from the Ohio Board of Tax Appeals Board of Tax Appeals Case
A. Dimengo #0037194 (Counsel of Record) Richard B. Fry III
#0084221 Buckingham, Doolittle & Burroughs, LLC Counsel
for Appellant, The Cincinnati Reds, LLC.
Michael Dewine #0009181 Attorney General of Ohio Daniel W.
Fausey #0079928 Kody Teaford #0092307 Office of the Ohio
Attorney General Counsel for Appellee, Joseph W. Testa, Tax
Commissioner of Ohio.
APPELLANT'S MOTION FOR RECONSIDERATION
Rule 18.02(B)(2) of the Rules of Practice of the Supreme
Court of Ohio, Appellant The Cincinnati Reds, LLC,
respectfully requests that the Court reconsider its September
1, 2017 judgment entry (entered this morning) dismissing this
appeal for failure to prosecute with requisite diligence.
Appellant filed its Stipulated Extension of Time for
Appellant to File First Merit Brief on August 29, 2017- one
day after the deadline provided by S.Ct.Prac.R. 3.03(B)(2).
This was not the result of a lack of diligence in prosecuting
the appeal, but rather a docketing error that had occurred
weeks before, but had gone undetected until after the
stipulation was agreed to by appellee's counsel on August
29, 2017. Up until that time, counsel for Appellant had, in
good faith, believed that the briefing deadline was Friday,
September 1, 2017.
as if the deadline was September 1, 2017, appellant's
counsel had commenced outlining, researching and drafting its
merit brief. Upon realizing on August 29, 2017 that
additional time would be helpful, appellant's co-counsel
(Richard B. Fry III) emailed appellee's counsel to obtain
a stipulated extension of time, which appellee's counsel
approved. Exhibit A, Affidavit of Counsel, Steven A. Dimengo,
at Exhibit 1. After approval was received from appellee's
counsel, it was discovered that the actual filing deadline
was August 28, 2017. This is not a case of failing to
prosecute with requisite diligence, but rather an inadvertent
stated purpose of the Rules of Practice of the Supreme Court
of Ohio "is to promote the efficient administration of
justice in cases filed with the Supreme Court."
S.Ct.Prac.R. 1.02. The dismissal entry of September 1, 2017
does not promote the underlying purpose of the Rules. Under
Rule 16.07(A), the Court has the discretion whether to
dismiss an appeal where the appellant does not file its merit
brief within the applicable deadline. The undersigned
respectfully asks the Court to exercise its discretion by not
dismissing this appeal since the issue arose from a good
faith docketing error and did not prejudice the appellee.
Court recognizes that that "the fundamental tenet of
judicial review in Ohio is that courts should decide cases on
their merits." State ex rel. Becker v.
Eastlake, 93 Ohio St.3d 502, 505, 756 N.E.2d 1228
(2001). This Court has, therefore, at times overlooked good
faith violations of the Rules of Practice in the interest of
deciding a case on the merits. See id. "[I]n an
effort to promote justice, " this Court "exercises
a certain liberality in enforcing a strict attention to its
rules * * *." Wellington v. Mahoning Cty. Bd. of
Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d
420, ¶ 18. The undersigned has a long history of
appearances before this Court, including eighteen other
cases, without ever missing a filing deadline. Dimengo
Affidavit, ¶ 4. This rule violation was an aberration -
caused by a docketing error, not a lack of diligence.
Further, the one-day delay has not prejudiced the appellee /
Tax Commissioner in any way, as his counsel had already
agreed to extend the filing deadline by 20 days. This
Court's reconsideration of its sua sponte dismissal would
promote the essential purpose of judicial review by reaching
the merits of the sole issue in this appeal.
these reasons, Appellant respectfully requests this Court
grant this motion to reconsider and vacate the judgment entry
of September 1, 2017, and grant Appellant leave to file its
merit brief on or before September 18, 2017. Appellant has
acted consistent with fully prosecuting this appeal, as
further reflected by the immediate filing of this Motion for
A AFFIDAVIT OF COUNSEL
A. DIMENGO, being first duly sworn, deposes and states as
1. I am
over 21 years of age and have personal knowledge of the ...