Deutsche Bank Natl. Trust Co. v. Knox

[Cite as Deutsche Bank Natl. Trust Co. v. Knox, 2011-Ohio-421.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DEUTSCHE BANK NATIONAL TRUST )
CO., )
) CASE NO. 09-BE-4
PLAINTIFF-APPELLEE, )
) OPINION
VS. )
)
KENNETH KNOX, ET AL., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Application for Reconsideration
JUDGMENT: Granted
Opinion and Judgment Entry of July 9,
2010 vacated.
Judgment affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney Matthew G. Burg
Lakeside Place, Suite 200
323 W. Lakeside Avenue
Cleveland, Ohio 44113
For Defendant-Appellant Attorney Thomas M. Ryncarz
3713 Central Avenue
Shadyside, Ohio 43947
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: January 24, 2011
[Cite as Deutsche Bank Natl. Trust Co. v. Knox, 2011-Ohio-421.]
DONOFRIO, J.:
{¶1} Plaintiff-appellee, Deutsche Bank National Trust Company, has filed a
motion pursuant to App.R. 26 asking this court to reconsider our decision and
judgment entry in which we reversed and remanded the decision of the Belmont
County Common Pleas Court. See Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist.
No. 09-BE-4, 2010-Ohio-3277.
{¶2} App.R. 26, which provides for the filing of an application for
reconsideration in this court, includes no guidelines to be used in the determination of
whether a decision is to be reconsidered. Matthews v. Matthews (1981), 5 Ohio
App.3d 140, 143. The test generally applied is whether the motion for
reconsideration calls to the attention of the court an obvious error in its decision or
raises an issue for our consideration that was either not at all or was not fully
considered by us when it should have been. Id. An application for reconsideration is
not designed for use in instances where a party simply disagrees with the
conclusions reached and the logic used by an appellate court. State v. Owens
(1996), 112 Ohio App.3d 334, 336. Rather, App.R. 26 provides a mechanism by
which a party may prevent miscarriages of justice that could arise when an appellate
court makes an obvious error or renders an unsupportable decision under the law.
Id.{¶3} Initially, we must address the timeliness of appellee’s motion. App.R.
26 sets a ten-day time limit for filing such a motion. App.R. 26(A). This Court’s
decision was filed by the Court with the clerk and announced on July 9, 2010. Thus,
appellee should have filed its motion by Monday July 19, 2010. Appellee did not file
the motion until Wednesday July 21, 2010. Yet even though appellee’s motion was
late, we may still consider it. This court has held that a motion for reconsideration
can be entertained even though it was filed beyond the ten-day limit if the motion
raises an issue of sufficient importance to warrant entertaining it beyond the time
limit. State v. Boone (1996), 114 Ohio App.3d 275, 277. In this case, we find that
appellee’s motion raises an issue of sufficient importance so as to warrant its
consideration.
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{¶4} Furthermore, App.R. 26 is not jurisdictional. Chandler v. C& A Hickman
and Sons, Inc. (July 18, 1996), 4th Dist. No. 94CA12. App.R. 14(B) provides as
much, stating:
{¶5} “For good cause shown, the court, upon motion, may enlarge or reduce
the time prescribed by these rules or by its order for doing any act, or may permit an
act to be done after the expiration of the prescribed time. The court may not enlarge
or reduce the time for filing a notice of appeal or a motion to certify pursuant to
App.R. 25. Enlargement of time to file an application for reconsideration *** shall not
be granted except on a showing of extraordinary circumstances.” (Emphasis added.)
{¶6} Thus, App.R. 14(B) gives this court jurisdiction to enlarge the time to file
an application for reconsideration.
{¶7} In addition to its motion for reconsideration, appellee filed a motion for
leave to correct, modify, or supplement the record. In this motion, appellee asks the
Court to add to the record on appeal a supplemental transcript of proceedings. It
contends that this supplemental transcript supports its argument. Appellee states
that the transcript was ordered, and due to a clerical mistake, this portion of the
transcript was not included in the record on appeal. The supplemental transcript
contains a note from the court reporter explaining:
{¶8} “Upon further examination of the court reporter’s record of this date, the
reopened portion of this hearing was contained in a separate file. The following is
the remaining proceeding held in this case on January 5, 2009.”
{¶9} The Ohio Supreme Court has held that in this unique type of situation
where there was an accidental omission of part of a transcript, reconsideration should
be allowed in light of the accidentally omitted transcript portion. Reichert v. Ingersoll
(1985), 18 Ohio St.3d 220, 222-23. The Court emphasized the policy of settling
cases on their merits and App.R. 9(E), which provides that an appellate court may
direct the correction of an omission in the record. Id. Thus, we will allow appellee to
supplement the record on appeal with the accidentally omitted portion of the
transcript.
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{¶10} In reaching our decision reversing and remanding the trial court’s
judgment, we relied in large part on the fact that there was no evidence that the trial
court continued the hearing in question when it had said that it was going to do so.
Deutsche Bank Natl. Trust Co., 7th Dist. No. 09-BE-4, at ¶¶39-41. We also relied on
the fact that the trial court granted appellee summary judgment without considering
appellants’ response. Id. We held that because the trial court rendered summary
judgment without reading/considering appellants’ response or request for hearing
and because the trial court started a hearing and never resumed it, appellants were
entitled to relief from the judgment of foreclosure. Had the supplemental transcript
been contained in the original record, we would have reached the opposite
conclusion.
{¶11} The supplemental transcript reveals that the court did in fact continue
with the hearing. (Supp. Tr. 2). Further, the court heard testimony from appellant
Pamela Knox. (Supp. Tr. 3-8). And before listening to Knox’s testimony, the court
explained to appellants’ counsel:
{¶12} “We’re on your [appellants’] motion to set aside the judgment. You’re
introducing evidence on that motion, but it affects the Motion For Summary
Judgment, which was originally filed in the case, and which this court signed
inadvertently without noting that you had filed a response to the Motion For Summary
Judgment. And what I’m saying to you is this: I know that I didn’t have to give you
an oral hearing on this, but I am granting the oral hearing, because of the
inadvertence of the Court, and also because of the fact that this case has lasted for
over a year, because the Court felt that it wanted to bring the parties together to try to
resolve the claim. So I’m giving the defendants every opportunity to present
whatever information they can present.” (Supp. Tr. 2-3).
{¶13} Thus, the supplemental transcript reveals that (1) the trial court did
proceed with the hearing as it stated it would and (2) that the court was willing to
reconsider its grant of summary judgment and listen to any evidence appellants had
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to offer. Had the supplemental transcript been included in the original record on
appeal, this Court would have affirmed the trial court’s judgment at that time.
{¶14} Based on the above, we grant appellee’s motion to correct and
supplement the record. We further grant appellee’s application for reconsideration
and vacate our July 9, 2010, Opinion and Judgment Entry which reversed and
remanded the matter to the trial court. Instead, we enter an Opinion and Judgment
Entry affirming the trial court's decision.
Vukovich, .J., concurs.
DeGenaro, J., dissents with attached dissenting opinion.
DeGenaro, J., dissenting:
{¶15} I must respectfully dissent from my colleagues' decision to grant
reconsideration in this case. The authority relied upon by the majority to support
exercising jurisdiction over Appellee's untimely application for reconsideration is no
longer good law in light of a decision by the Ohio Supreme Court issued three
months prior to Boone concluding that an untimely application for reconsideration
must be denied.
{¶16} In Martin v. Roeder (1996) 75 Ohio St.3d 603, 665 N.E.2d 196, after
summary judgment against the plaintiff had been affirmed by the Court of Appeals
and an appeal had not been allowed by the Supreme Court, the plaintiff filed a
motion for relief from judgment in the Court of Appeals which was denied. The
Supreme Court held that the rule dealing with seeking relief from a trial court
judgment was clearly inapplicable to an appellate court's judgment on appeal, and
could not be used to circumvent the time limit set by App.R. 26 for reconsideration of
an appellate judgment:
{¶17} "[U]nder the Appellate Rules, application for reconsideration of any
judgment submitted on appeal must be filed within ten days after filing of the
judgment or announcement of the court's decision, whichever is later. App.R. 26(A).
Therefore, even if Martin's motion could have been construed as an application for
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reconsideration, it would have been untimely." Id. at 604.
{¶18} Further, this Court has previously cited to Martin when denying untimely
applications for reconsideration:
{¶19} "App.R. 26(A) requires that an application for reconsideration must be
filed within ten days after the announcement of the court's decision. Hess's request
was not filed until ten weeks after our opinion in his case was released. An untimely
application for reconsideration must be denied. Martin v. Roeder (1996), 75 Ohio
St.3d 603, 665 N.E.2d 196." State v. Hess, 7th Dist. No. 02 JE 36, 2004-Ohio-1197,
at ¶4. See also, Scott v. Falcon Transport Co., 7th Dist. No. 02 CA 145, 2004-Ohio-
389, at ¶2 ("Appellees request for reconsideration of our decision denying their
motion for sanctions was filed more than ten days after our opinion was filed, and if
they were seeking leave to do so untimely, the rule does not provide for such an
option. For these reasons, Appellees request is denied.")
{¶20} My colleagues rely upon App.R. 14(B) as support for their decision.
However, Appellee has given no reason for the untimely filing of its motion, let alone
stating extraordinary circumstances required by the rule. Pursuant to App.R. 14(B),
Martin, Hess and Scott we have no discretion to consider an untimely motion for
reconsideration. For these reasons, I would deny reconsideration.