Martin v. Lake Mohawk Property Owner's Assn., Inc. ( 2011 )

[Cite as Martin v. Lake Mohawk Property Owner’s Assn., Inc., 2011-Ohio-6538.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
EMERY MARTIN, et al. ) CASE NO. 10 CA 869
)
PLAINTIFFS-APPELLANTS )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
LAKE MOHAWK PROPERTIES )
OWNER’S ASSOCIATION, INC., et al. )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Appellants’ Joint Application for
Reconsideration and En Banc
Consideration
Case No. 04-CVH-23875
JUDGMENT: Denied.
APPEARANCES:
For Plaintiffs-Appellants: Atty. Bruce H. Wilson
789 West Market Street
Akron, Ohio 44303
For Defendants-Appellees, Atty. John F. Hersch
Robert and Nancy Mizerik: UAW-Ford Legal Services Plan
8536 Crow Drive, Suite 110
Macedonia, Ohio 44056
For Defendants-Appellees, Atty. Brian R. Mertes
Lake Mohawk Property Owner’s Assoc.: Black, McCuskey, Souers & Arbaugh
220 Market Ave., South, Suite 1000
Canton, Ohio 44702
JUDGES:
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Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 16, 2011
PER CURIAM.
{¶ 1} Appellants have filed an application for en banc consideration of this
appeal under App.R. 26(A)(2) combined with an application for reconsideration of our
Opinion pursuant to App.R. 26(A)(1). We will first deal with the application for en
banc consideration. Under App.R. 26(A)(2)(a), if a majority of the court of appeals
judges in an appellate district determine that two or more decisions of the court on
which they sit are in conflict, the court “may order that an appeal or other proceeding
be considered en banc.” Under App.R. 26(A)(2)(b), the appellant must explain how
the panel’s decision conflicts with a prior panel’s decision on a dispositive issue.
Appellants have not cited a conflict between our Opinion in this matter and another
opinion of this Court. The cases cited by Appellant uniformly hold that the trial court
has discretion in determining how the costs of an action shall be assessed. Appellant
cites Wells v. Hoppel (Jan. 30, 2001), 7th Dist. No. 99-CO-59, in support, but that
case did not deal with reimbursement of the costs of transcripts, which was the issue
in this appeal. Further, in Wells we held that “a trial court has discretion in
determining how costs of an action shall be assessed,” which is virtually identical to
our holding in the instant appeal. Id. at *2.. The other case from this appellate
district cited by Appellants is First Natl. Bank of Dillonvale v. Progressive Cas. Ins.
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Co. (1993), 94 Ohio App.3d 370, 640 N.E.2d 1147, but this case was overruled in
Bush v. W.C. Cardinal Co., 7th Dist. Nos. 02 539 CA, 02 HA 546, 2003-Ohio-5443,
and is no longer controlling law. Without a demonstration of the existence of an
actual intradistrict conflict, the matter raised by Appellants is not appropriate for en
banc consideration. Stanley Miller Constr. Co. v. Ohio School Facilities Comm., 192
Ohio App.3d 676, 2011-Ohio-909, 950 N.E.2d 218. The application for en banc
consideration is denied.
{¶ 2} Next, we turn to an examination of the application for reconsideration.
“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 (1987), 37 Ohio App.3d 68, 523 N.E.2d 515, paragraph one of the syllabus.
“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 66, 2005-Ohio-1766, ¶16, citing State v. Owens (1996), 112 Ohio App.3d 334,
336, 678 N.E.2d 956.
{¶ 3} The issue under review in this appeal was whether Appellants’ motion
to tax costs was made in a reasonably timely manner. Appellants continue to argue
that the request for costs for transcripts was filed in a reasonable period of time. We
disagreed with that argument. Mere disagreement with the result of the appeal is not
a basis for reconsideration. Appellants also argue that the trial court did not have
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discretion to make such a determination based on the analysis for taxing costs found
in Jones v. Pierson (1981), 2 Ohio App.3d 447, 442 N.E.2d 791, a case from the
Eighth District Court of Appeals. The Eighth District overruled Jones v. Pierson in
Naples v. Kinczel, 8th Dist. No. 89138, 2007-Ohio-4851. The Eighth District now
applies the holding in Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 597
N.E.2d 153, which is the case we relied on in our Opinion. Vance held that: “Our
interpretation of Civ.R. 54(D) is that the phrase ‘unless the court otherwise directs’
grants the court discretion to order that the prevailing party bear all or part of his or
her own costs.” Id. at 555. We rely on Ohio Supreme Court caselaw rather than
appellate caselaw if possible, and we certainly question the value of appellate
caselaw that has been rejected by later decisions from that same court. The trial
court used its discretion in determining that Appellants should bear the costs of
certain transcripts because the request for costs was not made in a timely manner,
and we affirmed this decision. The arguments that Appellants raise in this application
for reconsideration are simply variations of the arguments raised on appeal, and we
have already rejected those arguments. The application for reconsideration is
denied. Costs taxed to Appellants.
Waite, P.J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.