Gentile v. Turkoly

[Cite as Gentile v. Turkoly, 2017-Ohio-2959.]
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 Reconsideration
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. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 15, 2017
[Cite as Gentile v. Turkoly, 2017-Ohio-2959.]
PER CURIAM.
{¶1} Appellant has timely filed a joint application for en banc consideration
and reconsideration of this appeal. Appellee timely opposed the applications.
This opinion will address Appellant’s application for reconsideration. The
application for en banc consideration will be addressed in a separate decision.
{¶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. An application for reconsideration may not be utilized
where a party simply disagrees with the conclusion reached and the logic used by an
appellate court. Victory White Metal Co. v. N.P. Motel Syst., 7th Dist. No. 04MA245,
2005–Ohio–3828, ¶ 2; Hampton v. Ahmed, 7th Dist. No. 02BE66, 2005–Ohio–1766,
¶ 16.
{¶3} Appellant presents two arguments for reconsideration. First, he asks us
to reconsider our holding that a trial court has the authority to sua sponte direct a
verdict. His argument is based on the language of Civ.R. 50(A)(4) and our reliance
on our decision in City of Steubenville v. Schmidt, 7th Dist. No. 01 JE 13, 2002-Ohio-
6894.
{¶4} As to the language of Civ.R. 50(A)(4), Appellant presents the same
arguments in the application for reconsideration that he did in his appellate brief. We
fully considered those arguments and found they lacked merit. Gentile v. Turkoly, 7th
Dist. No. 16 MA 0071, 2017-Ohio-1018, ¶ 16-19.
{¶5} We relied, in part, on City of Steubenville to hold a trial court can sua
sponte direct a verdict under Civ.R. 50. Id. at ¶ 18. We cited City of Steubenville,
restated its holding, cited to our sister districts holding the same proposition, and
once again held a trial court has authority to sua sponte direct a verdict. Id. We
acknowledge City of Steubenville involved a bench trial. Appellant contends in a
bench trial a trial court is not supposed to employ Civ.R. 50, rather it is to use Civ.R.
-2-
41(B). Therefore, Appellant argues reliance on City of Steubenville is misplaced
because the issue raised to us in that case was improperly framed.
{¶6} The Tenth Appellate District has held Civ.R. 50(A)(4), the rule for
directed verdicts is inapplicable to nonjury trials and the appropriate rule to use for
nonjury trials is Civ.R. 41(B). Jarupan v. Hanna, 173 Ohio App. 3d 284, 2007-Ohio-
5081, 878 N.E.2d 66, ¶ 7 (10th Dist.). On the basis of that decision, Appellant is
correct; the issue raised in City of Steubenville was improperly framed. However,
that does not render our affirmance of the trial court’s decision in City of Steubenville
incorrect. “There is no prejudice if a trial court erroneously applies the Civ.R. 50(A)
standard for directed verdict instead of the standard for involuntary dismissal under
Civ.R. 41(B)(2) because the directed verdict standard is much more rigorous than the
involuntary dismissal standard. * * * Satisfaction of the Civ.R. 50(A) standard implies
satisfaction of the Civ.R. 41(B)(2) standard.” In re C.C.S., 10th Dist. No. 14AP-739,
2016-Ohio-388, ¶ 33.
{¶7} Likewise, it does not render our holding that a trial court can sua sponte
direct a verdict incorrect. We did not solely rely on City of Steubenville to reach our
conclusion; we also relied on numerous decisions from other districts holding a trial
court can sua sponte direct verdict. Gentile, 2017-Ohio-1018 at ¶ 18. Furthermore,
Appellant admits all of the appellate districts asked to determine whether a trial court
has the authority to sua sponte direct a verdict have found the trial court is permitted
to direct a verdict sua sponte.
{¶8} Consequently, as to the issue of whether a trial court can sua sponte
direct a verdict, the issue was fully considered and Appellant has not directed us to
an obvious error. Rather, he merely disagrees with the conclusions we reached.
{¶9} The second basis for the application for reconsideration is we failed to
consider the distinction between tortious interference with a business relationship and
tortious interference with a contractual relationship. He contends we failed to
consider or placed little consideration on the Ginn v. Stonecreek Dental Care, 12th
Dist. No. CA2014-06-015, 2015-Ohio-1600, decision. Ginn held the main distinction
between tortious interference with a contractual relationship and tortious interference
-3-
with a business relationship is the later includes intentional interference with a
prospective contractual relation that has not yet been reduced to a contract. Id.
Appellant contends he set forth the elements enough to survive summary judgment.
{¶10} Although Ginn is not cited in our opinion, we set forth and explained the
differences between tortious interference with a business relationship and tortious
interference with a contractual relationship. Gentile, 2017-Ohio-1018 at ¶ 24. We
stated, “Tortious interference with a business relationship does not require the breach
of contract, rather it is sufficient to prove that a third party does not enter into * * * a
business relationship with the plaintiff.” Id. This is synonymous to what was held in
Ginn.
{¶11} Furthermore, we explained Appellant offered no evidence Appellee’s
act of writing a review on a website prevented third parties from entering into
business with him. Id. at ¶ 31. Regardless, as explained in the opinion, even if
Appellant had presented sufficient evidence of interference with a prospective
business relation, he did not present sufficient evidence of the element of actual
malice, which was required. Id. at ¶ 24, 35.
{¶12} Appellant’s second basis for reconsideration lacks merit. His
arguments do not call this court’s attention to an obvious error or something we failed
to fully consider. Rather, he merely disagrees with the conclusions we reached.
{¶13} The application for reconsideration is denied.
Robb, P.J. concurs.
Waite, J., concurs.
DeGenaro, J., concurs.