[Cite as U.S. Bank v. Smith, 2023-Ohio-4492.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
U.S. BANK NATIONAL ASSOCIATION,
Plaintiff-Appellee,
v.
RONALD J. SMITH ET AL.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0111
Application for Reconsideration
Application to Reconsider Denial to Certify Conflicts
Application for En Banc Review
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Overruled.
Atty. David A. Wallace and Atty. Karen M. Cadieux, Carpenter Lipps & Leland LLP, for
Plaintiff-Appellee U.S. Bank National Association as Trustee (No Response Filed) and
Ronald J. Smith and Nancy L. Smith, Defendants-Appellants.
Dated: December 11, 2023
–2–
PER CURIAM.
{¶1} This matter is before us on three applications filed on September 29, 2023
by Appellants, Ronald J. Smith and Nancy L. Smith, acting pro se: (1) a second
application for reconsideration of our previous ruling on Appellants’ original application to
reconsider filed pursuant to App.R. 26(A)(1); (2) an application for en banc review filed
pursuant to App.R. 26(A)(2); and (3) an application for reconsideration of our decision
overruling Appellants’ motion to certify conflicts filed pursuant to App.R. 26(A). No
opposition brief was filed.
{¶2} On June 12, 2023, we affirmed the decision of the Mahoning County Court
of Common Pleas overruling Appellants’ second motion for relief from judgment filed
pursuant to Civ. R. 60(B), which challenged the distribution of the sale proceeds to U.S.
Bank, National Association, successor trustee to Bank of America, National Association,
successor by merger to LaSalle Bank, National Association, as trustee, on behalf of the
trust of the Bear Stearns Asset Backed Securities I Trust 2004-HE5, Asset-Backed
Certificates, Series 2004-HE5, in this foreclosure action. We concluded the arguments
asserted in Appellants’ second motion for relief from judgment could have been raised in
their original motion for relief from judgment, and as a consequence, were barred by res
judicata.
{¶3} On June 21, 2023, Appellants filed an application for reconsideration
pursuant to App. R. 26(A), and a motion to certify conflicts with other appellate districts
pursuant to App.R. 25. Appellants advanced various arguments in the pleadings, but did
not challenge our conclusion that the second motion for relief from judgment was
procedurally barred, or assert our application of res judicata was in conflict with the
decisions of other Ohio appellate courts. Accordingly, we overruled both the application
for reconsideration and motion to certify conflict.
{¶4} Undaunted, Appellants currently seek reconsideration of our decision
overruling their first application for reconsideration, as well as reconsideration of our
decision overruling their motion to certify conflicts. An application for reconsideration
must call to the attention of the appellate court an obvious error in its decision or point to
an issue that was raised to the court but was inadvertently either not considered at all or
Case No. 22 MA 0111
–3–
not fully considered. Juhasz v. Costanzo, 7th Dist. Mahoning No. 99-C.A.-294, 2002 WL
206417, (Feb. 7, 2002).
{¶5} We have previously recognized App.R. 26(A) does not provide for second
or successive reconsiderations of our final judgment in an appeal. State v. Wellington, 7th
Dist. Mahoning No. 14 MA 115, 2015-Ohio-2754, ¶ 6; State v. Dew, 7th Dist. Mahoning
No. 08 MA 62, 2014-Ohio-4042, ¶ 6; State v. Davis, 7th Dist. Mahoning No. 10 MA160
(Jan. 12, 2012 J.E.). The Ohio Supreme Court reached the same conclusion with respect
to successive applications to reopen under App.R. 26(B). State v. Peeples, 73 Ohio St.3d
149, 1995-Ohio-36, 652 N.E.2d 717 (1995). Accordingly, Appellants’ second application
for reconsideration of our decision on the merits is overruled.
{¶6} With respect to the application for reconsideration on the motions to certify
conflicts, an application for reconsideration is not designed for use in instances where a
party simply disagrees with the conclusions reached and the logic used by an appellate
court. State v. Chapman, 7th Dist. Mahoning No. 20 MA 0032, 2021-Ohio-2015, ¶ 3,
appeal not allowed, 164 Ohio St.3d 1406, 2021-Ohio-2742, 172 N.E.3d 176, ¶ 3. In the
application for reconsideration, Appellants simply reassert the same arguments originally
advanced in the motion to certify conflict. Accordingly, the application for reconsideration
on our decision overruling the motion to certify conflicts with other appellate districts is
overruled.
{¶7} Finally, Appellants request, for the first time, en banc consideration of their
appeal. App.R. 26(A)(2)(c), reads in relevant part, “[t]he rules applicable to applications
for reconsideration set forth in division (A)(1) of this rule, including the timing
requirements, govern applications for en banc consideration.” App.R. 26(A)(1)(a) reads,
in relevant part, “[a]pplication for reconsideration of any cause or motion submitted on
appeal shall be made in writing no later than ten days after the clerk has both mailed to
the parties the judgment or order in question and made a note on the docket of the mailing
as required by App. R. 30(A).” Therefore, the application for en banc consideration was
untimely filed.
{¶8} Moreover, “[e]nlargement of time to file an application for reconsideration or
for en banc consideration pursuant to App. R. 26(A) shall not be granted except on a
showing of extraordinary circumstances.” App. R. 14(B). Appellants have not asserted
Case No. 22 MA 0111
–4–
any extraordinary circumstances in their application. Accordingly, the application for en
banc consideration is overruled.
{¶9} For the foregoing reasons, Appellants’ applications are overruled.
JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 22 MA 0111