Peters v. Tipton

[Cite as Peters v. Tipton, 2015-Ohio-3307.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THOMAS D. PETERS )
)
PLAINTIFF-APPELLANT )
)
VS. ) CASE NO. 13 HA 10
)
PAMELA M. TIPTON, et al. ) OPINION
) AND
DEFENDANTS-APPELLEES ) JUDGMENT ENTRY
CHARACTER OF PROCEEDINGS: Application for Reconsideration
JUDGMENT: Denied
APPEARANCES:
For Appellant Robert W. Kerpsack
Robert W. Kerpsack Co., LPA
655 Metro Place South, Suite 255
Columbus, Ohio 43017-5389
For Appellee Westchester Fire Pamela K. Ginsburg
Insurance Co. Ulmer & Berne, LLP
600 Vine Street, Suite 2800
Cincinnati, Ohio 45202-2409
For Appellee Great American Edward M. Ryder
Insurance Company David K. Frank
Mazanec, Raskin & Ryder Co, L.P.A.
175 South Third Street, Suite 1000
Columbus, Ohio 43215
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: August 11, 2015
[Cite as Peters v. Tipton, 2015-Ohio-3307.]
PER CURIAM.
{¶1} Appellant Thomas D. Peters has filed a second application for
reconsideration pursuant to App.R. 26(A)(1), this time requesting that we reconsider
our July 15, 2015 judgment entry dismissing as untimely his first application for
reconsideration and motion to certify a conflict directed to our merit determination.
Appellees Great American Insurance Company and Westchester Insurance
Company have opposed this latest post-appeal motion.
{¶2} Our merit determination in Peters v. Tipton, 7th Dist. No. 13HA10,
2015-Ohio-2323 was filed with the Harrison County Clerk of Courts Friday, June 12,
2015; the clerk mailed the opinion to the parties and noted service by mail on the
docket on that date as well. Peters filed his first application for reconsideration and
motion to certify a conflict on June 25, 2015. In an unreported judgment entry dated
July 15, 2015 we dismissed both the application and motion as untimely; the 10 days
provided by the Appellate Rules ran on Monday, June 22, 2015, and Peters' filing
was three days late on Thursday, June 25, 2015.
{¶3} A reconsideration application must call to the attention of the appellate
court an obvious error in its decision or point to an issue that was raised to the court
but was inadvertently either not considered at all or not fully considered. Juhasz v.
Costanzo, 7th Dist. No. 99–C.A.–294, 2002 WL 206417, (Feb. 1, 2002). 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.
{¶4} Peters asserts that we erroneously determined his application for
reconsideration and motion to certify a conflict was untimely. In making that
determination we relied upon App.R. 26(A)(1)(a) and 25(A), which govern
applications for reconsideration and motions to certify a conflict respectively, both of
which provide that both post-appeal pleadings can be filed no later than ten days
after the clerk has both mailed the parties the judgment and made a note on the
docket of the mailing.
{¶5} Peters relies upon State v. Weaver, 7th Dist. No. 12BE21, 2013-Ohio-
-2-
898; he argues the panel there held that because Weaver was served with the
original decision by mail, pursuant to App.R. 14(C) he had an additional three days
added to the time within which to file post-appeal motions, specifically 13 days to file
an application for reconsideration. Id. at ¶15. Thus, Peters asserts that his June 25
application was timely pursuant to Weaver, having been filed 13 days after our
opinion in this case was released. His analysis fails for several reasons.
{¶6} First, the language relied upon by Peters in Weaver was dictum, which
is ill-advised to include in an opinion because it is not controlling and can create
confusion, as the instant appeal readily demonstrates. Obiter dictum, dictum and
dicta are interchangeable terms defined by the Ohio Supreme Court as " 'an
incidental and collateral opinion uttered by a judge, and therefore (as not material to
his decision or judgment) not binding.' " State ex rel. Gordon v. Barthalow, 150 Ohio
St. 499, 505–506, 83 N.E.2d 393 (1948), quoting Webster's New International
Dictionary (2d Ed.). Stated differently, dicta or dictum is an observation or statement
in an opinion by the writing judge—which may or may not be joined by the majority of
the panel—which is unnecessary to resolution of the issues in the case and therefore
lacks precedential value. Black's Law Dictionary 1102 (8th Ed.2004) ("a judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential."); see also Duck v. Cantoni, 4th
Dist. No. 11CA20, 2012-Ohio-351, ¶ 25.
{¶7} Secondly, the dictum in Weaver is an anomaly from the case law in this
district relative to the strict time constraints governing reconsideration applications
and conflict certification motions. See, e.g., State v. Wellington, 7th Dist. 14 MA 115,
2015-Ohio-2095, ¶4 (application for reconsideration untimely when not filed within ten
days of entry on the docket); State v. McClendon, 7th Dist. No. 11 MA 15, 2013-Ohio-
5881, ¶2, (application for reconsideration untimely when filed 11 days after clerk
mailed the parties the judgment); Rutushin v. Arditi, 7th Dist. No. 12 MA 114, 2013-
Ohio-2167, ¶2 ("An application for reconsideration of an appellate decision can be
filed no later than ten days after the clerk has both mailed the parties the judgment
and made a note on the docket of the mailing.") Scott v. Falcon Transport Co., 7th
-3-
Dist. No. 02 CA 145, 2004-Ohio-389, ¶2 (finding a request for reconsideration was
untimely because it was "filed more than ten days after our opinion was filed"); State
v. Hess, 7th Dist. No. 02 JE 36, 2004-Ohio-1197, ¶4 (refusing to address an
application for reconsideration not filed within ten days after the announcement of the
court's decision). See also State v. Jones, 181 Ohio App. 3d 435, 2009-Ohio-1500,
909 N.E.2d 191, ¶2, (7th Dist.) fn. 2 ("We also note that App.R. 25(A) provides only
ten days to file a motion to certify, and App.R. 25(B) provides a party 'opposing the
motion' ten days to respond. Where the state's response seems to be seeking
certification rather than opposing the defendant's motion, the state's response is
actually an untimely motion to certify when it is filed more than ten days after the
entry of our judgment."); State v. Yeager, 7th Dist. No. 03CA786, 2004-Ohio-4406,
¶1 (motion to certify conflict untimely where appellant failed to file motion within the
10-day time limit set forth in App.R. 25(A)).
{¶8} Finally, in a recent unpublished judgment entry, this court expressly
overruled Weaver, restoring consistency to the Seventh District's jurisprudence
relative to calculating the time within which to calculate the timely filing of post-appeal
motions:
Appellant suggests that the time for filing his application for reconsideration
was extended by App.R. 14(C), which states: "Whenever a party has the right
or is required to do some act or take some proceedings within a prescribed
period after service of a notice or other document upon that party and the
notice or paper is served upon the party by mail or commercial carrier under
App.R. 13(C)(4), three days shall be added to the prescribed period." Courts
have generally held that App.R. 14(C) does not apply to applications for
reconsideration because the event that triggers the 10-day time period for
filing the application is not "service of a notice." The time period begins to run
"after the clerk has both mailed to the parties the judgment or order in question
and made a note on the docket of the mailing as required by App.R. 30(A)."
App.R. 26(A)(1)(a). "Since our decisions do not require a response or require
service upon a party in which he must respond, it appears that the three-day
-4-
rule does not apply to motions for reconsideration." Dever v. Dever, 12th Dist.
No. CA-98-07-050, 1999 WL 527843, at *1; see also, State v. Boone, 114
Ohio App. 3d 275, 277, 683 N.E.2d 67 (7th Dist.1996). To the extent we may
have implied that App.R. 14(C) does apply to extend the time to file an
application for reconsideration in State v. Weaver, 7th Dist. No. 12 BE 21,
2013-Ohio-898, we now overrule this reasoning. The three-day mail rule found
in App.R. 14(C) does not apply to extend the 10-day time limit for filing an
application for reconsideration.
State v. Gilmore, 7th Dist. No. 11MA30 (Jan. 21, 2015) (unpublished judgment entry.)
{¶9} Consistent with our precedent regarding the time allotted by App.R. 25
and 26 to file post-appeal motions, the Gilmore panel reversed Weaver. The three-
day mail rule in App.R. 14(C) remains inapplicable to applications for reconsideration
and motions to certify a conflict.
{¶10} In sum, Peters' second application for reconsideration fails to call to
attention an obvious legal error in our judgment, or an issue that was raised but not
fully considered in our judgment dismissing his first application for reconsideration
and motion to certify a conflict as untimely. Accordingly, his application for
reconsideration is denied.
DeGenaro, J., concurs
Waite, J., concurs
Robb, J., concurs