In re I.T.A. , 2012 Ohio 2438 ( 2012 )

[Cite as In re I.T.A., 2012-Ohio-2438.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE: GUARDIANSHIPS OF: ) CASE NOS. 11 BE 27
) 11 BE 29
I.T.A. )
)
AND ) OPINION AND
) JUDGMENT ENTRY
A.A. )
)
)
)
CHARACTER OF PROCEEDINGS: Motion to Certify Conflict;
Motion for En Banc Consideration;
Motion for Reconsideration.
JUDGMENT: Overruled.
APPEARANCES:
For Appellant: Nawaz Ahmed, Pro se
#A404-511
Chillicothe Correctional Institution
15802 State Route 104, North
Chillicothe, OH 45601
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: May 29, 2012
[Cite as In re I.T.A., 2012-Ohio-2438.]
PER CURIAM.
{¶1} Appellant Nawaz Ahmed has filed three post-decision motions in the
appeal of In re I.T.A. and In re A.A. He has filed a motion to certify a conflict, a
motion for reconsideration, and a motion for en banc consideration. For the following
reasons all three motions are overruled.
{¶2} As a preliminary matter, Appellant is once again using his court filings
as a means to engage in personal attacks. We have repeatedly warned Appellant
about this behavior. In re I.T.A., 7th Dist. Nos. 11 BE 27, 11 BE 29, 2012-Ohio-1689,
¶11; In re Guardianship of Ahmed, 7th Dist. No. 02 BE 56, 2003-Ohio-5463, ¶9. We
once again strike all personal attacks from the record. Because these improper
comments permeate all three motions, it is difficult to find any true substance in the
motions. We will attempt to respond to these as far as possible utilizing the basic law
governing each motion.
{¶3} First, we address Appellant’s motion to certify a conflict. Under App.R.
25(A), a party can file a motion to certify a conflict within ten days of the appellate
court's decision. Section 3(B)(4), Article IV of the Ohio Constitution gives the judges
of a court of appeals the power to certify the record of a case to the Supreme Court
of Ohio “[w]henever * * * a judgment upon which they have agreed is in conflict with a
judgment pronounced upon the same question by any other court of appeals.”
Before certifying a case to the Supreme Court of Ohio, an appellate court must
satisfy three conditions: (1) the court must find that the asserted conflict is upon the
same question; (2) the alleged conflict must be on a rule of law rather than on facts;
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(3) in its journal entry or opinion, the court must clearly set forth the rule of law that it
contends is in conflict with the judgment on the same question by another district
court of appeals. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613
N.E.2d 1032 (1993).
{¶4} Appellant cites two Ohio Supreme Court cases that he alleges are in
conflict with our Opinion. However, “App.R. 25 only authorizes the certification of a
conflict between the opinions of two or more courts of appeals, and not between a
court of appeals and the Ohio Supreme Court.” State v. Yeager, 7th Dist. No.
03CA786, 2004-Ohio-4406, ¶2. We cannot certify a conflict between our Opinion
and that of the Ohio Supreme Court. Appellant also cites five cases from other
appellate districts that he appears to assume, without explanation, conflict with our
Opinion. Merely providing a court of appeals with case citations does not establish a
conflict pursuant to App.R. 25 and does not satisfy the requirements of Whitelock,
supra. Because Appellant has not referenced any specific conflict in any of the five
cases, much less that the matters conflict on the same question or that the question
is one of law rather than fact, we overrule Appellant’s motion to certify a conflict.
{¶5} We now turn to Appellant’s motion for reconsideration under App.R.
26(A)(1). “The test generally applied upon the filing of a motion for reconsideration in
the court of appeals is whether the motion calls to the attention of the court an
obvious error in its decision, or raises an issue for consideration that was either not
considered at all or was not fully considered by the court when it should have been.”
Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (1987), paragraph one of
the syllabus. In other words, a motion for reconsideration must call to the attention of
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the appellate court an obvious error in its decision or point to an issue that had been
raised but was inadvertently not considered. Juhasz v. Costanzo, 7th Dist. No.
99CA294, 2002 WL 206417 (Feb. 7, 2002). The purpose of reconsideration is not to
reargue one's appeal based on dissatisfaction with the logic used and conclusions
reached by an appellate court. Victory White Metal Co. v. N.P. Motel Syst., 7th Dist.
No. 04MA245, 2005-Ohio-3828, ¶2. “An application for reconsideration may not be
filed simply on the basis that a party disagrees with the prior appellate court
decision.” Hampton v. Ahmed, 7th Dist. No. 02BE66, 2005-Ohio-1766, ¶16.
{¶6} In our underlying Opinion, here, we attempted to address, in some
reasonable fashion, arguments that were “rambling, repetitive, difficult to decipher,
and at times incoherent.” In re I.T.A., supra, 7th Dist. Nos. 11 BE 27, 11 BE 29,
2012-Ohio-1689, at ¶10 (decided March 26, 2012). Appellant's arguments in favor of
reconsideration are no different. Appellant does not acknowledge the record before
us, nor that he even raised many of the arguments that appeared in his appellate
briefs. Even though Appellant's briefs did not conform to the Rules of Appellate
Procedure, out of courtesy we addressed the relevant issues we were able to glean
from those briefs. The primary issue underlying many of Appellant's arguments was
his assertion that he should have received notice of the successor guardian's
appointment. We concluded that he was not entitled to notice. Id. at ¶18. He also
disagreed with our conclusion that he was not entitled to notice of the events, orders
and judgments in the guardianship after the guardian was appointed. Id. at ¶20.
Almost all of his remaining issues were moot once we decided these two matters.
For example, his argument that we should have allowed him to file and prosecute
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untimely appeals of dozens of court orders because he did not receive notice of the
orders is clearly moot if he was not entitled to notice in the first place. We will not
review on reconsideration issues that did not merit review in the initial appeal.
{¶7} We note that, Appellant does raise a jurisdictional matter, here.
Appellant argues that we should have vacated the two probate court judgment
entries issued on August 19, 2011. Appellant contends that the trial court lacked
jurisdiction to issue judgments on August 19, 2011 once he filed his appeals on July
19th and August 15th. A trial court generally loses jurisdiction to make further rulings
after an appeal is filed if those rulings are inconsistent with the jurisdiction of the court
of appeals. Yee v. Erie County Sheriff's Dept., 51 Ohio St.3d 43, 553 N.E.2d 1354(1990). In this case, though, Appellant's initial appeals did not reference any final
appealable orders and would have been dismissed except for the fact that he
subsequently filed amended notices of appeal. Those amended notices of appeal
allowed us to review the August 19, 2011 judgment entries. Since those entries
contained the only final appealable orders in this case and they were issued prior to
the filing of the amended notice of appeal, the matters contained within those
judgment entries could not be inconsistent with our jurisdiction which had not yet
been properly invoked. Hence, we had no reason on which to base a decision to
vacate the August 19th entries.
{¶8} We interpret Appellant's arguments in support of reconsideration as
nothing more than an expression of his disagreement with our Opinion, and we
cannot grant reconsideration on that basis. The motion for reconsideration is
overruled.
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{¶9} Appellant’s third motion is a motion for en banc consideration under
App.R. 26(A)(2), which states: “Consideration en banc is not favored and will not be
ordered unless necessary to secure or maintain uniformity of decisions within the
district on an issue that is dispositive in the case in which the application is filed.”
App.R. 26(A)(2)(a). The application for en banc consideration must “explain how the
panel’s decision conflicts with a prior panel’s decision on a dispositive issue and why
consideration by the court en banc is necessary to secure and maintain uniformity of
the court’s decisions.” App.R. 26(A)(2)(b). Appellant has not raised any conflict with
a prior panel of this Court on any dispositive issue on appeal, nor has he explained
why en banc consideration is necessary. Therefore, the motion for en banc
consideration is denied.
{¶10} Having found no meritorious arguments, we hereby overrule Appellant's
motion to certify a conflict, motion for reconsideration, and motion for en banc
consideration.
Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.