
                                      Conclusion
       {¶38} Based on all of the above, Allstate P&C's assignment of error is
meritorious.   The trial court lacked jurisdiction to entertain the Parkers' motion to
reconsider its May 12, 2011 order granting summary judgment on the Parkers' UIM
claim. That order was final and appealable and the motion for reconsideration was
thus a nullity. The court continued to err by later sua sponte vacating its order granting
summary judgment. Accordingly, the judgment of the trial court is reversed and the
May 12, 2011 order granting summary judgment on the Parkers' UIM claim is
reinstated.
Waite, P.J., concurs.
Vukovich, J., concurs.
