Kinderdine v. Alleman , 2016 Ohio 5481 ( 2016 )

[Cite as Kinderdine v. Alleman, 2016-Ohio-5481.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
TRACY KINDERDINE, et al. )
)
PLAINTIFF-APPELLANTS )
) CASE NO. 2014 MA 0177
VS. )
) OPINION
BREANNA ALLEMAN ) AND
) JUDGMENT ENTRY
DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Motion for Reconsideration
JUDGMENT: Denied.
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: August 19, 2016
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APPEARANCES:
For Plaintiff-Appellants Attorney W. Craig Bashein
Attorney Anthony N. Palombo
BASHEIN & BASHEIN CO., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Attorney Paul Flowers
PAUL W. FLOWERS CO., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Attorney Thomas J. Wilson
COMSTOCK, SPRINGER & W ILSON CO.,
L.P.A.
100 Federal Plaza East, Suite 926
Youngstown, Ohio 44503-1811
For Defendant-Appellee Attorney Joseph M. Ruscak
ROETZEL & ANDRESS, L.P.A.
222 South Main Street
Akron, Ohio 44308
Attorney Matthew John Markling
Attorney Patrick Vrobel
Attorney Sean Koran
MCGOWN & MARKLING CO., L.P.A.
1894 North Cleveland-Massillon Road
Akron, Ohio 44333
[Cite as Kinderdine v. Alleman, 2016-Ohio-5481.]
PER CURIAM.
{¶1} Tracy Kinderdine, et al., Plaintiff-Appellants, filed a motion for
reconsideration in the appeal of Kinderdine et al., v. Breanna Alleman, 7th Dist. No.
14 MA 0174, 0177, 0180, 0181, 2016-Ohio-4815.
{¶2} "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.
{¶3} 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. Inc., 7th Dist. No. 04 MA 0245, 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. 02 BE 0066, 2005–Ohio–1766, ¶ 16 (internal citation omitted).
Nor is it "a mechanism to raise an entirely new argument and issue to the appellate
court that was not raised in the appellate brief." State v. Wellington, 7th Dist. No. 14
MA 0115, 2015-Ohio-2095, ¶ 9.
{¶4} The Kinderdines allege that this Court failed to apply the correct
standard for reviewing a judgment on the pleadings. We held:
In light of the disposition of our resolution of the Kinderdines'
appeal of the trial court's grant of summary judgment in favor of Callos,
the merits of this appeal are moot. App.R. 12(B). The Kinderdines
asserted in their complaint against Alleman that she was acting within
the scope of her employment. As Alleman was an employee of ESC,
pursuant to the loan servant doctrine, she is immune from liability
pursuant to R.C. 2744.03(A)(5). Further, the Kinderdines have failed to
meet their burden of proof, making conclusory allegations rather than
alleging operative facts demonstrating that Alleman acted in a willful,
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wanton or reckless manner. R.C. 2744.03(A)(6)(b).
Kinderdine, ¶ 34
{¶5} The Kinderdines' arguments regarding Alleman's liability were fully
considered by this Court prior to ruling on the matter. The Kinderdines' motion for
reconsideration does not call to the attention of the court an obvious error, but merely
a disagreement with the decision reached by the Court. Accordingly, the Kinderdines'
motion for reconsideration is denied.
DeGenaro, J., concurs.
Waite, J., concurs.
Robb, J., concurs.