[Cite as McCualsky v. Appalachian Behavioral Healthcare, 2017-Ohio-1064.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT



Amy McCualsky et al.,                                :

                Plaintiffs-Appellants,               :
                                                                       No. 16AP-442
v.                                                   :            (Ct. of Cl. No. 2011-10240)

Appalachian Behavioral Healthcare et al.,            :          (REGULAR CALENDAR)

                Defendants-Appellees.                :



                                       D E C I S I O N

                                   Rendered on March 23, 2017


                On brief: F. Harrison Green Co., LPA, and F. Harrison
                Green, for appellants. Argued: F. Harrison Green.

                On brief: Michael DeWine, Attorney General, and Eric A.
                Walker, for appellee Appalachian Behavioral Healthcare.
                Argued: Eric A. Walker.

                            APPEAL from the Court of Claims of Ohio
SADLER, J.
        {¶ 1} Plaintiffs-appellants, Amy and David McCualsky, appeal from a May 10,
2016 entry of the Court of Claims of Ohio denying appellants' motion for reconsideration
of the court's March 26, 2016 judgment entry dismissing appellants' complaint pursuant
to Civ.R. 41(A)(2). For the reasons that follow, we find that the May 10, 2016 judgment is
not a final, appealable order, and we must dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On August 15, 2011, appellants filed a complaint in the Court of Claims
against appellee alleging medical negligence and loss of consortium. The complaint also
alleges that plaintiff-appellee Appalachian Behavioral Healthcare permitted an
No. 16AP-442                                                                                           2


unauthorized individual to take Mary McCualsky from appellee's facility and subsequently
assault her. Appellants filed the affidavit of a licensed physician as an exhibit to the
complaint, as required by Civ.R. 10(D).1
        {¶ 3} The Court of Claims stayed the case due to the existence of a connected
action in the Athens County Court of Common Pleas. Appellants subsequently notified
the Court of Claims that the Athens County Court of Common Pleas had dismissed the
connected action, and on June 3, 2014, the Court of Claims lifted the stay and scheduled
the matter for trial. For various reasons, the trial date was twice continued and eventually
rescheduled to September 21, 2015.
        {¶ 4} On the day of trial, appellants orally moved the court for a continuance for
the purpose of obtaining the testimony of certain physicians. The magistrate denied the
motion. Thereupon, appellants made an oral motion to dismiss their complaint pursuant
to Civ.R. 41.     On October 13, 2015, the magistrate issued an "Order of Dismissal,"
purporting to dismiss the complaint pursuant to Civ.R. 41(A)(2). On December 24, 2015,
appellants filed a "Motion for Dismissal Under Rule 41(A)." On January 22, 2016, the
magistrate issued a decision wherein the magistrate repeated the findings and conclusions
made in the October 13, 2015 order of dismissal and "recommended" that appellants'
complaint be dismissed pursuant to Civ.R. 41(A)(2). (Jan. 22, 2016 Decision at 3.) In
accordance with Civ.R. 53, the January 22, 2016 magistrate's decision indicates that "[a]
party may file written objections to the magistrate's decision within 14 days of the filing of
the decision." (Decision at 3.)
        {¶ 5} Appellants filed objections on February 8, 2016 arguing that the magistrate
erred by recommending dismissal, pursuant to Civ.R. 41(A)(2), rather than "an
involuntary dismissal per Civil Rule 41 wherein Plaintiffs are entitled to re-file this
matter." (Objs. at 3.) On March 23, 2016, the Court of Claims issued an "Entry of
Dismissal," wherein the court denied appellants' objections as untimely filed, adopted the
magistrate's recommendation, and dismissed appellants' complaint pursuant to Civ.R.
41(A)(2). On April 8, 2016, appellants filed a motion for reconsideration arguing that they


1 Appellants had previously asserted these claims against appellee in case No. 2010-09094, but they

dismissed their complaint on August 18, 2011 by filing a notice of voluntary dismissal pursuant to Civ.R.
41(A)(1)(a).
No. 16AP-442                                                                               3


had mailed their objections on February 3, 2016, well within the 14-day deadline, but,
through no fault of their own, the Court of Claims did not file the objections until
February 8, 2016.     On May 10, 2016, the Court of Claims issued an entry denying
appellants' motion for reconsideration because "[a] motion for reconsideration of a final
judgment in the trial court is not authorized under the Ohio Rules of Civil Procedure and
is considered a nullity. Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 379 (1981)." (Entry at
1.)
       {¶ 6} On June 9, 2016, appellants filed a notice of appeal to this court from the
May 10, 2016 entry of the Court of Claims. On August 9, 2016, appellee filed a motion to
dismiss the appeal as untimely filed, which this court denied on August 29, 2016.
II. ASSIGNMENT OF ERROR
       {¶ 7} Appellants set forth the following sole assignment of error:
           The trial court erred in denying Plaintiffs-Appellants Motion
           for Reconsideration as a nullity pursuant to Ohio Rules of
           Civil Procedure.
III. LEGAL ANALYSIS
       {¶ 8} In appellants' sole assignment of error, appellants argue that the Court of
Claims erred by denying their motion for reconsideration as a nullity. We disagree.
       {¶ 9} The Court of Claims, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378
(1981), determined that appellants' motion for reconsideration was a nullity because it
sought reconsideration of the March 23, 2016 entry of dismissal, which was a final order.
" '[T]he entire concept of "final orders" is based upon the rationale that the court making
an order which is not final is thereby retaining jurisdiction for further proceedings. A
final order, therefore, is one disposing of the whole case or some separate and distinct
branch thereof.' " Browder v. Shea, 10th Dist. No. 04AP-1217, 2005-Ohio-4782, ¶ 10,
quoting Noble v. Colwell, 44 Ohio St.3d 92, 94 (1989), quoting Lantsberry v. Tilley Lamp
Co., 27 Ohio St.2d 303, 306 (1971).
       {¶ 10} Here, appellants sought reconsideration of the Court of Claims' March 23,
2016 entry of dismissal, wherein the court denied appellants' objections as untimely filed,
adopted the magistrate's recommendation, and dismissed appellants' complaint pursuant
to Civ.R. 41(A)(2). The Court of Claims' judgment entry disposes of all pending claims in
the case. Consequently, the March 23, 2016 entry of dismissal was a final order.
No. 16AP-442                                                                               4


          {¶ 11} The Supreme Court of Ohio in Pitts held that "motions for reconsideration
of a final judgment in the trial court are a nullity." Id. at 379. Accord, BAC Home Loans
Servicing, LP v. Ferguson, 10th Dist. No. 12AP-350, 2012-Ohio-5670, ¶ 13; Kelley v.
Stauffer, 10th Dist. No. 10AP-235, 2010-Ohio-4522, ¶ 6; Estate of Millhon v. Millhon
Clinic, Inc., 10th Dist. No. 07AP-413, 2007-Ohio-7153, ¶ 38; Miller v. Anthem, Inc., 10th
Dist. No. 00AP-275 (Dec. 12, 2000). "A legal nullity by definition is something that 'never
occurred.' " Fravel v. Columbus Rehab. & Subacute Inst., 10th Dist. No. 16AP-270, 2016-
Ohio-5807, ¶ 15, quoting PNC Bank, N.A. v. J & J Slyman, L.L.C., 8th Dist. No. 101777,
2015-Ohio-2951, ¶ 20. " 'Moreover, "[i]t follows that a judgment entered on a motion for
reconsideration is also a nullity and a party cannot appeal from such a judgment." ' "
Levy v. Ivie, 195 Ohio App.3d 251, 2011-Ohio-4055, ¶ 15 (10th Dist.), quoting Rutan v.
Collins, 10th Dist. No. 03AP-36, 2003-Ohio-4826, ¶ 7, quoting Primmer v. Lipp, 5th Dist.
No. 02-CA-94, 2003-Ohio-3577, ¶ 7. See also Aicher v. Aicher, 10th Dist. No. 08AP-859,
2009-Ohio-1268, ¶ 19, quoting State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40
Ohio St.3d 58, 60 (1988) ("[A]ny judgment or final order that results from a motion for
reconsideration 'is a nullity itself.' ").
          {¶ 12} "Ohio appellate courts have jurisdiction to review only final, appealable
orders of lower courts within their districts." K.B. v. Columbus, 10th Dist. No. 14AP-315,
2014-Ohio-4027, ¶ 8, citing Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02.
"If an order is not a final, appealable order, the appellate court lacks jurisdiction and the
appeal must be dismissed." K.B. at ¶ 8, citing Prod. Credit Assn. v. Hedges, 87 Ohio
App.3d 207 (4th Dist.1993). See also Whipps v. Ryan, 10th Dist. No. 12AP-509, 2013-
Ohio-4334, ¶ 22, citing Kopp v. Associated Estates Realty Corp., 10th Dist. No. 08AP-
819, 2009-Ohio-2595, ¶ 6, citing Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio
St.2d 184, 186 (1972).           Consequently, appellate courts may raise, sua sponte, the
jurisdictional question of whether an order is final and appealable. Whipps at ¶ 22, citing
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 87 (1989); State ex rel. White v.
Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544 (1997).2




2   The subsequent amendment to Civ.R. 54(B) supersedes Chef Italiano on other grounds.
No. 16AP-442                                                                                5


       {¶ 13} As set forth above, under Ohio law, a motion for reconsideration of a final
order in a civil case is a nullity and all judgments or final orders from said motion are also
a nullity. Levy; Rutan; Aicher. Because a trial court order denying reconsideration of a
final order is a nullity and not subject to appeal, the Court of Claims' May 10, 2016 entry
denying appellants' motion for reconsideration is not a final, appealable order. Boulware
v. Chrysler Group, L.L.C., 10th Dist. No. 13AP-1061, 2014-Ohio-3398, ¶ 13; Franklin
Univ. v. Ellis, 10th Dist. No. 13AP-711, 2014-Ohio-1491, ¶ 8. Because the order appealed
from is not a final, appealable order, this court lacks jurisdiction, and we must dismiss the
appeal. Id.
IV. CONCLUSION
       {¶ 14} Having determined that this court lacks jurisdiction to hear the appeal in
this matter, we dismiss the appeal.
                                                                          Appeal dismissed.

                      BROWN and LUPER SCHUSTER, JJ., concur.
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