Estate of Brown v. McCall

[Cite as Estate of Brown v. McCall, 2023-Ohio-780.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Estate of Charles Wesley Brown, III et al., :
Plaintiffs-Appellants, :
No. 22AP-458
v. : (C.P.C. No. 21CV-6572)
Charles McCall et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 14, 2023
On brief: Joy L. Marshall, for appellants.
On brief: Bentley Law Firm, LLC, and Richard F. Bentley,
for appellee Phillips Funeral Home, Inc.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Plaintiffs-appellants, Estate of Charles Wesley Brown, III (individually “the
estate”), and Verjeanna Brown (individually “appellant Brown”), appeal from an order of
the Franklin County Court of Common Pleas granting summary judgment in favor of
defendant-appellee, Phillips Funeral Home (“Phillips Funeral Home”), on its counterclaim
for breach of contract.
I. Facts and Procedural History
{¶ 2} On October 15, 2021, appellants filed a complaint, naming as defendants
Charles McCall (individually “McCall”), Bankers Life and Casualty Co. (individually
“Bankers Life”), Charli Stevens, Phillips Funeral Home, Community Hospice, Investors
No. 22AP-458 2
Heritage, Telhio Credit Union, Huntington National Bank (individually “Huntington
National”) and the State of Ohio Bureau of Motor Vehicles (“Ohio BMV”).
{¶ 3} According to the complaint, appellant Brown is the wife and representative
of the deceased, Charles W. Brown, III (“decedent”), and McCall is the son of decedent. The
complaint alleged that, on August 3, 2021, decedent was terminally ill and in the care of a
hospice nurse at his home and McCall removed decedent from the home and caused him
to sign a power of attorney making McCall his agent in fact. It was further alleged that
McCall subsequently used the power of attorney to withdraw money from bank accounts,
and to make himself the beneficiary of decedent’s life insurance policies. On August 8,
2021, decedent died at the home of McCall.
{¶ 4} The complaint asserted causes of action for conversion and fraudulent
conversion against McCall, as well as causes of action for negligence against the various
other named defendants. With respect to appellants’ claim against Phillips Funeral Home,
the complaint alleged that Phillips Funeral Home “had to be employed for funeral services
by the next of kin of the decedent,” and that it “abused the corpse of the decedent by
embalming the decedent without consent of the next of kin.” (Compl. at ¶ 91, 96.)
{¶ 5} On November 12, 2021, Phillips Funeral Home filed an answer to the
complaint, a cross-claim against McCall (for indemnification, common law indemnity and
contribution), and a counterclaim against appellant Brown for breach of contract. The
counterclaim alleged that appellant Brown had “executed a Statement of Funeral Goods
and Services Selected with [Phillips Funeral Home],” in which she “promised to pay for the
goods and services.” (Phillips Funeral Home Counterclaim at ¶ 2.) It was further alleged
that, as a result of appellant Brown’s breach, “she is liable to [Phillips Funeral Home] for
the remaining amount due of $12,007.22 and reasonable attorney fees and court costs.”
(Counterclaim at ¶ 4.)
{¶ 6} On November 19, 2021, Bankers Life filed an answer and a counterclaim
against appellants and McCall. Bankers Life alleged it was holding disputed proceeds with
respect to two life insurance policies, and that it could not determine who (i.e., appellant
Brown or McCall) was rightfully entitled to such proceeds without a determination by the
trial court.
No. 22AP-458 3
{¶ 7} On December 7, 2021, appellants filed a notice of dismissal as to Ohio BMV,
Telhio Credit Union, and Investors Heritage. The trial court subsequently granted a motion
to dismiss filed by Community Hospice for failure of appellants to file an affidavit of merit
pursuant to Civ.R. 10(D)(2).
{¶ 8} On December 7, 2021, McCall filed an answer and counterclaim against
appellant Brown seeking indemnification to the extent he is found liable to the estate or
Phillips Funeral Home. On March 7, 2022, Phillips Funeral Home filed a motion to deem
admitted requests for admissions propounded to appellant Brown. On March 9, 2022,
Phillips Funeral Home filed a renewed motion to deem admitted its requests for
admissions. On April 17, 2022, the trial court granted the (renewed) motion of Phillips
Funeral Home and entered an order deeming the propounded requests admitted by
appellant Brown.
{¶ 9} On May 9, 2022, Phillips Funeral Home filed a motion for summary
judgment against appellants. In its memorandum in support, Phillips Funeral Home
argued it was “hired to provide embalming and funeral services” for decedent as described
in an attached “Statement for Funeral Goods and Services signed by [appellant Brown].”
(Mot. for Summ. Jgmt. at 2.) According to Phillips Funeral Home, appellant Brown
authorized the embalming services, and the funeral services she selected required the body
of decedent be embalmed. Phillips Funeral Home further asserted the trial court’s grant of
its motion to deem matters admitted included admissions that the document attached (as
exhibit A) was an authentic copy of the statement for services.
{¶ 10} On June 9, 2022, McCall filed a motion for summary judgment against
appellants. McCall also filed, on June 9, 2022, a motion for default judgment on his
counterclaim against appellant Brown seeking indemnification for any damages to which
Phillips Funeral Home would be entitled for funeral/embalming services. On June 10,
2022, Bankers Life and Huntington Bank filed separate motions for summary judgment
against appellants.
{¶ 11} On June 13, 2022, Phillips Funeral Home filed a reply in support of its motion
for summary judgment. In its accompanying memorandum in support, Phillips Funeral
Home argued it was entitled to judgment on its counterclaim and that “[t]he specific
damage amount will be established by a separate filing because the interest will be
No. 22AP-458 4
calculated as of the date of the judgment.” (Reply in Support of Mot. for Summ. Jgmt. at
2.)
{¶ 12} On June 16, 2022, appellants filed a notice of dismissal of their complaint
pursuant to Civ.R. 41(A). A court “disposition” sheet contained the notation: “Case
Terminated.” On June 23, 2022, the trial court filed a “reactivation entry,” finding the case
was “terminated in error” due to “the pending counterclaims.”
{¶ 13} On June 23, 2022, the trial court filed an order granting the motion for
summary judgment of Phillips Funeral Home on its counterclaim. That entry provided in
part: “Judgment against Plaintiff on Defendant’s Counterclaim is hereby awarded to
Defendant in an amount to be determined separately.” (Order Granting Mot. for Summ.
Jgmt.) On June 30, 2022, Bankers Life filed a motion for default judgment against
appellants on its counterclaim, seeking a declaration that appellants have no claim to the
disputed proceeds. On June 30, 2022, the trial court filed a decision and entry denying
McCall’s motion for default judgment on his counterclaim. On July 25, 2022, appellants
filed a notice of appeal from the trial court’s order of June 23, 2022.
II. Assignments of Error
{¶ 14} On appeal, appellants set forth the following two assignments of error for our
review:
[I.] The Trial Court Erred in Granting Summary Judgment to
the Defendant when the Defendant Put forth Evidence that it
Relied on Authorization Executed by Someone other Than the
Decedent’s Wife to Embalm the Decedent, Thereby Limiting
Depriving the Decedent’s Wife of The Opportunity to Freely
Contract.
[II.] The Trial Court Erred in Granting Summary Judgment
When The Plaintiff Put Forth Evidence that The Contract was
An Unconscionable Adhesion Contract, Wherein Equity
Demands that It Be Unenforceable.
III. Analysis
{¶ 15} Both of appellants’ assignments of error challenge the trial court’s order
granting summary judgment in favor of Phillips Funeral Home on its counterclaim. Before
this court may reach the merits of the assignments of error, we must first address the
threshold jurisdictional issue as to whether we are presented with a final appealable order.
No. 22AP-458 5
In accordance with R.C. 2505.03, the jurisdiction of appellate courts is limited to “the
review of final orders, judgments and decrees.” Corbitt v. State Farm Mut. Auto. Ins. Co.,
10th Dist. No. 03AP-897, 2004-Ohio-1011, ¶ 5. Neither party has specifically raised the
issue of whether the trial court’s order of June 23, 2022 is a final appealable order.
However, “it is well-settled that an appellate court may raise jurisdictional questions sua
sponte and must dismiss an appeal that is not taken from a final appealable order.” Wray
v. Ice House Ventures, L.L.C., 10th Dist. No. 19AP-459, 2020-Ohio-6935, ¶ 9, citing
Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 8 (1oth Dist.).
{¶ 16} An order of a trial court “is final and appealable if it meets the requirements
of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Nationwide Mut. Fire Ins. Co. v. M.B.
Roofing Sys., Inc., 10th Dist. No. 12AP-44, 2012-Ohio-6195, ¶ 7, citing Eng. Excellence, Inc.
v. Northland Assocs., L.L.C., 10th Dist. No. 10AP-402, 2010-Ohio-6535, ¶ 10. Appellate
courts therefore “use a two-step analysis to determine whether an order is final and
appealable.” Id. The first step requires the court to determine “if the order is final within
the requirements of R.C. 2505.02.” Second, the reviewing court “determines whether
Civ.R. 54(B) applies and, if so, whether the order being appealed contains a certification
that there is no just reason for delay.” Id. Civ.R. 54(B) “is relevant only if the trial court’s
order first qualifies as a final order under R.C. 2505.02.” Eng. Excellence at ¶ 11. See also
Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989) (noting that only “[i]f
the court finds that the order complies with R.C. 2505.02 and is in fact final” must the court
then “take a second step to decide if Civ.R. 54(B) language is required”).
{¶ 17} Because a reviewing court “only has jurisdiction to review final orders, * * *
where a judgment does not meet the requirements of R.C. 2505.02 and Civ.R. 54(B), the
appeal must be dismissed.” Newcomer v. Nationwide Ins. Ent., 10th Dist. No. 02AP-873,
2003-Ohio-960, ¶ 11. The provisions of R.C. 2505.02(B) specify “what kinds of orders,
judgments and decrees are final appealable orders.” Corbitt at ¶ 5. Under R.C.
2505.02(B)(1), an order is a final order if it “affects a substantial right in an action that in
effect determines the action and prevents a judgment.”
{¶ 18} In general, “orders determining liability * * * but deferring the issue of
damages are not final appealable orders because they do not determine the action or
prevent a judgment.” Newcomer at ¶ 12, citing State ex rel. White v. Cuyahoga Metro.
No. 22AP-458 6
Hous. Auth., 79 Ohio St.3d 543, 546 (1997). See also Noble v. Colwell, 44 Ohio St.3d 92,
96 (1989) (“As a general rule, even where the issue of liability has been determined, but a
factual adjudication of relief is unresolved, the finding of liability is not a final appealable
order * * *.”). Further, “ ‘judgments that determine liability, but defer the issues of damages
for later determination, are not final appealable orders * * * because damages are part of a
claim for relief.’ “ Reida v. Thermal Seal, Inc., 10th Dist. No. 01AP-354 (Nov. 29, 2001),
quoting McKee v. Inabnitt, 4th Dist. No. 01CA711 (Sept. 26, 2001). See also Miller v. First
Internatl. Fid. & Trust Bldg., Ltd., 165 Ohio App.3d 281, 2006-Ohio-187, ¶ 25 (6th Dist.)
(“A determination of liability without a determination of damages is not a final appealable
order because damages are part of a claim for relief, rather than a separate claim in and of
themselves.”).
{¶ 19} As noted under the facts, the counterclaim of Phillips Funeral Home against
appellant Brown for breach of contract sought damages for the remaining amount due on
an unpaid funeral bill, as well as “reasonable attorney fees and court costs.” (Counterclaim
at ¶ 4.) While the trial court’s order from which appellants filed their notice of appeal grants
summary judgment in favor of Phillips Funeral Home on its counterclaim, the court’s order
left the “amount [of the award] to be determined separately.” (Order Granting Mot. for
Summ. Jgmt.)
{¶ 20} Here, while the order appealed from determines liability, it does not resolve
the issue of damages (i.e., it does not determine the entire claim for relief), and therefore
such order is not final and appealable. Corbitt at ¶ 7 (dismissing appeal for lack of final
appealable order as “appellants’ breach of contract claim is not completely adjudicated
because the trial court has yet to determine the amount of * * * damages”). See also Jenkins
v. Nelson Frame & Axle Serv., Inc., 10th Dist. No. 77AP-915 (Mar. 23, 1978) (concluding
that appeal “is not taken from a final appealable order since only the issue of liability has
been determined, but the cause is still pending in the trial court upon the issue of damages,
and no judgment can be entered upon the * * * claim * * * until both issues are
determined”); Chilli Assocs. Ltd. v. Denti Restaurants, Inc., 4th Dist. No. 21CA3743, 2022-
Ohio-848, ¶ 33 (trial court’s grant of summary judgment on breach of contract claims,
deferring for later adjudication the amount of damages for costs, expenses, and attorney
fees, “did not fully resolve any” breach of contract claim).
No. 22AP-458 7
IV. Conclusion
{¶ 21} Accordingly, because appellants have not appealed from a final order of the
trial court, we lack jurisdiction to consider the merits of this appeal. See Reida (“In the
absence of a final appealable order, this court lacks jurisdiction to review the assigned
errors.”). Based upon the foregoing, this appeal is sua sponte dismissed for lack of a final
appealable order.
Appeal dismissed.
DORRIAN and BOGGS, JJ., concur.
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