Carpenter v. Carpenter

[Cite as Carpenter v. Carpenter, 2023-Ohio-1496.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
MARY LOU CARPENTER, INDIVIDUALLY, AND AS ADMINISTRATRIX
OF THE ESTATE OF JERRY N. CARPENTER, DECEASED,
Plaintiff-Appellee,
v.
ROGER D. CARPENTER, INDIVIDUALLY, AND AS TRUSTEE OF THE
CARPENTER FAMILY TRUST U/A DATED JANUARY 27, 2014, ET AL.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0049
Application for Reconsideration
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Atty. Erik A. Schramm, Atty. Kyle W. Bickford and Atty. Erik A. Schramm, Jr., Hanlon,
McCormick, Schramm, Bickford & Schramm Co., LPA, 46457 National Road West, St.
Clairsville, Ohio 43950, for Plaintiff-Appellee and
Atty. Clifford C. Masch and Atty. Brian D. Sullivan, Reminger Co., L.P.A., 101 West
Prospect Room, Suite 1400, Cleveland, Ohio 44115, for Defendants-Appellants Timothy
P. Jarvis and Jarvis Law Office, LLC.
Dated: May 4, 2023
–2–
PER CURIAM.
{¶1} On February 6, 2023, Appellants, Jarvis Law Office, LLC and Attorney
Timothy Jarvis, filed an application pursuant to App. R. 26(B) seeking reconsideration of
our opinion and judgment entry in Carpenter v. Carpenter, 7th Dist. Belmont No. 21 BE
0049, 2023-Ohio-274, (J. Waite, dissenting in part).
{¶2} In the January 27, 2023 opinion and judgment entry, the panel affirmed the
entry of summary judgment by the trial court in favor of Appellee, Mary Lou Carpenter,
individually and as Administratrix of the Estate of Jerry N. Carpenter, deceased, and
against Appellants on Appellee’s claims for lack of capacity relating to the Carpenter
Family Trust u/a dated January 27, 2014 (“Trust”), in which Jerry, who suffered from
dementia and resided in a nursing home at the time the Trust was created, is the grantor;
undue influence; and fraud.
{¶3} The majority of the panel also affirmed the trial court’s entry of summary
judgment on Appellee’s claim for intentional interference with expectation of inheritance
(“IIEI”) and her motion for attorney fees. The dissent, on the other hand, concluded
Appellee failed to establish the elements of IIEI, and the attorney fees award was
unwarranted insofar as the trial court made no finding of actual malice.
{¶4} Reconsideration “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.” Deutsche Bank Natl. Trust Co. v.
Knox, 7th Dist. Belmont No. 09-BE-4, 2011-Ohio-421, ¶ 2. “When presented with an
application for reconsideration * * *, an appellate court must determine whether the
application calls to the court’s attention 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.” Norman v. Kellie Auto Sales, Inc., 2020-Ohio-6953, 165
N.E.3d 805, ¶ 7 (10th Dist.), aff’d, 167 Ohio St.3d 151, 2022-Ohio-1198, 189 N.E.3d 784.
{¶5} “A panel could conceivably make any number of obvious errors justifying
reconsideration including a factual error, a procedural error, or an error of law.” Id.However, mere disagreement with the majority’s logic and conclusions does not support
an application for reconsideration. Hampton v. Ahmed, 7th Dist. Belmont No. 02 BE 66,
Case No. 21 BE 0049
–3–
2005-Ohio-1766, ¶ 16 (“An application for reconsideration may not be filed simply on the
basis that a party disagrees with the prior appellate court decision.”)
{¶6} In the application for reconsideration, Appellants argue “even if this Court
were to believe that an award of attorney fees would be merited, it is without legal
authority to uphold an award of attorney fees absent a finding by the trial court of punitive
damages. Because the trial court found no punitive damages, this Court cannot uphold
an award of attorney’s fees.” (2/6/23 Application, p. 2.)
{¶7} As Appellants simply disagree with our interpretation of Ohio law, the
application for reconsideration is denied.
JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0049