Opinion

Bank of Am. v. Miller

  • 2016 Ohio 7017
Court
Ohio Court of Appeals
Filed
Sep 23, 2016
Status
Published
On the bench
Per Curiam
Cited by
3 cases
Authority
More cited than 56.2%

The opinion

[Cite as Bank of Am. v. Miller, 2016-Ohio-7017.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

TRACY KINDERDINE, et al. )

)

PLAINTIFFS-APPELLEES )

)

V. ) CASE NO. 14 MA 0174

)

MAHONING COUNTY BOARD OF ) OPINION

DEVELOPMENTAL DISABILITIES, et al. ) AND

) JUDGMENT ENTRY

DEFENDANTS-APPELLANTS

CHARACTER OF PROCEEDINGS: Motion to Certify a Conflict

JUDGMENT: Denied

-2-

APPEARANCES:

For Plaintiffs-Appellees Attorney W. Craig Bashien

Attorney Anthony N. Palombo

Bashein & Bashein Co., L.P.A.

Terminal Tower, 35th Floor

50 Public Square

Cleveland, Ohio 44113

Attorney Paul Flowers

Paul W. Flowers Co., L.P.A.

Terminal Tower, 35th Floor

50 Public Square

Cleveland, Ohio 44113

Attorney Thomas J. Wilson

Comstock, Springer & Wilson Cp., L.P.A.

100 Federal Plaza East, Suite 926

Youngstown, Ohio 44503-1811

For Defendants-Appellant Attorney Todd M. Raskin

Attorney Carl E. Cormany

Attorney Frank H. Scialdone

Mazanec, Raskin & Ryder Co., L.P.A.

100 Franklin's Row

34305 Solon Road

Cleveland, OH 44139

JUDGES:

Hon. Mary DeGenaro

Hon. Cheryl L. Waite

Hon. Carol Ann Robb

Dated: September 23, 2016

[Cite as Bank of Am. v. Miller, 2016-Ohio-7017.]

PER CURIAM.

{¶1} Plaintiffs–Appellees, Tracy Kinderdine et al., have filed a motion

requesting that we certify two conflicts to the Ohio Supreme Court between this

court's June 30, 2016 judgment in the instant case, Kinderdine, et al., v. Mahoning

County Board of Developmental Disabilities et al., 7th Dist. No. 14 MA 0174, 0177,

0180, 0181, 2016–Ohio–4815, and the Eighth District's judgment in Kerber v.

Cuyahoga Hts., 8th Dist. No. 102419, 2015-Ohio-2766, regarding physical defects,

and the Sixth District's decision in Seiler v. Norwalk, 192 Ohio App.3d 331, 2011-

Ohio-548, 949 N.E.2d 63 (6th Dist.) regarding the restoration of immunity.

Defendants–Appellants, Mahoning County Board of Developmental Disabilities, et al.,

filed a brief in opposition.

{¶2} A court of appeals shall certify a conflict when its judgment is in conflict

with the judgment pronounced upon the same question by any other court of appeals

in the state of Ohio. Section 3(B)(4), Article V, Ohio Constitution. In order to certify a

conflict to the Ohio Supreme Court, we must find that three conditions are met:

First, the certifying court must find that its judgment is in conflict with the

judgment of a court of appeals of another district and the asserted

conflict must be "upon the same question." Second, the alleged conflict

must be on a rule of law-not facts. Third, the journal entry or opinion of

the certifying court must clearly set forth that rule of law which the

certifying court contends is in conflict with the judgment on the same

question by other district courts of appeals.

Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).

(Emphasis sic.)

{¶3} The Kinderdines have set forth two issues which they contend require

certification to the Ohio Supreme Court:

1. Does the phrase "due to physical defects" set forth in R.C.

2744.02(B)(4) require that the physical defect must always be the

actual instrumentality that inflicts the injury?

-2-

2. In order to restore immunity under R.C. 2744.03(A)(5) must the

political subdivision establish with admissible evidence that

discretionary decisions were rendered?

{¶4} The Kinderdines have not met the standard for conflict certification; our

judgment here does not conflict on a rule of law with the Eighth District in Kerber, nor

with the Sixth District in Seiler. Rather, they are factually different. Factual distinctions

are not a basis for certification. Whitelock, supra.

{¶5} Accordingly, the Kinderdines' motion to certify a conflict is denied.

DeGenaro, J., concurs.

Waite, J., concurs.

Robb, J., concurs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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