# Board of Commissioners v. Village of Marblehead

> Ohio Court of Appeals · March 31, 1995 · 102 Ohio App. 3d 306

URL: https://www.frixlaw.com/law-library/cases/9813852

## Case

- **Full name:** BOARD OF COMMISSIONERS OF OTTAWA COUNTY, Appellee, v. VILLAGE OF MARBLEHEAD, OHIO, Et Al. Appellants
- **Court:** Ohio Court of Appeals
- **Decided:** March 31, 1995
- **Citations:** 102 Ohio App. 3d 306; 657 N.E.2d 287; 1995 Ohio App. LEXIS 1191
- **Precedential status:** Published
- **Opinion:** Concurring in part
- **Judges:** Abood, Glasser, Sherck
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Per Curiam.
On March 31,1995, this court issued an opinion affirming in part and reversing in part a judgment of the Ottawa County Court of Common Pleas. On April 10, *319 1995, appellants, the village of Marblehead and Kathleen K. Dziak, the Mayor of Marblehead, filed a motion for reconsideration in this court regarding our March 31, 1995 opinion. Appellants also filed an appeal regarding this decision in the Supreme Court of Ohio on May 15, 1995. On June 28, 1995, this court issued an opinion vacating a part of our March 31,1995 opinion and remanding the case to the trial court for an evidentiary hearing. On July 6,1995, appellee, the Board of County Commissioners of Ottawa County, filed a motion in this court to vacate our decision of June 28, 1995.
Appellee argues that this court was divested of jurisdiction when appellants’ appeal was perfected to the Supreme Court and this court did not rule on appellants’ motion for reconsideration within forty-five days as required by App.R. 26(C).
S.Ct.Prac.R. II(2)(D)(1) states:
“After an appeal is perfected from a court of appeals to the Supreme Court, the court of appeals is divested of jurisdiction, except to take action in aid of the appeal, to rule on an application for reconsideration filed with the court of appeals pursuant to Rule 26 of the Rules of Appellate Procedure, or to rule on a motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio Constitution.” (Emphasis added.)
The Staff and Committee Note to S.Ct.Prac.R. II states:
“Section 2(D) clarifies what jurisdiction is retained by the court of appeals after an appeal to the Supreme Court is perfected. In the interest of judicial economy, the Committee concluded that the court of appeals should not retain jurisdiction to rule on an application for reconsideration after jurisdictional memoranda are submitted to the Supreme Court pursuant to S.Ct.Prac.R. III. * * * * ”
App.R. 26(C) provides:
“If an application for reconsideration under division (A) of this rule is filed with the court of appeals, the application shall be ruled upon within forty-five days of its filing.”
The 1994 Staff Note to App.R. 26(C) states:
“ * * .* Judicial economy is promoted when the court of appeals resolves applications for reconsideration before the Supreme Court begins its review of the case, thereby avoiding duplicative effort by the Supreme Court. * * * * ”
A court of appeals acts within its jurisdiction and does not infringe the jurisdiction of the Supreme Court when it rules on an application for reconsideration before the Supreme Court grants a motion for leave , to appeal. State v. Murphy (1990), 49 Ohio St.3d 293, 295 , 551 N.E.2d 1292, 1295 .
*320 Appellee relies on the Staff and Committee Note to S.CtPrac.R. II that purports to divest a court of appeals of jurisdiction once jurisdictional memoranda are filed with the Supreme Court. However, appellee would appear to concede that, despite the Staff and Committee Note, pursuant to S.Ct.Prac.R. II, this court would have retained concurrent jurisdiction to rule on appellants’ motion for reconsideration if our ruling had been made within the forty-five-day limit of App.R. 26(C).
At the time of our decision, the Supreme Court had not yet granted appellants leave to appeal. In our view, the judicial economy espoused in the Staff Note to App.R. 26(C) is promoted and valuable Supreme Court resources are preserved when, pursuant to Murphy , we make our ruling before the Supreme Court exercises exclusive jurisdiction by granting appellants leave to appeal. Therefore, even though our decision was made after the forty-five day limit of App.R. 26(C), we conclude that this court retained jurisdiction to vacate in part our decision of March 31, 1995.
Accordingly, appellee’s motion to vacate is not well taken and is denied.
Motion denied.
Abood, P.J., Glasser and Sherck, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9813852. Public record. Not legal advice.