Electronic Classroom of Tomorrow, Appellant-Appellant, v. Ohio State Board of Education et al., Appellees-Appellees.
No. 17AP-767 (C.P.C. No. 17CV-5773)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on April 25, 2019
[Cite as Electronic Classroom of Tomorrow v. Bd. of Edn., 2019-Ohio-1540.]
(ACCELERATED CALENDAR)
Zeiger, Tigges & Little, LLP, Marion H. Little, Jr., John W. Zeiger, and Christopher J. Hogan, for appellant.
Organ Cole, LLP, Douglas R. Cole, Erik J. Clark, and Carrie M. Lymanstall, for appellees.
ON APPLICATION FOR RECONSIDERATION
PER CURIAM.
{¶ 1} On July 20, 2018, appellees-appellees, Ohio State Board of Education (“BOE“) and Ohio Department of Education (“ODE“), filed an application seeking reconsideration, pursuant to
{¶ 2} This court‘s opinion fully set forth the background of this case, and we will not repeat it here. After BOE issued a decision directing ECOT to repay an overpayment of public funds in excess of $60 million, ECOT sought to appeal the administrative action directly to the Franklin County Court of Common Pleas. The trial court dismissed ECOT‘s administrative appeal for lack of jurisdiction. On appeal to this court, the majority held the trial court erred in granting BOE‘s and ODE‘s motion to dismiss for lack of jurisdiction. More specifically, the majority concluded that the use of the word “final” in
II. Application for Reconsideration
{¶ 3} The test generally applied to an application for reconsideration is whether the application calls to the court‘s attention an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been. Matthews v. Matthews, 5 Ohio App.3d 140 (10th Dist.1981). However, an application for reconsideration “is not designed for use in 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, ¶ 2, citing State v. Owens, 112 Ohio App.3d 334, 336 (11th Dist.1996). Furthermore, an application for reconsideration is not a means to raise new arguments or issues. State v. Wellington, 7th Dist. No. 14 MA 115, 2015-Ohio-2095, ¶ 9.
{¶ 4} In their application for reconsideration, BOE and ODE ask this court to reconsider its decision with regard to whether the use of the word “final” in
{¶ 5} As relevant here,
{¶ 6} This court has previously construed the legislature‘s use of the word “final” in the context of decisions of administrative bodies to mean the decision is not subject to an appeal under
{¶ 7} In Brookwood, the Supreme Court considered a statute that provided that ODE‘s decision as to whether an entity was education-oriented was “final.” The Supreme Court noted that the same statute also expressly provided a right to appeal under
{¶ 8} Unlike the statute at issue in Brookwood, here
III. Disposition
{¶ 10} Based on the foregoing reasons, we find BOE and ODE have satisfied the grounds for reconsideration under
Application for reconsideration granted.
BROWN and LUPER SCHUSTER, JJ.
BRUNNER, J., dissents.
Electronic Classroom of Tomorrow, Appellant-Appellant, v. Ohio State Board of Education et al., Appellees-Appellees.
No. 17AP-767
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
{¶ 11} Appellees, Ohio State Board of Education (“BOE“) and Ohio Department of Education (“ODE“), have requested reconsideration and consideration en banc of our decision in Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., 10th Dist. No. 17AP-767, 2018-Ohio-2695. In that decision, we held that appellant Electronic Classroom of Tomorrow (“ECOT“) could appeal under
I. RECONSIDERATION
{¶ 12} Our standard of review of BOE‘s and ODE‘s motion to reconsider is:
[W]hether the motion calls to the attention of the court 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.
Matthews v. Matthews, 5 Ohio App.3d 140 (10th Dist.1981), paragraph two of the syllabus (construing
{¶ 13} ODE and BOE argue that we obviously erred when we distinguished Heartland Jockey, Shumway, and Carney (which concerned statutes governing the Ohio State Racing Commission, the State Teachers Retirement Board, and the School Employees Retirement System Board). They argue that distinguishing them was erroneous insofar as we did so on the basis that each of those decisions found no
{¶ 14} In Brookwood, the Supreme Court considered statutes that did involve ODE and BOE. The high court analyzed the tension between statutes governing whether appeal rights from ODE and BOE decisions existed in the context of determining whether a sponsoring organization was “education-oriented,” parallel to the situation we examined in our decision. The Supreme Court stated:
The crux of this case is the interplay between
R.C. 3314.015(B)(3) and3314.015(D) .R.C. 3314.015(D) grants a right of appeal to entities disapproved for community-school sponsorship; the question is whetherR.C. 3314.015(B)(3) takes it away in certain circumstances. ODE asserts that its determination that Brookwood is not education-oriented is final and therefore not subject to appeal based uponR.C. 3314.015(B)(3) .
{¶ 15} The Supreme Court recognized that the question of whether Brookwood was “education-oriented” involved four criteria under the education statute, three of which were “black and white.” Id. at ¶ 16. But the fourth criteria, whether Brookwood was “education-oriented,” required a nuanced approach for which the Supreme Court held that the subjective and substantive judgment of the board was involved; for this reason appellate rights existed so Brookwood would not be consigned to “an administrative abyss.” Id. at ¶ 16, 11. The majority at that time thus relied in part on Brookwood in applying this rationale to the subjective and substantive issues before ODE and BOE involving ECOT and for the purposes of establishing what the high court in Brookwood called “a check on that power.” Id. at ¶ 20.
{¶ 16} Also, in Brookwood, the high court found that it need not analyze Brookwood‘s case in light of the Tenth District Court of Appeals’ Carney, Shumway, and Heartland Jockey decisions, since specific
{¶ 17} Because the Supreme Court is a higher court than we, as a precedential matter we were not constrained to follow Heartland Jockey, Shumway, and Carney (even though not overruled in Brookwood) when our then majority distinguished them and construed what is meant by the word “final” for litigants’ appeals of ODE and BOE decisions. Under the various applications of both statutory and case law, I respectfully disagree with the new majority of the same panel that our decision is not erroneous, let alone obviously so, as the standard for reconsideration requires.
{¶ 18} Thus, I dissent and would deny appellees’ application for reconsideration.