Napier v. Ickes

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[Cite as Napier v. Ickes, 2015-Ohio-3500.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT KATHERINE NAPIER, GUARDIAN, ET AL. Plaintiffs-Appellants JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. Case No. 14-CA-96 -vsTERRY ICKES, ET AL. OPINION Defendant-Appellee -vsSTATE FARM FIRE AND CASUALTY COMPANY Intervenor-Appellee CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 13 CV 217 JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: August 24, 2015 APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee - Terry Ickes SCOTT ELLIOT SMITH Scott Elliot Smith, LPA 5003 Horizons Drive, Suite 200 Columbus, Ohio 43220 WILLIAM SCOTT LAVELLE Smith, Rolfes & Skavdahl,Co., LPA 65 East State Street, Suite 2000 Columbus, Ohio 43215 For Defendants-Appellees- Barry & Elizabeth Phillips HARRY DIPIETRO 7 West Liberty Street Girard, Ohio 44420 Licking County, Case No. 14-CA-96 2 For Defendants-Appellees- Barry & Elizabeth Phillips TIMOTHY J. RYAN Gallagher, Gams, Pryor, Tallan & Littrell LLP 471 East Broad Street, 19th Floor Columbus, Ohio 43215 For Defendant-AppelleeIntervenor State Farm Fire & Casualty Company JOHN F. MCLAUGHLIN Rendings,Fry, Kiely & Dennis LLP 600 Vine Street, Suite 2650 Cincinnati, Ohio 45202 For Defendant-Appellee HUNTER GRAY 51 Allison Drive Heath, Ohio 43056 For Defendant-Appellee BRADY WATTERS 132 North Court Thornville, Ohio 43076 For Jerry Ickes ROBERT H. WILLARD 529 South Third Street Columbus, Ohio 43215 For Hunter Gray ROBERT E. CALESARIC Calesaric Law 35 South Park Place, Suite 150 Newark, Ohio 43055 For Hunter Gray TODD M. ZIMMERMAN Rohrbachers, Cron, Manahan, Trimble, Zimmerman 655 Metro Place South, Suite 600 Dublin, Ohio 43017 Licking County, Case No. 14-CA-96 3 Hoffman, P.J. {¶1} Plaintiffs-appellants Katherine Napier, Guardian, et al. appeal the October 1, 2014 Nunc Pro Tunc Judgment Entry entered by the Licking County Court of Common Pleas, which granted summary judgment in favor of intervenor-appellee State Farm Fire and Casualty Company (“State Farm”). STATEMENT OF THE CASE AND FACTS1 {¶2} On February 28, 2013, Appellants filed a Complaint, naming Hunter Gray, State Farm’s insured, as one of a number of defendants. The Complaint sought damages suffered by Appellant Frederick Alex Napier after Gray shot him using an emptied plastic shotgun shell, referred to as a "wad", as ammunition. On May 22, 2014, State Farm filed a motion to intervene, which the trial court granted. {¶3} State Farm filed a motion for summary judgment on July 30, 2014, asking the trial court to declare no coverage existed covering Gray's act. Via Judgment Entry filed September 15, 2014, the trial court granted summary judgment in favor of State Farm, finding the harm suffered by Appellant Frederick Alex Napier was not accidental; therefore, not an occurrence as defined by the policy, and the exclusion for bodily injury that is expected or intended precludes coverage. State Farm filed a motion to amend the judgment entry to included Civ. R. 54(B) language. The trial court did so via a Nunc Pro Tunc Judgment Entry on October 1, 2014. {¶4} It is from this judgment entry Appellants appeal, raising as error: {¶5} "I. THE TRIAL COURT ERRED BY MISAPPLYING OHIO LAW AND FOUND NO QUESTION OF FACT EXISTED DEFENDANT HUNTER GRAY 1 A complete Statement of the Facts is not necessary for our disposition of this appeal. Licking County, Case No. 14-CA-96 4 INTENDED THE INJURY PLAINTIFF-APPELLANT NAPIER SUFFERED WHEN GRAY DISCHARGED A WAD IN THE DIRECTION OF THE PLAINTIFF-APPELLANT." I {¶6} As a preliminary matter, we must first determine whether the order under review is a final appealable order. If an order is not final and appealable, then we have no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event that the parties to the appeal do not raise this jurisdictional issue, we must raise it sua sponte. See, Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N .E.2d 64, syllabus; Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d 922. {¶7} We decline to address the merits of Appellants' arguments at this time as we find the order being appealed is not a final appealable order, despite the trial court's certification under Civ.R. 54(B). We do so under the authority of the Ohio Supreme Court's decision in Walburn v. Dunlap, 2009-Ohio-1221. See, also, Kallaus v. Allen, 5th Dist. App. No. 09-CA-0002, 2009 -Ohio- 6339. Licking County, Case No. 14-CA-96 {¶8} 5 Having concluded no final appealable order exists in this case, we dismiss this appeal for lack of jurisdiction. By: Hoffman, P.J. Farmer, J. and Wise, J. concur

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