Monday, March 27, 2017

Tenth District: no jurisdiction over appeal from denial of motion for reconsideration

The reason being, of course, that motions for reconsideration of a final judgment simply don't exist under the Civil Rules. Denials of motions for reconsideration therefore can't be final orders, and the court of appeals has no jurisdiction over appeals from non-final orders.

But there is a lot more going on in this case.

The case is McCualsky v. Appalachian Behavioral Healthcare, a medical malpractice suit filed in the court of claims. It was first filed in 2010, then voluntarily dismissed without prejudice and immediately re-filed in 2011. Due to a related proceeding in Athens County, the case was stayed for nearly three years. Ultimately the Athens County case was dismissed, and the court of claims then lifted its stay and set the case for trial.

After several continuances, the trial date arrived in September 2015, but the plaintiffs were not prepared. They moved for another continuance to obtain the testimony of a doctor. That motion was denied, and so the plaintiffs moved for an order dismissing the case under Rule 41(A)(2).

That motion was granted by a magistrate in an order dated October 2015. Believing--correctly, under Rule 53(D)(2)(a)(i)--that order not to be self-executing, the plaintiffs filed a "Motion for Dismissal Under Rule 41(A)" in December 2015. This time the magistrate issued a decision carrying forward her prior findings and "recommending" dismissal under Rule 41(A)(2). After the plaintiffs filed untimely objections, the judge issued an order stating in relevant part that "the court adopts the magistrate's decision and recommendation as its own, and DISMISSES plaintiffs' action pursuant to Civ.R. 41(A)(2)."

The plaintiffs then filed a motion for reconsideration of that order. In that motion for reconsideration (as in their untimely objections) they argued that the magistrate should not have dismissed under Rule 41(A)(2), and rather should have allowed "an involuntary dismissal per Civil Rule 41 wherein Plaintiffs are entitled to re-file this matter." That motion was denied, and the denial was appealed to the Tenth District.

OK--wow. Lot going on there.

The Tenth District ruled that it lacked jurisdiction over the appeal, because "motions for reconsideration of a final judgment in the trial court are a nullity." Anything that's a nullity "never occurred," and thus cannot be the basis for appellate jurisdiction under the Ohio Constitution.

All of which is surely correct, but I still have questions:

First, even though the Civil Rules do not provide for motions for reconsideration of a final judgment, the Rules do provide for motions for relief from a final judgment. Ohio courts generally subscribe to the maxim that substance should control over form, so why didn't any of the courts construe the motion for reconsideration as a motion for relief from judgment under Rule 60(B)? Well, so far as I can tell the answer appears to be that the plaintiffs never asked any of the courts to. Neither in the motion for reconsideration itself, nor in any of the appellate briefs, did the plaintiffs ever mention Rule 60(B).

Second, why move for reconsideration in the first place? The court simply stated that it was dismissing the case "pursuant to Civ.R. 41(A)(2)." Rule 41 says in part that "Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice." Why, then, did the plaintiffs seek through reconsideration an order stating that they "are entitled to re-file" their claims? Of course they can re-file their claims! The dismissal was without prejudice. Any claim dismissed without prejudice can be re-filed within one year under the authority of R.C. 2305.19(A).

Third, what took the court so long to issue its ruling dismissing the appeal? The appeal was filed in June 2016. The appellee moved to dismiss in August 2016, but the court reserved that question for the merits. The case was fully briefed by September 2016. Why not issue the decision for more than six more months?

Fourth, whatever the plaintiffs' thinking in moving for reconsideration in the first place, why pursue the appeal at all? They could have re-filed at any time after that dismissal without prejudice. And in fact, much to my surprise, they did! They filed a new case in the court of claims on March 3, 2017, thus sneaking the re-file in about three weeks before the year expired. Why go through the time, effort, and expense of pursuing an appeal that was mooted by the re-filing anyway? I can't think of any good reason.

These considerations taken together, it's hard to view this case as anything other than a case of careless lawyering. Not being prepared for trial sometimes happens, but there's no excuse for not knowing or understanding the basic rules regarding dismissal, reconsideration or relief from judgment, re-filing, and appellate jurisdiction. An appellate lawyer would have immediately recognized both the frivolousness of the motion for reconsideration and the pointlessness of the appeal.

When choosing counsel--especially appellate counsel--choose an experienced practitioner.

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