[Cite as Thyroff v. Nationwide Mut. Ins. Co., 2016-Ohio-5715.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Louis E. Thyroff, :
Plaintiff-Appellant, :
v. : No. 15AP-1043
(C.P.C. No. 14CV-1723)
Nationwide Mutual Insurance Company, :
(REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 8, 2016
Leickly Law, and James R. Leickly, for appellant.
Bricker & Eckler LLP, Quintin F. Lindsmith, and Ali I. Haque,
for appellee.
ON APPLICATION FOR RECONSIDERATION,
APPLICATION FOR EN BANC CONSIDERATION, AND
MOTION TO CERTIFY A CONFLICT
TYACK, J.
{¶ 1} Plaintiff-appellant, Louis E. Thyroff, has filed an application for
reconsideration of our decision in Thyroff v. Nationwide Mut. Ins. Co., 10th Dist. No.
15AP-1043, 2016-Ohio-4634, an application for en banc consideration, and a motion for
an order certifying a conflict between our decision in Thyroff and the decision of the Fifth
District Court of Appeals in Tabler v. Martin, 5th Dist. No. 2008CA00131, 2009-Ohio-
1346. Defendant-appellee, Nationwide Mutual Insurance Company ("Nationwide") has
filed a combined memorandum in opposition, and the matter is ripe for review. For the
reasons that follow, Thyroff's applications and motion are denied.
No. 15AP-1043 2
I. APPLICATION FOR RECONSIDERATION
{¶ 2} When presented with an application for reconsideration filed pursuant to
App.R. 26, an appellate court must determine whether the application "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." Columbus v. Hodge, 37 Ohio App.3d 68 (10th Dist.1987), paragraph
one of the syllabus. Reconsideration will be denied where the moving party simply seeks
to "rehash the arguments [the party] made in its appellate brief." Garfield Hts. City
School Dist. v. State Bd. of Edn., 85 Ohio App.3d 117, 127-28 (10th Dist.1992). An
appellate court will not grant " '[a]n application for reconsideration * * * just because a
party disagrees with the logic or conclusions of the appellate court.' " State v. Harris, 10th
Dist. No. 13AP-1014, 2014-Ohio-672, ¶ 8, quoting Bae v. Dragoo & Assocs., Inc., 10th
Dist. No. 03AP-254, 2004-Ohio-1297, ¶ 2.
{¶ 3} Thyroff argues that reconsideration is necessary because this court did not
properly apply the doctrine espoused in Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d
488, 491 (2001), that "res judicata is not a shield to protect the blameworthy."
{¶ 4} Contrary to Thyroff's assertion, this court did consider this argument. We
both noted the standard and that Thyroff's "major contention on appeal" was "that
Nationwide behaved reprehensibly by destroying his personal files and, therefore, it
should not be permitted to benefit from the doctrine of res judicata." Thyroff at ¶ 32. We
also noted that the doctrine of "[r]es judicata does not apply where fairness and justice
would not support it." State v. Harding, 10th Dist. No. 13AP-362, 2014-Ohio-1187, ¶ 30,
citing Davis at 491.
{¶ 5} This court then rejected Thyroff's claim that he should be allowed to come
to Ohio to bring the same claims that were fully and fairly litigated in New York. We
discussed the numerous opportunities Thyroff had to litigate for the monetary equivalent
of the property that was destroyed, and we concluded that fairness did not dictate that
Thyroff should be allowed to start over in Ohio after spending years litigating in New
York. Thyroff at ¶ 34.
{¶ 6} Thyroff also claims that this court erred in finding his breach of contract
claim was barred by res judicata because the Ohio claim and his New York claim required
No. 15AP-1043 3
different proofs. Thyroff characterized his Ohio claim for destruction of his files as one for
breach of contract, and he characterized his New York claim for destruction of his files as
one for conversion. In the New York action, Thyroff sought the return of his personal files
that Nationwide allegedly converted. In the Ohio action, Thyroff sought money damages
for the value of the personal files that were destroyed. We noted that whether Nationwide
took the files and refused to return them or whether Nationwide took the files and
destroyed them, under New York law, Thyroff's claim was one for conversion. Id. at 27.
Thus, in bringing the Ohio action, Thyroff attempted to move to a new forum and
relitigate under a different legal theory, the exact conduct that gave rise to his
unsuccessful action in New York. Id. at ¶ 28.
{¶ 7} Thyroff has failed to point to any obvious error that we failed to consider.
As a result, we deny the application.
II. APPLICATION FOR EN BANC CONSIDERATION
{¶ 8} Thyroff has moved this court to consider this case en banc, pursuant to
App.R. 26(A)(2). An en banc proceeding is one in which all full-time judges of a court
who have not recused themselves or otherwise been disqualified participate in the hearing
and resolution of a case. App.R. 26(A)(2)(a); McFadden v. Cleveland State Univ., 120
Ohio St.3d 54, 2008-Ohio-4914, ¶ 10. The purpose of en banc proceedings is to resolve
conflicts of law that arise within a district. App.R. 26(A)(2)(a); McFadden at ¶ 10, 15-16.
These intradistrict conflicts arise when different panels of judges hear the same issue, but
reach different results. Id. at ¶ 15. This "create[s] confusion for lawyers and litigants and
do[es] not promote public confidence in the judiciary." In re J.J., 111 Ohio St.3d 205,
2006-Ohio-5484, ¶ 18. An abuse of discretion standard applies to decisions on whether to
grant en banc proceedings. Id. at ¶ 19.
{¶ 9} App.R. 26(A)(2)(a) states as follows:
Upon a determination that two or more decisions of the court
on which they sit are in conflict, a majority of the en banc
court may order that an appeal or other proceeding be
considered en banc. * * * Consideration en banc is not favored
and will not be ordered unless necessary to secure or maintain
uniformity of decisions within the district on an issue that is
dispositive in the case in which the application is filed.
No. 15AP-1043 4
{¶ 10} Thyroff argues that our prior decision is in conflict with Johns 3301 Toledo
Cafe, Inc. v. Liquor Control Comm., 10th Dist. No. 07AP-632, 2008-Ohio-394. Johns
3301 involved two administrative proceedings revoking an establishment's liquor license.
Both proceedings arose out of a 2002 sting operation in which the owner of a liquor store
suspected his brother was stealing liquor from the store and selling it to the sole
stockholder of the appellant, Johns 3301 Toledo Cafe. The liquor commission revoked
the liquor permit of Johns 3301 Toledo Cafe, but that revocation was subsequently
reversed by this court after finding prejudicial error because the theft occurred off-
premises from the site of the liquor license. Id. at ¶ 5.
{¶ 11} Meanwhile, in a separate action arising out of the same events, the liquor
commission revoked the appellant's license because the owner or his employee of Johns
3301 Toledo Cafe was convicted of receiving stolen property, a felony. That action came
before this court on appeal, and the appellant argued res judicata applied to bar the
second proceeding. Id. at ¶ 11.
{¶ 12} This court first recognized that the doctrine should not be used to shield the
Johns 3301 Toledo Cafe from facing the consequences of the felony conviction.
Id. at ¶ 32. This court then found that res judicata did not apply to bar the second
proceeding because the first proceeding involved citations from the 2002 sting operation
leading to a violation of Ohio Adm.Code 4301:1-1-52, but the second proceeding involved
a felony conviction that was not rendered until 2003, after the first action had been
commenced. Id. at ¶ 34. Moreover, liquor commission rules do not allow for amendment
of the notice of opportunity for hearing or for consolidating the two actions. Id. at ¶ 35.
{¶ 13} The Johns 3301 case does not create a conflict with the Thyroff case that
necessitates en banc review. Johns 3301 involved two separate proceedings under
different administrative code sections that could not be brought simultaneously because
the criminal conviction did not take place until after the initial proceeding was underway.
The Johns 3301 case is factually and legally distinct from the Thyroff case. We applied
the "no shield for the blameworthy" analysis in Thyroff and came to a different conclusion
based on the fact that Thyroff had multiple opportunities under New York law to bring all
his claims related to the destruction of his files. Only after years of litigation in New York
No. 15AP-1043 5
where he eventually lost on all counts did he seek to move to another forum and begin to
relitigate the same claim.
{¶ 14} Consequently, we deny the application for en banc review.
III. MOTION TO CERTIFY A CONFLICT
{¶ 15} Finally, Thyroff asks this court to certify a conflict between our decision in
in Thyroff and the decision of the Fifth District Court of Appeals in Tabler, pursuant to
App.R. 25.
{¶ 16} Article IV, Section 3(B)(4), of the Ohio Constitution governs motions
seeking an order to certify a conflict. It provides:
Whenever the judges of a court of appeals find that a
judgment upon which they have agreed is in conflict with a
judgment pronounced upon the same question by any other
court of appeals of the state, the judges shall certify the record
of the case to the supreme court for review and final
determination.
{¶ 17} In Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594 (1993), the Supreme
Court of Ohio held, pursuant to Article IV, Section 3(B)(4), Ohio Constitution and
S.Ct.Prac.R. III, "there must be an actual conflict between appellate judicial districts on a
rule of law before certification of a case to the Supreme Court for review and final
determination is proper." Id. at paragraph one of the syllabus. The court further stated:
[A]t least three conditions must be met before and during the
certification of a case to this court pursuant to Section 3(B)(4),
Article IV of the Ohio Constitution. First, the certifying court
must find that its judgment is in conflict with the judgment of
a court of appeals of another district and the asserted conflict
must be "upon the same question." Second, the alleged
conflict must be on a rule of law--not facts. Third, the journal
entry or opinion of the certifying court must clearly set forth
that rule of law which the certifying court contends is in
conflict with the judgment on the same question by other
district courts of appeals.
(Emphasis sic.) Id. at 596.
{¶ 18} Thus, factual distinctions between cases are not a basis on which to certify a
conflict. Id. at 599. "For a court of appeals to certify a case as being in conflict with
another case, it is not enough that the reasoning expressed in the opinions of the two
No. 15AP-1043 6
courts of appeals be inconsistent; the judgments of the two courts must be in conflict."
State v. Hankerson, 52 Ohio App.3d 73 (2d Dist.1989), paragraph two of the syllabus.
{¶ 19} Here, Thyroff asserts that the rule of law upon which a conflict exists is as
follows:
For res judicata purposes, where the Ohio Supreme Court
doctrine that res judicata is "a rule of fundamental and
substantial justice" and is not to be used as a "shield to protect
the blameworthy" is at issue, does the doctrine mandate a
separate, independent analysis and does that analysis focus on
the conduct of the person or entity asserting the defense of res
judicata?
(Thryroff Motion to Certify a Conflict at 3.)
{¶ 20} Tabler involves two loans that Carrie Tabler made to appellants, her niece
and her niece's husband, that they used to purchase some real property. Tabler at ¶ 2.
The first loan was for $54,000 and was secured by a promissory note that provided for a
lump-sum payment 90 days after execution. Id. The appellants did not repay the loan
within the time set forth in the note. Id. A little over one month after making the first
loan, Tabler loaned the appellants another $104,000, which loan was also secured by a
promissory note. Id. at ¶ 3. In order to make the loan, Tabler withdrew the funds from an
annuity, incurring a $4,000 penalty. Id. The appellants repaid $100,000 of the loan but
did not reimburse Tabler for the $4,000 penalty. Id.
{¶ 21} Tabler filed suit in municipal court to recover the $4,000 fee from the
$100,000 loan. Id. at ¶ 4. At the time she filed suit, the appellants were in default on the
$54,000 loan. Id. at ¶ 5. The municipal court found the $100,000 loan had been satisfied
by the repayment of the $100,000 along with a notation on the promissory note
indicating the note had been cancelled. Id. at ¶ 4.
{¶ 22} Approximately one year later, Tabler filed suit in common pleas court for
the money owed on both loans, later amended to just the money owed on the $54,000
loan. Id. at ¶ 6. The appellants asserted that the claim was barred by res judicata and
collateral estoppel. Id. at ¶ 7. The trial court entered judgment for Tabler, and the
appellants appealed contending that both loans arose out of a common nucleus of facts
and that the $54,000 loan was in default at the time of the first litigation. Id. at ¶ 8, 12.
No. 15AP-1043 7
{¶ 23} The court of appeals found that the appellants failed to demonstrate that the
two loans arose from the same transaction. Id. at ¶ 15. It found that each loan was a
separate transaction separated in time and evidenced by the execution of separate
promissory notes. Id.
{¶ 24} The court then noted that res judicata is not a shield for the blameworthy,
stated that it is to be applied in particular situations as fairness and justice require, and is
not to be applied so rigidly as to defeat the ends of justice or to work an injustice.
Id. at ¶ 16. The court then concluded that the trial court did not err in finding the action
was not barred by the doctrine of res judicata. Id. at ¶ 17.
{¶ 25} We cannot find a conflict between the rule of law espoused in Tabler as
compared to Thyroff. Both courts applied the same analysis, but came to different
conclusions based on the factual differences in the cases.
{¶ 26} As the judgments from Thyroff and Tabler are not in conflict, we deny the
motion to certify a conflict.
Application for reconsideration denied;
application for en banc consideration denied;
motion to certify a conflict denied.
DORRIAN, P.J., and HORTON, J., concur.
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