dissenting.
{¶ 17} I respectfully dissent. I agree with Argonaut that so long as it remained subject to appellate review, the case remained pending, and the court in Sheaffer II, 2004-Ohio-6755, 2004 WL 2895985, should have applied Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256.
{¶ 18} The finality of a judgment depends upon the expiration of the appellate process. Cowen v. State ex rel. Donovan (1920), 101 Ohio St. 387, 402, 129 N.E. 719. The trial court entered judgment upon remand from Sheaffer I in October 2003, before the time for Argonaut to file an appeal from Sheaffer I, 2003-Ohio-4810, 2003 WL 22098897, expired. The trial court’s judgment, and a change in controlling law with Galatis, prompted a subsequent appeal by Argonaut. With two appeals pending in two different appellate courts, no final judgment existed.
{¶ 19} When this court considered Argonaut’s motion for acceptance of a discretionary appeal of Sheaffer I, the plaintiffs represented that “[t]he first and foremost reason why this Court should reject Appellant’s appeal is that this case is still pending in the Fifth District Court of Appeals,” and “[t]here is no need for this Court to exercise its discretionary jurisdiction to consider a case which is still pending in a lower appellate court. If this Court’s time and consideration of this matter is ever warranted, it only will be after Appellant has exhausted its appeals of right in the lower courts.”
{¶ 20} After Galatis, this court no longer accepted jurisdiction over a case with a Scottr-Pontzer issue merely to apply Galatis if any aspect of the case remained pending in the courts below. We declined jurisdiction over Scott-Pontzer and Ezawa issues in order for the lower courts to apply Galatis. “[I]t is not the role of this court to accept jurisdiction over a case merely to apply Galatis. That is not the issue over which the appellant in this case requests review, and the courts below are in the position to apply, on remand, the law as it now stands.” Fish v. Ohio Cas. Ins. Co., 101 Ohio St.3d 1210, 2004-Ohio-224, 802 N.E.2d 149 (Lundberg Stratton, J., concurring).
{¶ 21} Neither did any rights vest in the plaintiffs until the appellate process concluded or the time in which to file an appeal expired. A party may claim a vested right when there is a final judgment. Indiana Ins. Co. v. Farmers Ins. Co. of Columbus, Inc., Tuscarawas App. No. 2004 AP 07 0055, 2005-Ohio-1774, 2005 WL 858168, ¶ 42. However, for a judgment to be final, there must be no condition or contingency that may affect the right of the prevailing party. Cowen v. State ex rel. Donovan, 101 Ohio St. at 396, 129 N.E. 719. “Nor does a litigant, successful in the trial court, acquire a vested right upon entry of the judgment; the right is inchoate and does not become vested until the judgment has been affirmed on appeal or the time allowed for appeal has expired.” Fletcher v. *270Tarasidis (1979), 219 Va. 658, 661, 250 S.E.2d 739. Thus, the finality of a judgment is subject to the appellate process.
Critchfield, Critchfield & Johnston, Ltd., and Steven J. Shrock, for appellees. Reminger & Reminger Co., L.P.A., and Amy S. Thomas, for appellant. Paul W. Flowers, Co., L.P.A., and Paul W. Flowers, urging affirmance for amicus 'curiae, Ohio Academy of Trial Lawyers.{¶ 22} When this court declined jurisdiction over Sheaffer I, another appeal was pending in the appellate court. Until the appeals process expired, I believe that this case remained pending, and our opinion in Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, mandated that the court in Sheaffer II apply the intervening case of Westfield v. Galatis as an exception to the law-of-the-case doctrine. Therefore, pursuant to Hopkins, I respectfully dissent. I would reverse the judgment of the court of appeals in Sheaffer II and enter judgment in favor of Argonaut.
O’Connor and O’Donnell, JJ., concur in the foregoing dissenting opinion.