Court of Appeals of Ohio, Seventh District, Mahoning
RICHARD D. GENTILE, M.D, PLAINTIFF-APPELLANT,
KELLY TURKOLY, DEFENDANT-APPELLEE.
Plaintiff-Appellant: Atty. Christopher P. Lacich Roth, Blair,
Roberts, Strasfeld & Lodge, L.P.A.
Defendant-Appellee: Atty. Christopher J. Regan Atty. J.
Zachary Zatezalo Bordas & Bordas, LLC.
JUDGES: Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary
OPINION AND JUDGMENT ENTRY
Appellant has timely filed a joint application for en banc
consideration and reconsideration of this appeal. Appellee
timely opposed the applications.
opinion will address Appellant's application for
reconsideration. The application for en banc consideration
will be addressed in a separate decision.
"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.
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.
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,
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. 41(B). Therefore, Appellant argues reliance on
City of Steubenville is misplaced because the issue
raised to us in that case was improperly framed.
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.
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.
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.