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Gentile v. Turkoly

Court of Appeals of Ohio, Seventh District, Mahoning

May 15, 2017

RICHARD D. GENTILE, M.D, PLAINTIFF-APPELLANT,
v.
KELLY TURKOLY, DEFENDANT-APPELLEE.

         Application for Reconsideration

          For Plaintiff-Appellant: Atty. Christopher P. Lacich Roth, Blair, Roberts, Strasfeld & Lodge, L.P.A.

          For Defendant-Appellee: Atty. Christopher J. Regan Atty. J. Zachary Zatezalo Bordas & Bordas, LLC.

          JUDGES: Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro.

          OPINION AND JUDGMENT ENTRY

          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. 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. ...


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