While I agree with the majority's opinion that the common pleas court lacked jurisdiction in this matter, I disagree with the majority's ruling as to the second, third and fourth assignments of error and, therefore, concur separately.
The issues presented by the second, third and fourth assignments of error, that is, the interpretation of R.C.3311.24, are not properly before this court. The issues presented by those assignments of error were neither raised nor litigated during the proceedings in common pleas court in 1989. Those proceedings dealt only with the issue of the sufficiency of the evidence to support the State Board's *Page 127 decision and not with any action, or lack of action, by the Cleveland or Garfield Heights school districts. Inasmuch as there is a declaratory judgment action pending in the Cuyahoga County Court of Common Pleas concerning the interpretation of R.C. 3311.24, that court has jurisdiction and, on the basis ofState ex rel. Phillips v. Polcar (1977), 50 Ohio St. 2d 279, 4 O.O.3d 445, 364 N.E.2d 33, this court cannot usurp that court's jurisdiction by proceeding to determine the merits of those issues. Further, it should be noted that this action was not brought as an injunction, nor did the court issue a mandatory injunction; rather, this action was a contempt action brought pursuant to R.C. 119.12. Therefore, while I would sustain the first assignment of error and reverse the judgment of the trial court, I would overrule the second, third and fourth assignments of error.
ON MOTION FOR RECONSIDERATION Decided September 15, 1992 PETREE, Judge.
Appellee, State Board of Education, has filed a motion under App.R. 26 requesting this court to reconsider its decision inGarfield Hts. City School Dist. v. State Bd. of Edn., supra. In our decision, we held that the trial court erred by sua sponte reopening the subject R.C. 119.12 appeal more than two years after the trial court affirmed the State Board's decision approving the transfer of the so-called Cranwood area school district territory into the Garfield Heights school district territory. See Garfield Hts. City School District v. State Bd.of Edn. (1990), 62 Ohio App. 3d 308, 575 N.E.2d 503, motion to certify overruled (1991), 60 Ohio St. 3d 708, 573 N.E.2d 671.
Appellee's motion for reconsideration challenges this court's decision in several respects. First, appellee argues that this court failed to consider the effect of certain inconsistent representations of law made by appellant's counsel. Second, appellee argues that this court erred in its interpretation of R.C. 3311.24 and 119.12.
The test generally applied to a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue that was not properly considered by the court in the first instance. Columbus v. Hodge (1987), 37 Ohio App. 3d 68,523 N.E.2d 515; Matthews v. Matthews (1981), 5 Ohio App. 3d 140, 5 OBR 320, 450 N.E.2d 278. Here, appellee has not pointed to any such error or issue. Indeed, appellee's arguments concerning this court's interpretation of R.C. 3311.24 and 119.12 essentially rehash the arguments appellee made in its appellate brief. We expressly rejected those arguments in our decision and we shall not discuss them *Page 128 again.6 This court did not, however, expressly discuss appellee's estoppel argument in our initial decision because it is meritless.
Appellee's estoppel argument is this: Because appellant's counsel made affirmative representations of law to the trial court about the effect of the trial court's affirmance of the board's transfer decision, appellee maintains that those representations should estop appellant from taking a contrary position in the court of appeals in this case. In particular, appellee contends that appellant's counsel, in connection with its application for a stay of the trial court's affirmance, represented to the trial court that the effect of the trial court's affirmance would necessitate an immediate transfer of the Cranwood area into Garfield Heights. So, appellee contends that appellant should not be heard in this appeal to argue the contrary.
Without citing a single case in support, appellee argues that the legal interpretation made by appellant's counsel in its motion for a stay should forever bar appellant from arguing an alternative or inconsistent position, even though this entire case is one of first impression in Ohio. At any rate, even if representations of law made by counsel could have a binding and preclusive effect, we must reject appellee's arguments on the facts presented. In actuality, the arguments made by appellant's counsel on the record never rose to the level of an affirmative representation that a transfer of territory was required if the common pleas court affirmed the State Board's decision. Rather, appellant's counsel zealously advocated that "implementation" of the State Board's decision would proceed if a stay was not granted and this would result in dire consequences for appellant. These statements are not inherently inconsistent with appellant's position taken in the instant appeal and do not misrepresent existing law.
For the foregoing reasons, defendant's motion for reconsideration is hereby denied.
Motion for reconsideration denied.
BOWMAN and TYACK, JJ., concur.
6 In a separate concurrence, Judge Bowman declined to interpret R.C. 3311.24 because she felt that the Cuyahoga County Court of Common Pleas was the court with jurisdiction over that issue. Therefore, appellee's arguments concerning the interpretation of R.C. 3311.24 are irrelevant with respect to Judge Bowman's analysis of this aspect of the case. *Page 129