Ritchie v. Mahoning County

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CV 1524

          For Plaintiff-Appellee Attorney Kimberly Young Attorney Matthew Carty.

          For Defendant-Appellant Attorney Paul Gains Mahoning County Prosecutor Attorney Gina Bricker Assistant Prosecutor.

          Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite, J.

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Mahoning County appeals the trial court's judgment finding that it did not have jurisdiction to consider the County's motion for summary judgment asserting sovereign immunity precluded a suit against the County filed by Plaintiffs-Appellees, Robin and Rocky Ritchie. The trial court had previously issued a judgment entry overruling a motion to dismiss on the issue of sovereign immunity, which the County did not appeal.

         {¶2} The County's summary judgment motion stricken by the trial court was actually a motion for reconsideration, which is a nullity in Ohio. Accordingly, we dismiss this appeal for lack of jurisdiction.

         Facts and Procedural History

         {¶3} The Ritchies filed a complaint against the County and Mahoning County Dog Pound employees alleging negligence and reckless conduct for injuries Robin sustained when she was attacked by a pit bull at the County Pound when she was on the premises to adopt a dog.

         {¶4} The County filed a motion to dismiss asserting the County and its employees were engaged in a governmental function and immune from suit pursuant to R.C. 2744.02. The trial court overruled the motion to dismiss in a one-sentence judgment entry. No appeal was taken.

         {¶5} More than seven months later, the County filed a motion, captioned "motion for summary judgment" which, like the motion to dismiss, relied exclusively on the allegations in the complaint. The County once again argued that it was engaged in a governmental function. The only distinction in the summary judgment motion, apart from the citation to the Civ. R. 56(B) standard of review, was the County's reliance on a Fifth District case which was decided less than one month after the trial court overruled the County's motion to dismiss.

         {¶6} In the trial court's judgment entry striking the County's summary judgment motion, it recognized that its judgment entry overruling the motion to dismiss was a final appealable order, pursuant to Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839. "When a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C)." Hubbell, syllabus. Because the County did not appeal the judgment entry overruling the motion to dismiss, the trial court reasoned that it did not have jurisdiction to reconsider the same arguments and struck the summary judgment motion from the record.

         Appellate Jurisdiction

         {¶7} For clarity of analysis, we will consider both of the County's ...