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The Cincinnati Reds, LLC v. Testa

Supreme Court of Ohio

September 2, 2017

The Cincinnati Reds, LLC, Appellant,
v.
Joseph W. Testa, Tax Commissioner of Ohio, Appellee.

         Appeal from the Ohio Board of Tax Appeals Board of Tax Appeals Case No. 2015-1707

          Steven 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

         Under 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.

         Proceeding 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 docketing error.

         The 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.

         This 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.

         For 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 Reconsideration.

         EXHIBIT A AFFIDAVIT OF COUNSEL

         STATE OF OHIO

         COUNTY OF SUMMIT

         STEVEN A. DIMENGO, being first duly sworn, deposes and states as follows:

         1. I am over 21 years of age and have personal knowledge of the ...


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