Russell E. Appenzeller, Plaintiff-Appellant,
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.
Cl. No. 2016-00444
APPLICATION FOR RECONSIDERATION
Russell E. Appenzeller, pro se.
Michael DeWine, Attorney General, and Emily Simmons Tapocsi,
1} Plaintiff-appellant, Russell E. Appenzeller, has
filed a pro se application pursuant to App.R. 26(A)(1), for
reconsideration of this court's decision in
Appenzeller v Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 17AP-747, 2018-Ohio-1038. For the reasons that
follow, we grant Appenzeller's application for
reconsideration and affirm the judgment of the Court of
Claims of Ohio.
2} Appenzeller filed a pro se complaint in the Court
of Claims asserting he was falsely imprisoned beyond the
expiration date of his prison sentence. Appenzeller
at ¶ 2 Defendant-appellee, Ohio Department of
Rehabilitation and Correction ("ODRC"), moved for
summary judgment in its favor, asserting Appenzeller was
incarcerated pursuant to valid sentencing orders from the
Mahoning County and Lake County Courts of Common Pleas, and
supporting its motion with an affidavit from Vicki Wallace, a
correction records sentence computation auditor for ODRC
("the Wallace Affidavit"). Id. The Court
of Claims granted ODRC's motion for summary judgment,
concluding ODRC was legally justified to confine Appenzeller
and that he did not present any evidence to establish the
sentencing orders attached to the Wallace Affidavit were
3} Appenzeller did not file a direct appeal from the
order granting ODRC's motion for summary judgment, but
filed a motion for relief from judgment, pursuant to Civ.R.
60(B), asserting the sentencing entries from the Lake County
Court of Common Pleas attached to the Wallace Affidavit were
fabricated. Id. at ¶ 3. The Court of Claims
denied Appenzeller's motion, concluding he failed to
establish a justifiable ground for relief from summary
judgment pursuant to Civ.R. 60(B). Id. Appenzeller
appealed to this court, asserting the Court of Claims abused
its discretion by denying the motion for relief from judgment
because the case numbers on the documents from the Lake
County Court of Common Pleas attached to the Wallace
Affidavit did not comply with the local rules of that court.
Id. at ¶ 4. We overruled Appenzeller's
assignment of error and affirmed the judgment of the Court of
Claims finding the presence of hyphens in the case numbers on
two of the Lake County sentencing entries attached to the
Wallace Affidavit did not, of itself, establish those
documents were inauthentic. Id. at ¶ 6. Because
Appenzeller offered no other arguments or evidence to support
his claim that the documents were fraudulent, we could not
conclude the Court of Claims abused its discretion by finding
Appenzeller failed to establish he was entitled to relief
from judgment under Civ.R. 60(B). Id.
4} The test applied to an application for
reconsideration is whether the motion calls to the attention
of the court an obvious error in our prior determination or
raises an issue that was not properly considered by the court
in the first instance. Matthews v. Matthews, 5 Ohio
App.3d 140 (10th Dist.1981). This rule providing an
opportunity to apply for reconsideration is not intended for
instances in which a party simply disagrees with the
reasoning and conclusions of the appellate court. Drs.
Kristal & Forche, D.D.S., Inc. v. Erkis, 10th Dist.
No. 09AP-06, 2009-Ohio-6478, ¶ 2, citing State v.
Owens, 112 Ohio App.3d 334, 336 (11th Dist.1996).
Reconsideration will be denied where the moving party simply
seeks to "rehash the arguments [the party] made in its
appellate brief." Garfield Hts. City School Dist. v.
State Bd. of Edn., 85 Ohio App.3d 117, 127 (10th
5} In his application for reconsideration,
Appenzeller asserts this court failed to consider his
argument that the references to the Lake County prosecution
demonstrated fraud because they did not contain ten
characters, including a six-digit sequential number following
the two letter case category abbreviation, as required by the
Lake County Local Rules of Court. Appenzeller claims this
court misconstrued his argument by finding that the presence
of hyphens in the case numbers on the relevant documents did
not establish they were fraudulent. He asserts that his
argument on appeal focused on the characters or digits in the
case numbers, not the absence or presence of hyphens. Because
Appenzeller has raised an issue not considered by this court
in the first instance, we grant his application to reconsider
6} Appenzeller claims he was not subject to
prosecution in the Lake County Court of Common Pleas in 2006
and that the judgment entries attached to the Wallace
Affidavit and references to that case in the Wallace
Affidavit and ODRC's motion for summary judgment were
evidence of fraud. In support of this argument, he cites
Loc.R. 1.05(A)(5) of the Court of Common Pleas of Lake
County, General Division, which provides that "[a] case
number shall consist of ten characters, without spaces, as
follows: two-digit year of filing, followed by the two-letter
case category, followed by the six-digit sequential number
(e.g. 12CV003456)." Two documents from the Lake County
Court of Common Pleas were attached to the Wallace Affidavit,
each containing the case No. "06-CR-000108."
Further, in the affidavit, Wallace referred to the Lake
County prosecution as "06CR108" and as
"06-CR-000108." In its motion for summary judgment,
ODRC referred to the case No. in the Lake County prosecution
as "06CR108" and as "06-CR-00108."
Appenzeller appears to argue the motion for summary judgment
and the Wallace Affidavit refer to three different case
numbers that do not conform to the requirements of the local
rules of court and, therefore, are evidence of fraud.
7} The local rule cited by Appenzeller governs the
assignment of case numbers and requires that each case number
include a "six-digit sequential number" at the end.
The sentencing entries attached to the Wallace Affidavit
indicate that the six-digit sequential number assigned to
Appenzeller's 2006 prosecution was "000108."
Thus, as we found in our prior decision, the case numbers on
those sentencing entries appear to comply with the numbering
convention contained in the local rules. Appenzeller
at ¶ 6. Appenzeller's only remaining argument is
that Wallace's reference to the case as
"06CR108" and ODRC's reference to the case as
"06-CR-00108" demonstrate fraud. However, it is
clear that Wallace's reference to the case as
"06CR108" simply involves a truncation of the
six-digit number by removing the leading zeroes. Likewise,
ODRC's reference to the case as "06-CR-00108"
involves either a truncation by removing the first leading
zero of the six-digit number or, more likely, a typographical
error. Referring to the case by using a shortened number that
omits leading zeroes does not, of itself, establish fraud.
Moreover, as noted, the underlying sentencing entries
attached to the Wallace Affidavit comport to the local rule
and contain the full ten-digit case number, including the
final six-digit sequential number. As stated in our prior
decision, Appenzeller offers no other arguments or evidence
to support his claim of fraud. Id. Under these
circumstances, we cannot conclude the trial court abused its
discretion by concluding Appenzeller failed to establish that
he was entitled to relief from judgment under Civ.R. 60(B)(1)
8} Accordingly, we overrule Appenzeller's