Miller v. Sts. Peter and Paul School

William M. O’Neill, Judge,

dissenting.

I respectfully dissent from the opinion of the majority on two bases. First, I remain convinced that a motion for reconsideration is a nullity under

Pitts v. Dept. of Transp.

(1981), 67 Ohio St.2d 378, 380 , 21 O.O.3d 238, 239 , 423 N.E.2d 1105, 1107 . Therefore, I would hold that the trial court erred in considering appellees’ motion for reconsideration.

Assuming

arguendo

that the court could have considered appellees’ motion for reconsideration, appellees failed to demonstrate the type of extraordinary circumstances that generally require granting relief under App.R. 26(A). In order for an appellate court to grant a motion for reconsideration, the movant must identify “an obvious error in its decision” or demonstrate that the court did not properly consider an issue.

Matthews v. Matthews

(1981), 5 Ohio App.3d 140, 143 , 5 OBR 320, 323, 450 N.E.2d 278, 282 . In the instant matter, the only reasoning provided in the court’s subsequent entry granting the motion for reconsideration was that Judge McLain’s entry was “improvidently granted.” In my view, such a conclusion does not rise to the level of the type of relief envisioned by App.R. 26(A).

Furthermore, if appellant’s employer was the school, I cannot agree with the conclusion that the primary purpose was religion. The evidence very clearly demonstrated the purpose of the school was to educate children, and any religious aspect was laudable, but incidental to that mission. The majority relies upon

Czigler v. Ohio Bur. of Emp. Serv.

(1985), 27 Ohio App.3d 272 , 27 OBR 316, 501 N.E.2d 56 , to establish that the primary purpose of a religious school is religion. However, in that case, the school was a “pervasively religious educational institution operated, conducted and financed exclusively by the Jewish community

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for the purpose of preserving its religious traditions and practices.”

Id.

at 274 , 27 OBR at 317, 501 N.E.2d at 58 .

Accordingly, I dissent.