Gentile v. Turkoly , 2017 Ohio 2958 ( 2017 )

[Cite as Gentile v. Turkoly, 2017-Ohio-2958.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RICHARD D. GENTILE, M.D, ) CASE NO. 16 MA 0071
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
KELLY TURKOLY, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Application for En Banc Consideration
JUDGMENT: Denied.
APPEARANCES:
For Plaintiff-Appellant: Atty. Christopher P. Lacich
Roth, Blair, Roberts, Strasfeld & Lodge,
L.P.A.
100 East Federal Street, Suite 600
Youngstown, Ohio 44503
For Defendant-Appellee: Atty. Christopher J. Regan
Atty. J. Zachary Zatezalo
Bordas & Bordas, LLC
1358 National Road
Wheeling, WV 26003
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 15, 2017
[Cite as Gentile v. Turkoly, 2017-Ohio-2958.]
PER CURIAM.
{¶1} Appellant has timely filed a joint application for en banc reconsideration
and reconsideration of this appeal. Appellee timely opposed the applications. The
application for en banc reconsideration will be addressed in this judgment. The
application for reconsideration will be addressed in a separate opinion.
{¶2} En banc reconsideration is governed by App.R. 26(A)(2). Under the
rule, the appellate court may order an appeal to be considered en banc if the majority
of the court of appeals judges in the appellate district determine “two or more
decisions of the court on which they sit are in conflict.” App.R. 26(A)(2)(a).
Intradistrict conflicts sometimes arise; they occur when different panels of judges
hear the same issue, but reach different results. McFadden v. Cleveland State Univ.,
120 Ohio St. 3d 54, 2008–Ohio–4914, 896 N.E.2d 672, ¶ 15. Appellant is required to
explain how the panel’s decision conflicts with a prior panel’s decision on a
dispositive issue. App.R. 25(A)(2)(b).
{¶3} In arguing for en banc reconsideration, Appellant cites City of
Steubenville v. Schmidt, 7th Dist. No. 01 JE 13, 2002-Ohio-6894. In City of
Steubenville, we held a trial court has authority to sua sponte direct a verdict. Id. at ¶
31. We cited City of Steubenville in this appeal, restated its holding, and once again
held a trial court has authority to sua sponte direct a verdict. Gentile v. Turkoly, 7th
Dist. No. 16 MA 0071, 2017-Ohio-1018, ¶ 18.
{¶4} The purpose of en banc proceedings is to resolve conflicts of law that
arise within a district. App.R. 26(A)(2)(a); McFadden at ¶ 10, 15–16. Our holding in
this appeal is not in conflict with City of Steubenville; in both cases we held a trial
court has the authority to sua sponte direct a verdict. Admittedly, in City of
Steubenville it was a bench trial, while here it was a jury trial. However, that
distinction does not render the dispositive holdings in the cases in conflict. Thus,
there is no basis for en banc reconsideration.
{¶5} Application for en banc reconsideration is denied.
-2-
Robb, P.J. concurs.
Donofrio, J., concurs.
Waite, J., concurs.
DeGenaro, J., concurs.