Norman v. Kellie Auto Sales, Inc.

• Decision Date: 30 December 2020
• Docket Number: No. 18AP-32,18AP-32
• Citation: 165 N.E.3d 805
• Parties: Justin NORMAN, Plaintiff-Appellee, v. KELLIE AUTO SALES, INC., Defendant-Appellant.
• Court: Ohio Court of Appeals

165 N.E.3d 805

Justin NORMAN, Plaintiff-Appellee,

v.KELLIE AUTO SALES, INC., Defendant-Appellant.

No. 18AP-32

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered December 30, 2020

DECISION

DORRIAN, J.

{¶ 1} This case involves plaintiff-appellee, Justin Norman's, purchase of a vehicle from defendant-appellant, Kellie Auto Sales, Inc. ("Kellie Auto"); Norman's attempted return of the vehicle upon learning it was a rebuilt salvage; the parties' participation in arbitration in an effort to resolve the dispute; the arbitrator's award in favor of Norman and finding that Kellie Auto had knowingly committed an unfair or deceptive act under the Consumer Sales Practices Act ("CSPA"); Kellie Auto's refusal to pay the award; Norman's filing with the trial court for judgment and to confirm the arbitration award pursuant to R.C. 2711.09 ; Kellie Auto's construing Norman's filing as an "action" under the CSPA and R.C. 1345.092 ; and subsequent filing with the trial court of a notice of cure offer and application to modify the arbitration award pursuant to R.C. 2711.11.

{¶ 2} The Franklin County Court of Common Pleas denied Kellie Auto's request to modify the arbitration award and granted Norman's application to confirm the award; and denied Kellie Auto's motion for relief from judgment; Kellie Auto appealed.¹

{¶ 3} On February 5, 2019, a three-judge panel of this court filed Norman v. Kellie Auto Sales, Inc. , 10th Dist., 2019-Ohio-360, 129 N.E.3d 1040 ("original decision"), reversing in part and affirming in part the trial court's decisions. The panel sustained the first assignment of error and reversed finding the trial court erred "when it refused to recognize [Kellie Auto's] timely exercise of a ‘right to cure’ pursuant to R.C. 1345.092." Id. at ¶ 18. Norman filed an application for reconsideration.

{¶ 4} Subsequent to the filing of the original decision, one judge of the panel retired and another judge resigned. The judge who was elected to the seat previously held by the retired judge had been the trial judge on the case and therefore a conflict existed; in her place, a judge of the court was randomly selected for the panel on reconsideration, joining the judge who was appointed to fulfill the term of the resigned judge and the original judge of the panel.

{¶ 5} By a 2-1 majority, with the original author now in dissent, the panel granted reconsideration, vacated the original decision, overruled the first assignment of error, and affirmed the trial court's decisions. Norman v. Kellie Auto Sales, Inc. , 10th Dist., 2020-Ohio-4311, 158 N.E.3d 166 ("first reconsideration decision"). The original panel member would have denied reconsideration. In addition, the reconsideration panel majority overruled the remaining assignments of error, including the second assignment of error, regarding the trial court's affirming of the arbitrator's award of attorney fees, which the original panel had declined to address determining it to be moot. Finally, the panel declined to grant Norman's request to remand the decision to the trial court to consider his motion for post-arbitration attorney fees.

{¶ 6} On September 9, 2020, Norman filed an application for partial reconsideration of the first reconsideration decision. Norman asks this court to reconsider our ruling to decline to remand to the trial court Norman's motion for post-arbitration attorney fees. On September 14, 2020, Kellie Auto filed an application for reconsideration and an application for consideration en banc of the first reconsideration decision. Kellie Auto asks the court to reconsider its application of the criteria regarding reconsideration and "void[ing]" of the asserted CSPA right to cure. Kellie Auto further requests the full court consider the case en banc and argues the first reconsideration decision conflicts with: (1) State v. Harris , 10th Dist. No. 13AP-1014, 2014-Ohio-672, 2014 WL 747201, (2) Hal v. State Dept. of Edn. , 10th Dist. No. 18AP-301, 2020-Ohio-204, 2020 WL 399283, and (3) the Norman original decision, 2019-Ohio-360, 129 N.E.3d 1040.

Criteria for Reconsideration

{¶ 7} App.R. 26(A) provides a mechanism by which parties may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law. Harris at ¶ 8. When presented with an application for reconsideration pursuant to App.R. 26(A)(1), an appellate court must determine whether the application calls to the court's attention 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. Electronic Classroom of Tomorrow v. State Bd. of Edn. , 10th Dist. No. 17AP-767, 2019-Ohio-1540, 2019 WL 1858225, ¶ 3, State v. Wade , 10th Dist. No. 06AP-644, 2008-Ohio-1797, 2008 WL 1723671, ¶ 2, discretionary appeal not allowed , 119 Ohio St.3d 1415, 2008-Ohio-3880, 891 N.E.2d 772, cert. denied, Ohio v. Wade , 555 U.S. 1126, 129 S.Ct. 921, 173 L.Ed.2d 158 (2009), Matthews v. Matthews , 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist.1981). However, an application for reconsideration is not intended for instances where a party simply disagrees with the logic or conclusions of the court. State v. Burke , 10th Dist. No. 04AP-1234, 2006-Ohio-1026, 2006 WL 541240, ¶ 2. Furthermore, an application for reconsideration is not a means to raise new arguments or issues. Electronic Classroom at ¶ 3, citing State v. Wellington , 7th Dist. No. 14 MA 115, 2015-Ohio-2095, 2015 WL 3487120, ¶ 9.

Norman's Application for Partial Reconsideration

{¶ 8} In his application for partial further reconsideration, Norman asks the court to reconsider and vacate: (1) our statement that the trial court did not expressly rule on Norman's motion for post-arbitration attorney fees, (2) our construction of the trial court not having ruled on the motion as a denial of the same, and (3) our observation that the trial court did affirm the arbitrator's award of an extra $1,000 for post-arbitration work. (First Reconsideration Decision at ¶ 41.) Norman points us to the trial court's January 22, 2018 entry, filed after Kellie Auto filed the notice of appeal. In the entry, the trial court stated:

Defendant appealed the Court's 12/11/17 Decision and Entry on 1/10/18. Plaintiff filed his motion for attorney's fees on 12/18/17. "When an appeal is taken from the [trial] court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court." State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978) ; see alsoInvestors Reit One v. Investors Resort Motel Corp., 10th Dist. Franklin No. 80AP-476, 1980 Ohio App. LEXIS 13445, at * 5 (holding trial court loses jurisdiction as to the phases of the case appealed). As such, the Court releases the highlighted motion from its docket under the noted authorities. Plaintiff may re-file his motion if appropriate after the appeals process has concluded.

IT IS SO ORDERED .

(Emphasis sic.) (Jan. 22, 2018 Entry.)

{¶ 9} We acknowledge the trial court's January 22, 2018 entry and make no determination as to the merits of any subsequent motion Norman may file in the trial court (as, for example, with regard to appellate counsel fees). However, we deny Norman's application for partial reconsideration as the trial court declined to rule on Norman's motion before releasing the same, and as further recited in the first reconsideration decision.

Kellie Auto's Application for Reconsideration

{¶ 10} To begin, Kellie Auto argues this court should reconsider the first reconsideration decision because it "failed to follow settled precedent when it used reconsideration as a vehicle to re-hash the merits of [the original decision]" and because " App.R. 26(A)(1) does not expressly authorize the [panel] to vacate the [original] decision * * * via an application for reconsideration." (Kellie Auto's App. for Recon. at 2-3.) In short, Kellie Auto contends our first reconsideration decision was improper because: (1) the original decision was not "unsupportable under the law," and (2) reconsideration was granted only because of the change of the appellate panel's composition.

{¶ 11} First, we reject Kellie Auto's suggestion that "obvious error" can only be defined as "unsupportable under the law." There is no settled precedent from this court that defines "obvious error" as Kellie Auto suggests. The two cases cited by Kellie Auto — Harris and Hal —did not define "obvious error." Both Hal and Harris stated only that " 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." (Quotations omitted.) (Emphasis added.) Hal ² at ¶ 1, quoting Harris at ¶ 8, quoting Corporex Develop. & Constr. Mgt., Inc. v. Shook, Inc. , 10th Dist. No. 03AP-269, 2004-Ohio-2715, 2004 WL 1172877, ¶ 2, quoting State v. Owens , 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996). This language does not define or limit to legally insupportable points of law what is an obvious error for purposes of reconsideration pursuant to App.R. 26. Nor would such a definition or limitation make sense. A panel could conceivably make any number of obvious errors justifying reconsideration including a factual error, a procedural error, or an error of law. Therefore, "obvious error" is not limited to "unsupportable under the law" but can encompass other types of error as well.

{¶ 12} Next, we reject Kellie Auto's arguments that: (1) App.R. 26(A)(1) provides no authority for this court to vacate its own decisions, and (2) "[t]here is no justification for why a decision from a second appellate panel, made up of two entirely new judges -- who now form a majority -- should supersede the unanimous decision from the first panel."...