Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities

[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-5480.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
TRACY KINDERDINE, et al. )
)
PLAINTIFF-APPELLEES )
) CASE NO. 2014 MA 0174
VS. )
) OPINION
MAHONING COUNTY BOARD OF ) AND
DEVELOPMENTAL DISABILITIES, et al. ) JUDGMENT ENTRY
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Motion for Panel Reconsideration and
En Banc Reconsideration
JUDGMENT: Denied.
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: August 19, 2016
-2-
APPEARANCES:
For Plaintiff-Appellees Attorney W. Craig Bashein
Attorney Anthony N. Palombo
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Attorney Paul Flowers
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Attorney Thomas J. Wilson
100 Federal Plaza East, Suite 926
Youngstown, Ohio 44503-1811
For Defendants-Appellants Attorney Todd M. Raskin
Attorney Carl E. Cormany
Attorney Frank H. Scialdone
100 Franklin's Row
34305 Solon Road
Cleveland, Ohio 44139
[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-5480.]
PER CURIAM.
{¶1} Tracy Kinderdine, et al., Plaintiff-Appellees, filed a motion for
reconsideration and reconsideration en banc in the appeal of Kinderdine et al., v.
Mahoning County Educational Service Center, 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} In support of reconsideration, the Kinderdines argue that because it
was omitted from the opinion, this Court failed to consider "startling testimony" that
was favorable to them. This Court fully considered the entire trial record when
deciding this appeal. The Kinderdines do not call to our attention an obvious error,
but merely proffer a disagreement with the format of the opinion and decision
reached by the Court.
{¶5} The Kinderdines have also requested en banc consideration of this
appeal. 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
-2-
en banc.” The Kinderdines must "explain how the panel's decision conflicts with a
prior panel's decision on a dispositive issue." Martin v. Lake Mohawk Property
Owner's Assn., Inc., 7th Dist. No. 10 CA 869, 2011-Ohio-6538, ¶ 1. "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)
{¶6} In support of en banc consideration the Kinderdines argue that this
panel applied a heightened causation standard which deviates from the approach
taken in two earlier decisions from this District: Roberts v. Switzerland of Ohio Loc.
Sch. Dist., 2014-Ohio-78, 7 N.E.3d 526 (7th Dist.) and DeMartino v. Poland Local
School Dist., 7th Dist. 10 MA 19, 2011-Ohio-1466. MCESC argues that there is no
intra-district conflict regarding causation.
{¶7} App.R. 26(A)(2) requires a panel's decision to be made on a
"dispositive issue." In the present matter, this Court did not find an exception to
immunity under R.C. 2744.02(B)(4) that employed a causation analysis which the
Kinderdines challenge herein. However, we continued, "even if we were to conclude
the exception found in R.C. 2744.02(B)(4) was present, immunity would be restored"
under R.C. 2744.03(A)(5). Kinderdine, supra, ¶ 23. As the present case does not
conflict with Roberts and DeMartino on a dispositive issue, en banc consideration is
not appropriate.
{¶8} The Kinderdines' arguments regarding MCBDD's liability and immunity
were fully considered by this Court prior to ruling on the matter. The motion for
reconsideration does not call to the attention of this Court an obvious error. Further,
the Kinderdines are not entitled to reconsideration en banc as they do not present a
-3-
challenge to a dispositive issue. Accordingly, the Kinderdines' motion for
reconsideration is denied.
DeGenaro, J., concurs.
Waite, J., concurs.
Robb, J., concurs.