[Cite as Reilly v. Rastegar, 2025-Ohio-4972.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
COLLEEN M. REILLY : : C.A. No. 30445 Appellant : : Trial Court Case No. 2023 CV 02320 v. : : (Civil Appeal from Common Pleas FARBOD RASTEGAR MD ET AL. : Court) : Appellees : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on October 31, 2025, this appeal is
dismissed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, JUDGE
HUFFMAN, J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30445
THOMAS J. INTILI, Attorney for Appellant MICHAEL F. LYON & PAUL J. VOLLMAN Attorneys for Appellees
LEWIS, J.
{¶ 1} Plaintiff-Appellant Colleen M. Reilly appeals from an April 7, 2025 order of the
Montgomery County Court of Common Pleas denying her motion for partial summary
judgment. For the following reasons, we dismiss this appeal for lack of a final order.
I. Course of Proceedings
{¶ 2} In May 2023, Reilly commenced a civil action for medical negligence against
Defendants-Appellees Farbod Rastegar, M.D., and Premier Health Specialists, Inc. In her
complaint, Reilly alleged that Dr. Rastegar negligently caused her to sustain a crippling
spinal cord injury during a disc fusion operation.
{¶ 3} Reilly subsequently filed a motion for partial summary judgment in which she
asked the trial court to find the cap on noneconomic damages in R.C. 2323.43(A)(3)
unconstitutional as applied to her for the reasons set forth in Paganini v. Cataract Eye Ctr.
of Cleveland, 2025-Ohio-275 (8th Dist.). On April 7, 2025, the trial court overruled Reilly’s
motion for partial summary judgment due to her failure to carry her initial burden on summary
judgment. The trial court explained, in part:
The Court finds Reilly has failed to meet her initial burden on summary
judgment. To meet that burden, Reilly had to point to clear and convincing
evidence showing the damage cap under R.C. 2323.43(A)(3) is
unconstitutional as applied to her. The Court agrees with Defendants that
Reilly has not pointed to any Civ.R. 56(C) evidence indicating she suffered the 2 type of catastrophic injuries described in R.C. 2323.43(A)(3). Specifically, the
Court finds it cannot consider the expert reports of Drs. Singla and Pedoto.
Moreover, even if the Court could consider those reports, Reilly has pointed to
no evidence that she has suffered noneconomic damages exceeding
$500,000. Absent such evidence, Reilly has not shown that the damage cap
under R.C. 2323.43(A)(3) would apply to her. And if the cap does not apply
to Reilly, the cap cannot be unconstitutional as applied to her.
Decision (Apr. 7, 2025), p. 2.
{¶ 4} Reilly filed a notice of appeal from the trial court’s April 7, 2025 order.
Appellees filed a motion to dismiss this appeal for lack of jurisdiction. Appellees did not
argue that the order was not a final order under R.C. 2505.02(B)(6). Instead, they
suggested that there was no R.C. 2505.02 problem: “Plaintiff-Appellants assert their
motion falls within the constitutionality exception listed in R.C. 2505.02(B)(6). Although it
likely does, the entry is still not appealable simply because there is no Civ.R. 54(B)
certification in the Court’s entry.” Motion to Dismiss, p. 3. Thus, the focus of Appellees’
motion to dismiss was Civ.R. 54(B) non-compliance.
{¶ 5} On April 24, 2025, this court overruled the motion to dismiss. We concluded
that Civ.R. 54(B) is not applicable because the trial court’s order did not “enter a final
judgment as to any claim or party” in the action. The parties then filed their appellate briefs.
In her appellate brief, Reilly raised the following two assignments of error:
THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-
APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE
ISSUE OF R.C. § 2323.43(A)(3)’s CONSTITUTIONALITY FOR LACK OF
SUMMARY JUDGMENT EVIDENCE.
3 THE LIMITATION ON NONECONOMIC DAMAGES IN R.C. §
2323.43(A)(3) IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFF-
APPELLANT AND THE FACTS IN THIS CASE.
{¶ 6} On September 18, 2025, this court ordered the parties to file supplemental briefs
addressing whether the trial court’s April 7, 2025 order was a final order within the meaning
of R.C. 2505.02(B)(6). The parties filed their supplemental briefs. Because the trial court’s
April 7, 2025 order is not a final order under R.C. 2505.02(B)(6), we must dismiss this appeal.
II. The April 7, 2025 Order Is Not a Final Order
{¶ 7} “It is axiomatic that an appellate court has jurisdiction to review only final orders
or judgments of the lower courts in its district.” Onady v. Wright State Physicians, Inc.,
2018-Ohio-3096, ¶ 6 (2d Dist.), citing Ohio Const., art. IV, § 3(B)(2); R.C. 2505.02. “We
have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom
must be dismissed.” Id., citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17,
20 (1989).
{¶ 8} “For a judgment to be final and appealable, it must satisfy the requirements of
R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Id. at ¶ 7, citing Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86, 88 (1989). “Civ.R. 54(B) does not alter the requirement that
an order must be final before it is appealable.” Cooper State Bank v. Columbus Graphics
Comm., 2012-Ohio-3337, ¶ 15 (10th Dist.), citing Gen. Acc. Ins. Co. at 21.
{¶ 9} “As a general rule, the denial of a motion for summary judgment is not a final
appealable order.” Taylor-Jones v. Kettering Med. Ctr., 2021-Ohio-738, ¶ 10 (2d Dist.),
citing State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23 (1966). “This is so because a
denial of summary judgment does not determine the action and prevent a judgment and is
therefore not a final order under R.C. 2505.02.” Id., citing Celebrezze v. Netzley, 51 Ohio 4 St.3d 89, 90 (1990). Indeed, due to the interlocutory nature of a denial of a motion for
summary judgment, parties often may be able to file another summary judgment motion with
the trial court after the first motion is denied. See Moeller v. Estate of Butela, 1987 WL
9867, *1 (8th Dist.) (“Inasmuch as an order denying summary judgment is interlocutory in
nature, it is subject to revision by the trial court at any time prior to the entry of a final
judgment in the case.”), citing Maxey v. Lenigar, 14 Ohio App.3d 458, 459 (10th Dist. 1984).
{¶ 10} There are exceptions to the general rule that a denial of a summary judgment
motion is not final and immediately appealable. R.C. 2505.02(B)(6) provides one of these
exceptions. That section provides, in part, that an order is a final order that may be
reviewed when it is an order “determining the constitutionality of” R.C. 2323.43. Reilly
argues that the trial court’s April 7, 2025 order is a final order pursuant to R.C. 2505.02(B)(6)
because the order determined the constitutionality of R.C. 2323.43. We disagree.
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[Cite as Reilly v. Rastegar, 2025-Ohio-4972.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
COLLEEN M. REILLY : : C.A. No. 30445 Appellant : : Trial Court Case No. 2023 CV 02320 v. : : (Civil Appeal from Common Pleas FARBOD RASTEGAR MD ET AL. : Court) : Appellees : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on October 31, 2025, this appeal is
dismissed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, JUDGE
HUFFMAN, J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30445
THOMAS J. INTILI, Attorney for Appellant MICHAEL F. LYON & PAUL J. VOLLMAN Attorneys for Appellees
LEWIS, J.
{¶ 1} Plaintiff-Appellant Colleen M. Reilly appeals from an April 7, 2025 order of the
Montgomery County Court of Common Pleas denying her motion for partial summary
judgment. For the following reasons, we dismiss this appeal for lack of a final order.
I. Course of Proceedings
{¶ 2} In May 2023, Reilly commenced a civil action for medical negligence against
Defendants-Appellees Farbod Rastegar, M.D., and Premier Health Specialists, Inc. In her
complaint, Reilly alleged that Dr. Rastegar negligently caused her to sustain a crippling
spinal cord injury during a disc fusion operation.
{¶ 3} Reilly subsequently filed a motion for partial summary judgment in which she
asked the trial court to find the cap on noneconomic damages in R.C. 2323.43(A)(3)
unconstitutional as applied to her for the reasons set forth in Paganini v. Cataract Eye Ctr.
of Cleveland, 2025-Ohio-275 (8th Dist.). On April 7, 2025, the trial court overruled Reilly’s
motion for partial summary judgment due to her failure to carry her initial burden on summary
judgment. The trial court explained, in part:
The Court finds Reilly has failed to meet her initial burden on summary
judgment. To meet that burden, Reilly had to point to clear and convincing
evidence showing the damage cap under R.C. 2323.43(A)(3) is
unconstitutional as applied to her. The Court agrees with Defendants that
Reilly has not pointed to any Civ.R. 56(C) evidence indicating she suffered the 2 type of catastrophic injuries described in R.C. 2323.43(A)(3). Specifically, the
Court finds it cannot consider the expert reports of Drs. Singla and Pedoto.
Moreover, even if the Court could consider those reports, Reilly has pointed to
no evidence that she has suffered noneconomic damages exceeding
$500,000. Absent such evidence, Reilly has not shown that the damage cap
under R.C. 2323.43(A)(3) would apply to her. And if the cap does not apply
to Reilly, the cap cannot be unconstitutional as applied to her.
Decision (Apr. 7, 2025), p. 2.
{¶ 4} Reilly filed a notice of appeal from the trial court’s April 7, 2025 order.
Appellees filed a motion to dismiss this appeal for lack of jurisdiction. Appellees did not
argue that the order was not a final order under R.C. 2505.02(B)(6). Instead, they
suggested that there was no R.C. 2505.02 problem: “Plaintiff-Appellants assert their
motion falls within the constitutionality exception listed in R.C. 2505.02(B)(6). Although it
likely does, the entry is still not appealable simply because there is no Civ.R. 54(B)
certification in the Court’s entry.” Motion to Dismiss, p. 3. Thus, the focus of Appellees’
motion to dismiss was Civ.R. 54(B) non-compliance.
{¶ 5} On April 24, 2025, this court overruled the motion to dismiss. We concluded
that Civ.R. 54(B) is not applicable because the trial court’s order did not “enter a final
judgment as to any claim or party” in the action. The parties then filed their appellate briefs.
In her appellate brief, Reilly raised the following two assignments of error:
THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-
APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE
ISSUE OF R.C. § 2323.43(A)(3)’s CONSTITUTIONALITY FOR LACK OF
SUMMARY JUDGMENT EVIDENCE.
3 THE LIMITATION ON NONECONOMIC DAMAGES IN R.C. §
2323.43(A)(3) IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFF-
APPELLANT AND THE FACTS IN THIS CASE.
{¶ 6} On September 18, 2025, this court ordered the parties to file supplemental briefs
addressing whether the trial court’s April 7, 2025 order was a final order within the meaning
of R.C. 2505.02(B)(6). The parties filed their supplemental briefs. Because the trial court’s
April 7, 2025 order is not a final order under R.C. 2505.02(B)(6), we must dismiss this appeal.
II. The April 7, 2025 Order Is Not a Final Order
{¶ 7} “It is axiomatic that an appellate court has jurisdiction to review only final orders
or judgments of the lower courts in its district.” Onady v. Wright State Physicians, Inc.,
2018-Ohio-3096, ¶ 6 (2d Dist.), citing Ohio Const., art. IV, § 3(B)(2); R.C. 2505.02. “We
have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom
must be dismissed.” Id., citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17,
20 (1989).
{¶ 8} “For a judgment to be final and appealable, it must satisfy the requirements of
R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Id. at ¶ 7, citing Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86, 88 (1989). “Civ.R. 54(B) does not alter the requirement that
an order must be final before it is appealable.” Cooper State Bank v. Columbus Graphics
Comm., 2012-Ohio-3337, ¶ 15 (10th Dist.), citing Gen. Acc. Ins. Co. at 21.
{¶ 9} “As a general rule, the denial of a motion for summary judgment is not a final
appealable order.” Taylor-Jones v. Kettering Med. Ctr., 2021-Ohio-738, ¶ 10 (2d Dist.),
citing State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23 (1966). “This is so because a
denial of summary judgment does not determine the action and prevent a judgment and is
therefore not a final order under R.C. 2505.02.” Id., citing Celebrezze v. Netzley, 51 Ohio 4 St.3d 89, 90 (1990). Indeed, due to the interlocutory nature of a denial of a motion for
summary judgment, parties often may be able to file another summary judgment motion with
the trial court after the first motion is denied. See Moeller v. Estate of Butela, 1987 WL
9867, *1 (8th Dist.) (“Inasmuch as an order denying summary judgment is interlocutory in
nature, it is subject to revision by the trial court at any time prior to the entry of a final
judgment in the case.”), citing Maxey v. Lenigar, 14 Ohio App.3d 458, 459 (10th Dist. 1984).
{¶ 10} There are exceptions to the general rule that a denial of a summary judgment
motion is not final and immediately appealable. R.C. 2505.02(B)(6) provides one of these
exceptions. That section provides, in part, that an order is a final order that may be
reviewed when it is an order “determining the constitutionality of” R.C. 2323.43. Reilly
argues that the trial court’s April 7, 2025 order is a final order pursuant to R.C. 2505.02(B)(6)
because the order determined the constitutionality of R.C. 2323.43. We disagree.
{¶ 11} Reilly asked the trial court to find, as a matter of law, that the cap in
R.C. 2323.43 on damages for a noneconomic loss was unconstitutional as applied to her.
The trial court’s order at issue in this appeal did not determine the constitutionality of the cap
in R.C. 2323.43 on damages for noneconomic loss. Rather, the trial court denied Reilly’s
motion for partial summary judgment on the basis that she failed to put forth sufficient
evidence to carry her initial burden on summary judgment of showing that she suffered a
catastrophic injury and that her noneconomic damages exceeded the $500,000 cap in
R.C. 2323.43. As a result, the trial court concluded that Reilly failed to show, at the
summary judgment stage, that the cap contained in R.C. 2323.43 applied to her. Since
Reilly failed to carry her initial burden of putting forth sufficient summary judgment evidence
to show the cap in R.C. 2323.43 applied to her, the trial court did not analyze whether the
statute was unconstitutional. In short, the trial court’s April 7, 2025 order did not determine
5 the constitutionality of any statute listed in R.C. 2505.02(B)(6). Therefore, the order does
not constitute a final order under R.C. 2505.02(B)(6), and we do not have jurisdiction to
review it.
III. Conclusion
{¶ 12} Having concluded that the trial court’s April 7, 2025 order is not a final order,
we dismiss Reilly’s appeal.
.............
HUFFMAN, J., and HANSEMAN, J., concur.