application of appellant, Electronic Classroom of Tomorrow,
for en banc consideration pursuant to App.R. 26(A)(2} is
denied for lack of a conflict.
P.J., BROWN, DORRIAN, LUPER SCHUSTER, & BEATTY BLUNT,
SADLER. & NELSON, JJ., not participating.
BRUNNER, J., dissenting.
1} I respectfully dissent from the decision of the
majority on both motions submitted to this Court by
appellant, Electronic Classroom of Tomorrow
("ECOT"), one for reconsideration of the
Court's reconsidered decision of April 25, 2019, and the
second for en banc consideration of this matter, for which
the majority of this Court has found that no conflict exists
pursuant to App.R. 26(A)(2).
2} The same panel of this Court that decided
ECOT's original appeal granted the Ohio State Board of
Education, et al.'s ("Board") reconsideration
of it on April 25, 2019. More simply put, a 2-1 decision by
the same three-judge panel "flipped" to a different
2-1 decision based on an undefined "obvious error"
of law, that to my view was no more than the changing of one
panel member's mind. That is not the standard for what is
"obvious error" and worse yet, because we have two
lines of cases in this district for what obvious error is,
the entire court should consider the question.
3} I find that we should reconsider as a court en
banc our April 25, 2019 reconsidered decision, not only
because conflicting decisions of the same panel tend not to
promote consistency and reliability of decisions of this
Court, but also because I find that the standard of review
for App.R. 26 motions for reconsideration has been decided by
this Court based on two standards since 2014. And the
standard adopted by the majority in denying this most recent
motion for reconsideration is precisely why no
reconsideration should have taken place. A single judge on
the same panel at differing times on the same case has
effectively found both decisions as being supportable
"under the law." According to our own caselaw since
2014, but not used by this panel, this is not obvious error,
and no reconsideration should have taken place on April 25,
2019, nor should it now.
4} To elucidate, the new majority in the April 25,
2019 decision granting the Board's motion for
reconsideration relied on Matthews v. Matthews, 5
Ohio App.3d 140, 143 (10th Dist.1982), in determining what is
App. R. 26, which provides for the filing of an application
for reconsideration in this court, includes no guidelines to
be used in the determination of whether a decision is to be
reconsidered and changed. The test generally applied is
whether the motion for reconsideration calls to the attention
of the court an obvious error in its decision or raises an
issue for our consideration that was either not considered at
all or was not fully considered by us when it should have
5} Yet, there exists in this district the following
language in a 2014 opinion of this Court, actually
defining what is "obvious error":
" 'App.R. 26 provides a mechanism by which a party
may prevent miscarriages of justice that could arise when an
appellate court makes an obvious error or renders an
unsupportable decision under the law.' "
(Emphasis added.) State v. Harris, 10th Dist. No.
13AP-1014, 2014-Ohio-672, ¶ 8, quoting Corporex Dev.
& Constr. Mgt., Inc. v. Shook, Inc., 10th Dist. No.
03AP-269, 2004-Ohio- 2715, ¶ 2, quoting State v.
Owens, 112 Ohio App.3d 334, 336 (11th Dist.1996). This
phrase, "unsupportable decision under the law," has
been used numerous times by our court (e.g.,
State v. Stewart, 10th Dist. No. 11AP-787,
2013-Ohio-78, ¶ 3) and in other districts, especially
the 7th, 11th, and 2nd Districts. But since that time, and
even now, we have ignored the Harris definition of
"obvious error" (unsupportable decision under the
law) and instead relied on Matthews, even in
decisions on reconsideration we have issued as recently as
this year. See, e.g., Dublin City Schools Bd. of Edn. v.
Franklin Cty. Bd. of Revision, 10th Dist. No.
17AP-684, 2019-Ohio-1069, ¶ 2; State v.
Armengau, 10th Dist. No. 18AP-276, 2019-Ohio-1010,
¶ 16, fn. 4. Since Harris, there exist two
standards of review in this district for what is meant by
"obvious error" concerning App.R. 26 motions for
reconsideration, with panels seeming to pick and choose which
standard they will observe (one of which is basically no
standard, Matthews). And while much of this may be
unfortunate and inadvertent, by not resolving and clarifying
what is the standard for reconsideration, we hazard
the public view that our decisions appear arbitrary.
6} Thus, I find we should grant reconsideration of
our reconsidered decision, because the panel chose to rely on
the undefined "obvious error" standard of review of
Matthews when the same panel member found that both
decisions at one time or another were supported under the law