Stephan v. Wacaster

2023 Ohio 4566

• Court: Ohio Court of Appeals
• Decided: December 15, 2023
• Docket: 2023-CA-9
• Status: Published

Opinion

[Cite as Stephan v. Wacaster, 2023-Ohio-4566.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

RICK STEPHAN, SR., ET AL. : : Appellees : C.A. No. 2023-CA-9 : v. : Trial Court Case No. 21 CV 211 : CONNIE WACASTER, ET AL. : (Civil Appeal from Common Pleas : Court) Appellants : :

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OPINION

Rendered on December 15, 2023

W. MICHAEL CONWAY, Attorney for Appellees

THOMAS KENDO, JR., Attorney for Appellants

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TUCKER, J.

{¶ 1} Connie Wacaster appeals from the trial court’s entry of partial summary

judgment finding plaintiffs-appellees Chris Stephan and Rick Stephan, Sr. entitled to

partition of a parcel of real estate and its subsequent issuance of a writ of partition

directing the Miami County Sheriff to divide the parcel among the parties.

{¶ 2} Wacaster contends the Stephans lack a possessory interest in the real estate -2-

entitling them to partition. She also claims the trial court’s writ of partition was an improper

order in aid of execution of a non-final judgment.

{¶ 3} Upon review, we conclude that the trial court’s partial summary judgment

ruling and its writ of partition are interlocutory and not appealable absent Civ.R. 54(B)

certification, which does not exist. Accordingly, Wacaster’s appeal will be dismissed for

lack of an appealable order.

I. Factual and Procedural Background

{¶ 4} Margaret M. Stephan died testate in October 2017. Her will granted life-

estate interests in her farm to her children with remainder interests to her grandchildren.

The operative language provided:

ITEM THREE: I give, devise, and bequeath my 95 acre farm known as

10290 North Newberry-Washington Road, Piqua, Ohio to my daughter,

Connie Wacaster, and my son, DeWayne Stephan, equally, share and

share alike, for Life. The Remainder of the Life Estate of Connie Wacaster,

I give, devise, and bequeath to her children, Tami Body and Todd Wacaster,

equally, and share and share alike. The Remainder of the Life Estate of

DeWayne Stephan, I give, devise, and bequeath to his children, Chris

Stephan and Rick Stephan, equally, and share and share alike.

{¶ 5} DeWayne Stephan died in April 2021. Thereafter, his children, Chris and Rick

Stephan, filed a July 2021 complaint for partition and for an accounting against Connie

Wacaster and other interested parties. The Stephans asserted that upon their father’s

death, their remainder interests vested and they each owned a one-fourth fee-simple -3-

interest in the real estate. Conversely, Wacaster maintained that she and DeWayne

Stephan had been recipients of a joint life estate and that upon DeWayne’s death she

became the sole life-estate owner until her death.

{¶ 6} The trial court entered partial summary judgment in favor of Chris and Rick

Stephan in November 2022, concluding that Margaret’s will did not create a survivorship

tenancy or joint life estate between Connie Wacaster and DeWayne Stephan. Rather, the

trial court reasoned that the will granted them the farm as life-estate tenants in common

and that upon DeWayne’s death, his interest passed to his children, who now hold

separate one-quarter fee-simple interests. That being so, the trial court’s partial summary

judgment ruling found the Stephans entitled to partition of the property. The ruling

contemplated the future appointment of a commissioner to facilitate partitioning the

property as well as the future issuance of a writ of partition. At the time of the trial court’s

partial summary judgment ruling, the Stephans’ claim for an accounting also remained

unresolved.

{¶ 7} Connie Wacaster appealed from the trial court’s entry of partial summary

judgment in favor of Chris and Rick Stephan. After issuing a show-cause order, we

dismissed the appeal on December 21, 2022, for lack of an appealable order. We noted

the existence of the unresolved cause of action for an accounting and the absence of

Civ.R. 54(B) certification.

{¶ 8} Following our dismissal, the Stephans sought summary judgment on their

claim for an accounting. The trial court overruled the motion, finding that they had failed

to establish the absence of a genuine issue of material fact. The next entry in the trial -4-

court’s docket is an April 2, 2023 writ of partition. In that filing, the trial court noted its prior

partial summary judgment ruling finding the Stephans entitled to partition. The trial court

then set forth a legal description of the property at issue and stated:

It is therefore ORDERED, ADJUDGED and DECREED, that a writ of

partition be issued directed to the Sheriff of Miami County, David Duchak,

commanding him, through and on the oath of Michael Moorhead, a

disinterested and judicious freeholder of the vicinity, who is appointed

Commissioner for the purpose, to cause to be divided and set off the

appropriate Plaintiffs and Defendant and each party in interest, respectively,

the part and portion of the estate to which they are herein severally entitled,

as set forth in the findings above.

But if, in the opinion of said Commissioner, the real estate

cannot be divided without manifest injury to its value, he shall report

that fact, with a just valuation of the estate.

The Sheriff shall make due return of his proceedings to this Court.

IT IS SO ORDERED.

(Emphasis and italics in original.)

{¶ 9} Two weeks after the trial court issued its writ of partition, Wacaster moved

for a status conference regarding the ruling. She argued that the trial court’s writ had the

effect of executing on the partial summary judgment finding the Stephans entitled to

partition. Wacaster asserted that the trial court’s partition ruling and its writ of partition

remained interlocutory because the accounting claim was unresolved. That being so, she

reasoned that the writ was an improper order in aid of execution of a non-final judgment. -5-

The record does not reflect that the trial court took any action on Wacaster’s motion for a

status conference. Thereafter, on April 24, 2023, the appointed commissioner, Michael

Moorhead, filed a report advising the trial court that the subject real estate could be

equitably partitioned without impairing its value. Wacaster then appealed from the trial

court’s partial summary judgment ruling finding the Stephens entitled to partition and from

the April 2, 2023 writ of partition.

II. Analysis

{¶ 10} Wacaster advances two assignments of error:

I. The trial court’s November 7, 2022 “Decision and Judgment Entry

Granting Partial Summary Judgment in Favor of Plaintiffs; Overruling

Defendants’ Motion for Summary Judgment” was error.

II. The trial court’s April 2, 2023 “Writ of Partition” was error.

{¶ 11} In her first assignment of error, Wacaster challenges the trial court’s partial

summary judgment ruling finding the Stephans entitled to partition. She maintains that

she has a life-estate interest the entire property and that the Stephans have no

possessory interest until her death.

{¶ 12} In her second assignment of error, Wacaster asserts that the trial court’s

writ of partition is in effect an unlawful order in aid of execution of its partial summary

judgment. Wacaster maintains that an order in aid of execution is improper when the

judgment to be carried into effect is non-final. Given that the cause of action for an

accounting is unresolved, Wacaster contends the partial summary judgment finding that

the Stephans are entitled to partition is non-final. As a result, she claims the trial court -6-

erred in issuing a writ of partition to aid in execution of the partial summary judgment.

{¶ 13} Upon review, we conclude that Wacaster’s appeal must be dismissed for

lack of an appealable order. As set forth above, the Stephans’ complaint contained

causes of action for (1) a writ of partition and (2) an accounting of rental income Wacaster

has received from the property. We previously dismissed Wacaster’s appeal from the trial

court’s entry of partial summary judgment finding the Stephans entitled to partition. We

noted that the accounting claim remained pending and that the partial summary judgment

ruling lacked Civ.R. 54(B) certification. The same situation still exists. The only change is

the trial court’s issuance of its April 2, 2023 writ of partition. But that writ did not transform

the partial summary judgment ruling into an appealable order absent Civ.R. 54(B)

certification. Nor is the writ of partition itself presently appealable.

{¶ 14} The partial summary judgment ruling resolved the first cause of action

insofar as it found that the Stephans had a legal right to partition. Even on that issue,

however, the summary judgment ruling was not final. It explicitly contemplated further

proceedings, namely the appointment of a commissioner to facilitate partition and the

issuance of a writ of partition. On the cause of action for partition, then, the final order

would appear to be the trial court’s April 2, 2023 writ of partition, which directed the sheriff,

acting through an appointed commissioner, to divide the property in accordance with the

trial court’s order. This order satisfied R.C. 5307.04, which governs orders of partition and

states: “If the court of common pleas finds that the plaintiff in an action for partition has a

legal right to any part of the estate, it shall order partition of the estate in favor of the

plaintiff or all interested parties, appoint one suitable disinterested person to be the -7-

commissioner to make the partition, and issue a writ of partition.” In Hack v. Keller, 9th

Dist. Medina No. 14CA0036-M, 2015-Ohio-4128, ¶ 11, the Ninth District noted that

“[p]artition orders have been recognized as final, appealable orders as contemplated by

R.C. 2505.02(B)(1).” See also Mitchell v. Crain, 108 Ohio App. 143, 149, 161 N.E.2d 80

(6th Dist.1958) (“[F]inal orders from which appeals may be had in partition are limited to

the order of partition and the order confirming the sale.”).

{¶ 15} We do agree with the Ninth District’s observation that case law can be

“unclear as to what constitutes a final partition order” subject to appeal. Hack at ¶ 11, fn.

1. In Haynes v. Haynes, 2017-Ohio-49, 80 N.E.3d 1105 (5th Dist.), for example, the Fifth

District found no final appealable order in a partition action where the trial court had found

partition appropriate, but “at the time appellant filed his notice of appeal, the commissioner

had not made a return on the partition of the property, had not reported back to the trial

court, the trial court did not review or approve the commissioner’s report, the parties [had]

not yet decided whether to buy the property at its appraised value, and the writ of partition

had not yet issued.” Id. at ¶ 16.

{¶ 16} In the present case, the trial court’s April 2, 2023 order was styled as a “writ

of partition,” it appears to have been intended as such, and it met the requirements for a

writ of partition found in R.C. 5307.05. Unlike Haynes, the only contingency the trial court’s

ruling contemplated was the commissioner potentially concluding that the property could

not be divided without injury to its value. Prior to Wacaster filing her notice of appeal,

however, the commissioner returned a report confirming that the subject property could

be divided as ordered without a loss of value. Unlike Haynes, it does not appear that any -8-

future action was contemplated when Wacaster appealed from the trial court’s partition

order. In any event, for present purposes we need not definitively determine whether the

trial court’s April 2, 2023 writ of partition was a final order.

{¶ 17} Even assuming that the writ was a final order subject to review pursuant to

R.C. 2905.02(B), our inquiry does not end. “Where a case involves multiple claims or

multiple parties, Civ.R. 54(B) allows a trial court to issue a final judgment that can

immediately be appealed ‘only upon an express determination that there is no just reason

for delay.’ ” Hack at ¶ 12. “Ohio courts addressing the finality of partition orders where

other claims remain pending have held that, in the absence of the requisite Civ.R. 54(B)

certification, there is no final, appealable order.” Id. at ¶ 13 (citing cases). Here the

Stephans’ cause of action for an accounting remains unresolved. Because that claim is

still pending, the trial court’s writ of partition is not appealable absent Civ.R. 54(B)

certification, which does not exist.

{¶ 18} Finally, we reject Wacaster’s contention that the trial court’s writ of partition

is appealable as an improper order in aid of execution of judgment. Wacaster asserts that

it is impermissible to execute on a non-final judgment and that the remedy for an order

issued in aid of execution of a non-final judgment is an ordinary appeal. In support, she

cites State ex rel. Hawes-Saunders Broadcast Properties v. Hall, 2d Dist. Montgomery

No. 19552 (Decision & Entry, Oct. 9, 2002). That case was an original action for a writ of

prohibition. In Hawes-Saunders, the trial court previously had entered partial summary

judgment for specific performance of a shareholder agreement following one party’s

default. The trial court later issued an order in aid of execution of the partial summary -9-

judgment by ordering a stock transfer and threatening appointment of a receiver. The

relators responded by seeking a writ of prohibition to stop orders in aid of execution. They

argued that the order for a stock transfer and the threatened appointment of a receiver

was an improper order in aid of execution of the non-final partial summary judgment.

{¶ 19} For purposes of our analysis in Hawes-Saunders, we assumed arguendo

that the relators were correct about the existence of an improper order in aid of execution

of a non-final judgment. We nevertheless concluded that the trial court did not patently

and unambiguously lack jurisdiction to issue the order. Id. Although it may be error to

execute on a non-final judgment, we held that the trial court possessed the power to do

so. We also concluded that the trial court’s order in aid of execution was immediately

appealable without Civ.R. 54(B) certification because it granted a provisional remedy

insofar as it concerned the appointment of a receiver. Id. See also Whipps v. Ryan, 10th

Dist. Franklin Nos. 12AP-685, 12AP-722, 2013-Ohio-4382, ¶ 16 (recognizing that a

provisional remedy is a remedy other than a claim for relief and that an order granting or

denying a provisional remedy is not subject to Civ.R. 54(B)).

{¶ 20} Here we are unpersuaded that the trial court’s April 2, 2023 partition order

was in aid of execution of a non-final judgment. As explained above, the trial court’s partial

summary judgment found the Stephans entitled to partition while outlining further

proceedings on the issue. Those further proceedings culminated in the April 2, 2023 writ

of partition, which actually resolved the issue. Thus, the writ of partition did not “aid” the

Stephans in “executing” on a judgment, final or otherwise. Rather, the writ of partition was

the trial court’s judgment on the partition issue. In addition, the trial court’s writ of partition -10-

was not a provisional remedy, which was what made the order in aid of execution

immediately appealable in Hawes-Saunders without Civ.R. 54(B) certification. Once

again, “[a] provisional remedy is a remedy other than a claim for relief.” State ex rel. Butler

Cty. Children Servs. Bd. v. Sage, 95 Ohio St.3d 23, 25, 764 N.E.2d 1027, 1029 (2002).

Here, however, a request for a writ of partition was the Stephans’ claim for relief.

{¶ 21} Based on the reasoning set forth above, we conclude that the trial court’s

partial summary judgment ruling and its writ of partition were interlocutory and not

appealable absent Civ.R. 54(B) certification, which does not exist. 1 Accordingly,

Wacaster’s assignments of error are overruled.

III. Conclusion

{¶ 22} The above-captioned appeal is dismissed for lack of an appealable order.

WELBAUM, P.J. and HUFFMAN, J., concur.

1 We note that the Stephans’ complaint names other defendants including Connie Wacaster’s children (Tami Body and Todd Wacaster), Michael Kiesewetter (a farmer renting the subject property), and Rick Stephan, Jr. (a tenant in a residence on the property). In its partial summary judgment ruling, the trial court observed that Chris Stephan and Rick Stephan, Sr. had obtained a default judgment against Rick Stephan, Jr. but had not requested summary judgment against the other named defendants. In addition, the record reveals an apparently unresolved counterclaim filed by Connie Wacaster seeking contribution for her expenses with regard to the subject property. We express no opinion about whether or how the existence of these other defendants or the counterclaim might impact the appealability of any future order, as the parties have not addressed that issue.