[Cite as Bilinovich v. Klinck, 2012-Ohio-4431.]


STATE OF OHIO                     )        IN THE COURT OF APPEALS
                                  )ss:     NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

BRIAN M. BILINOVICH, et al.                                C.A. No.      11CA0042

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
CAMERON R. KLINCK, et al.                                  COURT OF COMMON PLEAS
                                                           COUNTY OF WAYNE, OHIO
        Defendants                                         CASE No.   08-CV-0207

and

MOTORISTS MUTUAL INSURANCE
COMPANY

        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2012



        MOORE, Presiding Judge.

        {¶1}     Plaintiffs-Appellants,      Brian   and     Laura    Bilinovich   (collectively   “the

Bilinoviches”), appeal from the June 29, 2010 order of the Wayne County Court of Common

Pleas granting Defendant-Appellee’s, Motorists Mutual Insurance Company (“Motorists”),

motion for summary judgment and denying the Bilinoviches’ motion for summary judgment, and

the August 2, 2011 judgment entry resolving all remaining claims. For the following reasons, we

reverse.
                                                 2


                                                 I.

        {¶2}    In March of 2008, the Bilinoviches filed a complaint against various defendants,

including Cameron R. Klinck, for unauthorized timbering on their property. The complaint

alleged that Mr. Klinck trespassed on their property, converted their property, and violated R.C.

901.51 by recklessly cutting down, destroying, and otherwise injuring vines, bushes, saplings,

and trees. The complaint also requested punitive damages, alleging that Mr. Klinck’s actions

were intentional and malicious. Mr. Klinck filed a pro se answer to the Bilinoviches’ first

complaint. Subsequently, the Bilinoviches filed an amended complaint that Mr. Klinck failed to

answer. The trial court granted the Bilinoviches’ motion for default judgment against Mr.

Klinck, for liability only, and later held a damages hearing.

        {¶3}    At the damages hearing, the trial court entered judgment against Mr. Klinck in the

amount of $75,000 for trespass, and $225,000 for violating R.C. 901.51. The Bilinoviches, by

oral motion, “voluntarily dismissed” the claims for conversion and punitive damages pursuant to

Civ.R. 41(A).

        {¶4}    Motorists had issued a commercial general liability insurance policy to Mr.

Klinck. The Bilinoviches attempted to file a supplemental complaint against Motorists in order

to collect the monies owed to them by Klinck on the judgment. R.C. 3929.06 states, in relevant

part, that:

        (A)(1) If a court in a civil action enters a final judgment that awards damages to a
        plaintiff for injury, death, or loss to the person or property of the plaintiff or
        another person for whom the plaintiff is a legal representative and if, at the time
        that the cause of action accrued against the judgment debtor, the judgment debtor
        was insured against liability for that injury, death, or loss, the plaintiff or the
        plaintiff’s successor in interest is entitled as judgment creditor to have an amount
        up to the remaining limit of liability coverage provided in the judgment debtor’s
        policy of liability insurance applied to the satisfaction of the final judgment.
                                                 3


        (2) If, within thirty days after the entry of the final judgment * * *, the insurer
        that issued the policy of liability insurance has not paid the judgment creditor an
        amount equal to the remaining limit of liability coverage provided in that policy,
        the judgment creditor may file in the court that entered the final judgment a
        supplemental complaint against the insurer seeking the entry of a judgment
        ordering the insurer to pay the judgment creditor the requisite amount. * * * [T]he
        civil action based on the supplemental complaint shall proceed against the insurer
        in the same manner as the original civil action against the judgment debtor.

        {¶5}    In their supplemental complaint, the Bilinoviches alleged that, at the time of the

unauthorized timbering, Mr. Klinck was insured under Motorists’ commercial general liability

policy (“the Policy”). Further, the Bilinoviches alleged that the Policy had a limit of $1,000,000

per occurrence. Both the Bilinoviches and Motorists filed cross-motions for summary judgment,

and the trial court denied the Bilinoviches’ motion and granted Motorists’ motion.

        {¶6}    The Bilinoviches appealed. In a journal entry dated October 1, 2010, this Court

dismissed the appeal for lack of jurisdiction because (1) an issue remained as to the amount of

damages awarded to defendant and cross-claimant, CSX Transportation, Inc., and (2) the trial

court’s order did not contain a certification under Civ.R. 54(B).       The trial court issued a

judgment entry dated November 1, 2010, awarding CSX Transportation, Inc. “damages in the

amount of $1.00.”

        {¶7}    The Bilinoviches filed a second appeal, and this Court dismissed the appeal for

lack of jurisdiction. In a journal entry dated February 4, 2011, we stated that based upon the

Supreme Court of Ohio’s decision in Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142,

2008-Ohio-5276, ¶ 18, Civ.R. 41(A)(1) does not allow for a dismissal of a portion of the claims

against a certain defendant because it applies to discrete parties, not discrete causes of action.

Therefore, because the Bilinoviches voluntarily dismissed only two out of four claims against

Mr. Klinck, we concluded that a final judgment did not exist because “the trial court [had] yet to

resolve all claims against all parties * * *.”
                                                  4


       {¶8}      The trial court responded via judgment entry dated June 3, 2011, as follows:

       The court has decided to employ Civ.R. 41(B)(1) to dismiss [the Bilinoviches’]
       conversion and punitive damage claims against [Mr.] Klinck and Mahoning
       Valley Timber. Notice is hereby given pursuant to Civ.R. 41(B)(1) that [the
       Bilinoviches’] conversion and punitive damage claims against [Mr.] Klinck and
       Mahoning Valley Timber will be dismissed with prejudice on or after June 13,
       2011.

       {¶9}      The Bilinoviches filed a third appeal and, again, this Court dismissed the appeal

for lack of jurisdiction. In a journal entry dated July 19, 2011, we stated that “[t]he order from

which [the Bilinoviches] have attempted to appeal informs them that dismissal is a possibility

and states that the claims will be dismissed ‘on or after June 13, 2011,’ but it does not dismiss

the claims.” We concluded that the third appeal “must be dismissed for the same reason as the

first two attempted appeals: the trial court has yet to resolve all claims against all parties, and the

trial court has not certified that there is no just reason for delay in entering judgment under

Civ.R. 54(B).”

       {¶10} The dismissal of their third appeal prompted the Bilinoviches to file a motion for

an order resolving all claims wherein they moved the trial court to “explicitly dismiss all

remaining claims and certify that there is no just reason for delay, as provided in Civil Rule

54(B).” Then, on August 2, 2011, the trial court entered a judgment entry stating:

       Pursuant to the Court’s June 3, 2011 Judgment Entry, all remaining claims in this
       action not previously adjudicated by the Court are hereby dismissed with
       prejudice. In the event any claim remains pending, the Court hereby certifies that
       there is no just reason for delay and this Judgment Entry should be immediately
       appealable pursuant to Civil Rule 54(B).

       {¶11} The Bilinoviches now appeal from the August 2, 2011 judgment entry, along with

the June 29, 2010 judgment entry, and raise three assignments of error for our consideration. In

order to better facilitate our discussion, we will address the three assignments of error together.
                                                 5


                                                II.

                                 ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE
        [BILINOVICHES’] MOTION FOR SUMMARY JUDGMENT.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
        [MOTORISTS’] MOTION FOR SUMMARY JUDGMENT.

                                ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE
        [BILINOVICHES’] MOTION FOR RECONSIDERATION OF THE
        SUMMARY JUDGMENT DECISION, WHICH MOTION WAS BASED ON
        AN INTERVENING OHIO SUPREME COURT RULING.

        {¶12} This case is beginning to take on an eerie similarity to the movie “Groundhog

Day.” The case keeps coming up on appeal only to be returned to the trial court on jurisdictional

issues. Sadly, such is the case in the current appeal. In their three assignments of error, the

Bilinoviches raise issues pertaining to the supplemental action filed against Motorists. They

argue that the trial court erred in denying their motions for summary judgment and

reconsideration, and in granting Motorists’ motion for summary judgment. We agree that the

trial court erred in issuing these rulings, however, for a different reason than the Bilinoviches

have urged.

        {¶13} The Bilinoviches filed their supplemental action prior to obtaining a final

judgment against Mr. Klinck. As previously stated, R.C. 3929.06(A)(2) states, in relevant part,

that:

        If, within thirty days after the entry of the final judgment * * *, the insurer that
        issued the policy of liability insurance has not paid the judgment creditor an
        amount equal to the remaining limit of liability coverage provided in that policy,
        the judgment creditor may file in the court that entered the final judgment a
        supplemental complaint against the insurer seeking the entry of a judgment
        ordering the insurer to pay the judgment creditor the requisite amount. * * *
                                                  6


(Emphasis added.)

        {¶14} Civ.R. 41(A)(1) provides, in relevant part, that:

        [A] plaintiff, without order of court, may dismiss all claims asserted by that
        plaintiff against a defendant by doing either of the following: (a) filing a notice of
        dismissal at any time before the commencement of trial unless a counterclaim
        which cannot remain pending for independent adjudication by the court has been
        served by that defendant; (b) filing a stipulation of dismissal signed by all parties
        who have appeared in the action.

(Emphasis added.) In Pattison at ¶ 20, the Supreme Court of Ohio stated that “Civ.R. 41(A)

allows for a dismissal of all claims against particular defendants.” (Emphasis added.) The Court

concluded that “[t]o allow a partial Civ.R. 41(A) dismissal is potentially prejudicial to

defendants.” Id. As such, the Court determined that, pursuant to Civ.R. 41(A), when a plaintiff

dismisses fewer than all claims against a particular defendant, there is no final, appealable order.

Id. at ¶ 10, 22.

        {¶15} In the present matter, the Bilinoviches voluntarily dismissed only two of the four

claims against Mr. Klinck at the damages hearing: the claims for conversion and punitive

damages. Based upon Pattison, the Bilinoviches’ attempt to dismiss the claims for conversion

and punitive damages was a nullity. Id. at ¶ 19. Thus, at the time the Bilinoviches filed their

supplemental action against Motorists, the claims for conversion and punitive damages remained

pending, and no final, appealable order existed. Accordingly, pursuant to R.C. 3929.06, because

no final judgment existed as to Mr. Klinck in the original action, the Bilinoviches filed their

supplemental action against Motorists prematurely, and the trial court lacked jurisdiction to

consider the motions for summary judgment and reconsideration.

        {¶16} In Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11-12, the Supreme

Court of Ohio outlined different types of “jurisdiction,” stating:
                                                  7


       “Jurisdiction” means “the courts’ statutory or constitutional power to adjudicate
       the case.” The term encompasses jurisdiction over the subject matter and over the
       person. Because subject-matter jurisdiction goes to the power of the court to
       adjudicate the merits of a case, it can never be waived and may be challenged at
       any time. It is a “condition precedent to the court’s ability to hear the case. If a
       court acts without jurisdiction, then any proclamation by that court is void.”

       The term “jurisdiction” is also used when referring to a court’s exercise of its
       jurisdiction over a particular case. “‘The third category of jurisdiction [i.e.,
       jurisdiction over the particular case] encompasses the trial court’s authority to
       determine a specific case within that class of cases that is within its subject matter
       jurisdiction. It is only when the trial court lacks subject matter jurisdiction that its
       judgment is void; lack of jurisdiction over the particular case merely renders the
       judgment voidable.’” “Once a tribunal has jurisdiction over both the subject
       matter of an action and the parties to it, ‘* * * the right to hear and determine is
       perfect; and the decision of every question thereafter arising is but the exercise of
       the jurisdiction thus conferred * * *.’”

(Internal citations omitted.)

       {¶17} Here, the original action was properly filed in common pleas court, thus

conferring subject matter jurisdiction to the trial court. However, as stated above, R.C. 3929.06

mandated a final judgment in the original action against Mr. Klinck, prior to the Bilinoviches

filing a supplemental action against Motorists.         Because the parties failed to follow the

directives set forth in R.C. 3929.06, in that there was no final judgment in the original action, the

trial court did not have jurisdiction over the supplemental action, and could not render judgment.

       {¶18} The trial court’s August 2, 2011 judgment entry is a final, appealable order with

regard to the original action. However, the trial court’s June 29, 2010 order granting Motorists’

motion for summary judgment and denying the Bilinoviches’ motion for summary judgment

with regard to the supplemental action was rendered in error because at the time it was entered,

the court lacked jurisdiction over the case.
                                                 8


                                                III.

       {¶19} Accordingly, we reverse the judgment of the Wayne County Court of Common

Pleas, and remand for further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT



DICKINSON, J.
BAIRD, J.
CONCUR.

(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)
                                           9




APPEARANCES:

J. DOUGLAS DRUSHAL and PATRICK E. NOSER, Attorneys at Law, for Appellant.

MERLE D. EVANS, III, Attorney at Law, for Appellee.
