Linker v. Xpress Fuel Mart ( 2019 )

[Cite as Linker v. Xpress Fuel Mart, 2019-Ohio-498.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
PAT LINKER,
Plaintiff-Appellant,
v.
XPRESS FUEL MART, INC., et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 17 MA 0172
Appellee’s Application for Reconsideration
BEFORE:
Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.
JUDGMENT:
Overruled.
Atty. Gregg A. Rossi, Rossi & Rossi, 26 Market Street, 8th Floor, Huntington Bank
Building, P.O. Box 6045, Youngstown, Ohio 44501, for Plaintiff-Appellant.
Atty. John W. Becker and
Atty. John M. Heffernan, Harpst Ross Becker Co., LLC, 1559 Corporate Woods
Parkway, Suite 250, Uniontown, Ohio 44685 address, for Defendants-Appellees.
Dated: February 1, 2019
PER CURIAM.
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{¶1} On January 7, 2019, Appellee Xpress Fuel Mart, Inc. filed an application
for reconsideration of our December 20, 2018 decision in Linker v. Xpress Fuel Mart,
Inc., 7th Dist. No. 17 MA 0172, 2018-Ohio-5404. On January 11, 2019 Appellant Pat
Linker filed a brief in opposition to the application.
{¶2} Appellant appealed a November 1, 2017 decision of the Mahoning County
Common Pleas Court granting Appellee summary judgment on Appellant’s negligence
claim. Appellant was injured after he slipped and fell in Appellee’s store. On appeal,
we affirmed the decision in part, reversed in part and remanded, concluding that
summary judgment was precluded where a genuine issue of material fact existed
regarding the proximate cause of Appellant’s fall and subsequent injuries. Id. at ¶ 19.
{¶3} Appellee contends that no genuine issue of material fact exists and that
summary judgment was warranted. Appellee claims that Appellant failed to meet his
burden by failing to present any evidence that an unreasonably dangerous latent
condition existed and that Appellee created such a condition. Appellee also states that
the presence of water on Appellee’s floor was an open and obvious condition which
precludes Appellant’s negligence claim.
{¶4} App.R. 26, which provides for the filing of an application for
reconsideration in this Court, includes no guidelines to be used in the determination of
whether a decision is to be reconsidered. Deutsche Bank Natl. Tr. Co. v. Knox, 7th
Dist. No. 09-BE-4, 2011-Ohio-421, ¶ 2, citing Matthews v. Matthews, 5 Ohio App. 3d
140, 143, 450 N.E.2d 278 (10th Dist.1981). The test generally applied is whether the
motion for reconsideration calls to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was either not considered or not
fully considered in the direct appeal. Deutsche Bank at ¶ 2.
Case No. 17 MA 0172
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{¶5} An application for reconsideration is not designed for use in instances
where a party simply disagrees with the conclusions reached, and the logic used, by an
appellate court. Id., citing State v. Owens, 112 Ohio App. 3d 334, 336, 678 N.E.2d 956
(11th Dist.1996). Instead, App.R. 26 provides a mechanism by which a party may
prevent a miscarriage of justice that could arise when an appellate court makes an
obvious error or renders an unsupportable decision under the law. Id.
{¶6} We conducted a de novo review of the trial court’s decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (1) no genuine
issue as to any material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the
party against whom the motion for summary judgment is made, the conclusion is
adverse to that party. Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d
267 (1977). Whether a fact is “material” depends on the substantive law of the claim
being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App. 3d 598, 603, 662
N.E.2d 1088 (8th Dist.1995).
{¶7} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St. 3d 280,
296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party
has a reciprocal burden of setting forth specific facts showing that there is a genuine
Case No. 17 MA 0172
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issue for trial. Id. at 293. In other words, when presented with a properly supported
motion for summary judgment, the nonmoving party must produce some evidence to
suggest that a reasonable factfinder could rule in that party’s favor. Brewer v.
Cleveland Bd. of Edn., 122 Ohio App. 3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶8} After review of this record we concluded that, although there was very little
evidence presented, both sides introduced conflicting evidence regarding the cause of
Appellant’s fall. Appellant testified during his deposition that it had not been snowing
that day and that Appellee’s employee mopped the floor, making it wet, and that she
negligently failed to provide proper warning which led to his fall. Appellee’s employee
testified during her deposition that she mopped the floor within fifteen minutes of
Appellant’s fall because the floor was dirty and could have been wet from water tracked
in from outside, but that it was drying when Appellant entered. We concluded that the
trial court’s decision to grant summary judgment was improper where the record
contained conflicting testimony as to the cause of Appellant’s fall and that testimony
supported both sides’ positions. As a consequence, there is no obvious error in our
prior decision. Appellee simply disagrees with our logic and conclusions. Accordingly,
Appellee’s application is overruled.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE KATHLEEN BARTLETT
Case No. 17 MA 0172
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NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 17 MA 0172