DEUTSCHE BANK NATIONAL TRUST CO. v. KENNETH KNOX, ET AL.
CASE NO. 09-BE-4
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
January 24, 2011
[Citе as Deutsche Bank Natl. Trust Co. v. Knox, 2011-Ohio-421.]
CHARACTER OF PROCEEDINGS: Application for Reconsideration. JUDGMENT: Granted. Opinion and Judgment Entry of July 9, 2010 vacated. Judgment affirmed.
For Plaintiff-Appellee: Attorney Matthew G. Burg, Lakeside Place, Suite 200, 323 W. Lakeside Avenue, Cleveland, Ohio 44113
For Defendant-Appellant: Attorney Thomas M. Ryncarz, 3713 Central Avenue, Shadyside, Ohio 43947
JUDGES: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DеGenaro
{¶1} Plaintiff-appellee, Deutsche Bank National Trust Company, has filed a motion pursuant to
{¶2}
{¶3} Initially, we must address the timeliness of appellee‘s motion.
{¶4} Furthermore,
{¶5} “For good cause shown, the court, upon motion, may еnlarge or reduce the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of the prescribed time. Thе court may not enlarge or reduce the time for filing a notice of appeal or a motion to certify pursuant to
{¶6} Thus,
{¶7} In addition to its motion for reconsideration, appellee filed a motion for leave to correct, modify, or supplement the record. In this motiоn, appellee asks the Court to add to the record on appeal a supplemental transcript of proceedings. It contends that this supplemental transcriрt supports its argument. Appellee states that the transcript was ordered, and due to a clerical mistake, this portion of the transcript was not included in the record on аppeal. The supplemental transcript contains a note from the court reporter explaining:
{¶8} “Upon further examination of the court reporter‘s record оf this date, the reopened portion of this hearing was contained in a separate file. The following is the remaining proceeding held in this case on January 5, 2009.”
{¶9} The Ohio Supreme Court has held that in this unique type of situation where there was an accidental omission of part of a transcript, reconsideration should be allowed in light of the accidentally omitted transcript portion. Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 222-23. The Court emphasized the policy of settling cases on their merits and
{¶10} In reaching our decision reversing and remanding the trial court‘s judgment, we relied in large part on the fact that there was no evidence that the trial court continued the hearing in question when it had said that it was going to do so. Deutsche Bank Natl. Trust Co., 7th Dist. No. 09-BE-4, at ¶¶39-41. We also relied on the fact that the trial court granted appellee summary judgment without considering appellants’ response. Id. We held that because the trial court rendered summary judgment without reading/considering appellants’ response or request for hearing and because the trial court started a hearing and never resumed it, appellants were entitled to relief from the judgment of foreclosure. Had the supplemental transcript been contained in the original record, wе would have reached the opposite conclusion.
{¶11} The supplemental transcript reveals that the court did in fact continue with the hearing. (Supp. Tr. 2). Further, the court heard testimony from appellant Pamela Knox. (Supp. Tr. 3-8). And before listening to Knox‘s testimony, the court explained to appellants’ counsel:
{¶12} “We‘re on your [appellants‘] motion to set aside the judgment. You‘re introducing evidence on that motion, but it affects the Motion For Summary Judgment, which was originally filed in the case, and which this court signed inadvertently without noting that you hаd filed a response to the Motion For Summary Judgment. And what I‘m saying to you is this: I know that I didn‘t have to give you an oral hearing on this, but I am granting the oral hearing, because of the inadvertence оf the Court, and also because of the fact that this case has lasted for over a year, because the Court felt that it wanted to bring the parties together to try to resolve the claim. So I‘m giving the defendants every opportunity to present whatever information they can present.” (Supp. Tr. 2-3).
{¶13} Thus, the supplemental transcript reveals that (1) the trial court did proceed with the hearing as it stated it would and (2) that the court was willing to reconsider its grant of summary judgment and listen to any evidence appellants had
{¶14} Based on the above, we grant appellee‘s motion to correct and supplement the record. We further grant appellee‘s application for reconsideration and vacate our July 9, 2010, Opinion and Judgment Entry which reversed and remanded the matter to the trial court. Instead, we enter an Opinion and Judgment Entry affirming the trial court‘s decision.
Vukovich, .J., concurs.
DeGenaro, J., dissents with attached dissenting opinion.
DeGenaro, J., dissenting:
{¶15} I must respectfully dissent from my colleagues’ decision to grant reconsideration in this case. The authority relied upon by the majority to support exercising jurisdiction over Appellee‘s untimely application for reconsiderаtion is no longer good law in light of a decision by the Ohio Supreme Court issued three months prior to Boone concluding that an untimely application for reconsideration must be denied.
{¶16} In Martin v. Roeder (1996) 75 Ohio St.3d 603, 665 N.E.2d 196, after summary judgment against the plaintiff had been affirmed by the Court of Appeals and an appeal had not been allowed by the Supreme Court, the plaintiff filed a motion for relief frоm judgment in the Court of Appeals which was denied. The Supreme Court held that the rule dealing with seeking relief from a trial court judgment was clearly inapplicable to an appellate court‘s judgment on appeal, and could not be used to circumvent the time limit set by
{¶17} “[U]nder the Appellate Rules, application for reconsideration of any judgment submittеd on appeal must be filed within ten days after filing of the judgment or announcement of the court‘s decision, whichever is later.
{¶18} Further, this Court has previously cited to Martin when denying untimely applications for reconsideration:
{¶19} ”
{¶20} My colleagues rely upon