JEZERINAC ET AL., APPELLEES, v. DIOUN ET AL., APPELLANTS.
No. 2020-0743
SUPREME COURT OF OHIO
February 24, 2022
Slip Opinion No. 2022-Ohio-509
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-509
JEZERINAC ET AL., APPELLEES, v. DIOUN ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Jezerinac v. Dioun, Slip Opinion No. 2022-Ohio-509.]
Appellate procedure—App.R. 26(A)(1)(c)—Motion for reconsideration of court-of-appeals decision—Requirement under Article IV, Section 3(A) of the Ohio Constitution that three judges “participate in the hearing and disposition” of each case includes any decision made on an application for reconsideration—When a member of an original appellate panel leaves the bench before a decision on a motion for reconsideration, the departing judge may be replaced by a new judge on the panel that is reconsidering the matter.
(No. 2020-0743—Submitted September 7, 2021—Decided February 24, 2022.)
APPEAL from the Court of Appeals for Franklin County, No. 18AP-479, 2020-Ohio-587.
{¶ 1} Ohio‘s appellate rules permit a party to ask a court of appeals to reconsider a prior decision and provide that the request “shall be considered by the panel that issued the original decision.”
{¶ 2} We hold that he may. A panel exists independently of the judges sitting on it at any given time. Accordingly, for purposes of reconsideration, the panel remains “the panel that issued the original decision” when a vacancy on a panel is filled by a successor. We therefore affirm the judgment of the Tenth District Court of Appeals.
I. A Decision, a Retirement, and A New Decision on Reconsideration
{¶ 3} This litigation centers around a soured business relationship between two partners, Ronald M. Jezerinac and Mo M. Dioun,1 who owned Barley‘s Brewing Company in Columbus. After appointing a receiver to manage the dissolution of the business, the trial court issued a decision that ordered the business be sold to Jezerinac.
{¶ 4} On appeal, the Tenth District Court of Appeals reversed the trial court‘s decision and ordered the receiver to entertain offers from all interested bidders. 2019-Ohio-726, 132 N.E.3d 238 (”Jezerinac I“). The case was heard by Judges Brunner, Horton, and Klatt. Judges Brunner and Horton concurred; Judge Klatt dissented. After the case was argued, but before the decision issued, Judge Horton announced his impending resignation. Judge Horton‘s resignation became effective on February 28, 2019, the same day the decision in Jezerinac I was released.
{¶ 6} In opposing reconsideration, Dioun argued that Judge Nelson should not participate in the reconsideration decision, because he did not sit on the original panel. The Tenth District disagreed, concluding that Dioun‘s position was contrary to “long-standing precedent and practice” and that “[w]hen a judge is replaced on a panel, the successor judge has the same responsibilities as his or her predecessor.” 2020-Ohio-587, 152 N.E.3d 430, ¶ 8, citing Holland v. State, 27 Ohio St.2d 77, 78, 271 N.E.2d 819 (1971). With Judge Nelson participating, the panel concluded that because Jezerinac I contained “obvious errors,” reconsideration was warranted. Id. at ¶ 4. The panel vacated the prior decision in Jezerinac I and issued a new decision affirming the judgment of the trial court. This time the panel majority consisted of Judges Nelson and Klatt, with Judge Brunner dissenting. Dioun sought reconsideration based upon Judge Nelson‘s participation, but the Tenth District denied the application.
{¶ 7} Having accepted discretionary review, we now turn to the question before us: is a panel “the panel that issued the original decision” when a member of that panel has resigned, retired, or died and is then replaced by his or her lawfully appointed successor? We hold that it is.
II. The Panel that Issued the Original Decision
{¶ 8} Dioun contends that
{¶ 9} Under normal circumstances, of course, the panel members that heard the original case would consider any application for reconsideration. The plain terms of
{¶ 10} Dioun urges us to declare that
{¶ 11} We are not convinced. Filling a vacancy on an appellate panel is required by the Ohio Constitution and consistent with our long-standing view that judicial authority rests with the judicial office and not with the individual filling that office. Indeed, our appellate rules recognize that a panel exists independently from the three individuals sitting on it and permit a judge‘s replacement when necessary.
A. The Ohio Constitution requires three judges to participate in the hearing and disposition of each case
{¶ 12} At the outset, Dioun‘s argument faces a big hurdle.
The state shall be divided by law into compact appellate districts in each of which there shall a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional
judges, three judges shall participate in the hearing and disposition of each case.
(Emphasis added.) We have read this provision to “mandate[] that appellate cases shall be heard by at least three judges to ensure that each case is properly reviewed.” (Emphasis sic.) McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 14.
{¶ 13} Dioun concedes that the Constitution requires that three judges must hear and dispose of each case, but he contends that this requirement was met when the initial panel issued its decision in Jezerinac I. The problem with this argument is that where a motion for reconsideration is filed, there is no final “disposition” of the case until the court of appeals rules on a timely-filed motion for reconsideration. Our rules explicitly provide a right to file for reconsideration, see
{¶ 14} Indeed, adoption of Dioun‘s position would unfairly disadvantage some litigants.
{¶ 15} Dioun raises a constitutional argument of his own, citing the requirement in
{¶ 16} The phrase “hearing the cause” in the constitutional provision is not a reference to oral argument. It is well understood that a court of appeals may “hear” a case without oral argument. See, e.g.,
B. Judicial authority is not personally held by any individual judge
{¶ 17} Not only is the replacement on a panel of a judge who has left the bench consistent with our Constitution, it also comports with our longtime understanding of the judicial role. A court‘s identity is wholly independent from the specific individuals who make up its personnel. Thus, a “court as an entity remains the same, regardless of any change in personnel.” Cincinnati v. Alcorn, 122 Ohio St. 294, 297, 171 N.E. 330 (1930).
{¶ 18} Our system is replete with examples of this principle. When a member of a court of appeals sits by designation in a district different from his
{¶ 19} The independent existence of courts and panels separate and apart from their particular members is crucial to the continuity of the judiciary itself. A judge exercises judicial authority only by virtue of the office he occupies during his active tenure on the bench. When a judge retires or dies, he is incapable of exercising judicial authority. Holland, 27 Ohio St.2d 77, 271 N.E.2d 819. The judicial authority belongs to the office, not the judge.
{¶ 20} Our appellate rules reinforce this understanding.
{¶ 21} Federal courts also recognize that it may at times be necessary to replace a member of a panel and that a panel exists separately from the identity of the judges who make up the panel. See, e.g.,
{¶ 22} Thus, we have little difficulty concluding that the Tenth District Court of Appeals acted within the bounds of the law when Judge Nelson replaced Judge Horton on the panel considering Jezerinac‘s application for reconsideration.
III. Conclusion
{¶ 23} The Ohio Constitution requires that appellate panels be composed of three judges and that three judges participate in the disposition of each case. When a judge leaves the bench, he may no longer exercise judicial authority. Therefore, it is appropriate to replace that judge on an appellate panel for purposes of deciding a motion for reconsideration. In such an event, the panel remains “the panel that issued the original decision” within the meaning of
Judgment affirmed.
ROBIN N. PIPER III, J., of the Twelfth District Court of Appeals, sitting for BRUNNER, J.
Hahn, Loeser & Parks, L.L.P., Marc J. Kessler, and Elisé K. Yarnell, for appellees Ronald M. Jezerinac Sr., Tiffany Sexton, FMKF, L.L.C., and Doug Sexton.
Barnes & Thornburg, L.L.P., Robert C. Folland, and Kyle P. Gerlach, for appellee Steven Skutch.
Bailey Cavalieri, L.L.C., James G. Ryan, Timothy A. Riedel, and Matthew T. Schaeffer, for appellee Brewery Real Estate Partnership.
Allen, Stovall, Neuman, Fisher & Ashton, L.L.P., Rick L. Ashton, and Jeffrey R. Corcoran; and David A. Kopech, for appellants.