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IN THE SLTPREME COURT OF OHIO
CASE. NO.
IN RE: L.B., a Minor Child
Michelle ComstockPlaintiff-Appellant,
Vs.
Kelly BurkDefendant-Appellee
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ON APPEAL FROM THE OFillO ELEVENTH DISTRICTLA:KF. COUNTY CASE NO. 2011-L-117
NOTICE OF APPEAL OF PLAINTIFF-APPELLANT MICHELLE COMSTOCK
Mary Beth Ciocco, L.L.C.By: Mary Beth Ciocco (0063737)Counsel of Record159 CrockerPark, 4t" FloorWestlake, Ohio 44145(216) 832-4997(440) 345-5275 Fax
,-,lll^cfCt ill.^c 1+?cct.).c('.3n1
Attorney for Plaintiff-Appellant
Thomas IVIcCorznack (0015570)815 Superior Avenue, Suite 1915Cleveland, Ohio 44114(? 16) [email protected]
Attorney for Defendant-Appellee
;n
CLERK OF COURTSUPREME C^^^ E'^" OF O^^IO
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NOTICE OF APPEAL- - ------ - ------- ----
Not.ice is hereby served that the Plaintiff Appellant, Michelle Comstock, is
seekii-ig further review of the Eleventh District Court's decision in CaseNo, 2011-L-117
on May 30, 2012 aild further review of Plaintiff-Appellant's Motion for Reconsideration
of that decision filed on January 14, 2013 that was denied by the court on June 3, 2013.
'rhe Motion for Reconsideration was not denied for being untimely as it raised new issue
of lack of subject matter jurisdiction that was an extraordinazy circumstance for its late
filing. I'he Motion for Reconsideration was denied on its merits, not timeliness. Copies of
the Eleventh District Court of Appeals Opinion, the Motion for Reconsideration and the
Judgment Entry denying the Motion for Reconsideration are attached.
The appellate Court's ruling presents issues of public and great general
importanee. This case also involves the termination of parental rights.
Resp ully submitted,
s
Mary Beth Ciocco (0063737)Attorney for Plaintiff-Appellant
CERTIFICATE ®F SERVICE
A true copy of the forgoing Notice of Appeal was sent by email and by ordinaYy
mail on this 15ti' day of July, 2013 to the following:
Tl7omas McCormack (0015570)815 Superior Avenue, Suite 1915Cleveland, Ohio 44114(216) 664-0792tmc`a,tmc-law.net
Attorney for Defend.ant-Appellee
Attorney for Plaintiff-Appellant
IN RE.L.B., A MINOR CHILD
Civil Appeal from the Court01845.
Judgment: Affirmed.
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
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Gptl^^C sE NO. 2011-L-117
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Com as, Juvenile Division, Case No. 2010 CV
Joseph F. Safzgeber, P.O. Box 799, Brunswick, OH 44212 (For Appellant MichelleComstock).
Thomas A. McCormack, McCormack Family Law, 1915 The Superior Building, 815Superior Avenue, East, Cleveland, OH 44114 (For Appellee Kelly Burk).
TIMOTHY P. CANNON, P J.
(¶I) Appellant, Michelle Comstock, appeals the judgment of the Lake County
Court of Common Pleas, Juvenile Division, granting judgment as a matter of law in favor
of appellee, Kelly Burk. For the following reasons, we affirm.
{¶2} Comstock filed a complaint in the trial court alleging that she and Burk
were involved in a committed, personal relationship. The relationship commenced in
1995 and continued until approximately November 2003. Comstock alleged the
"relationship included the commitment to raise a child together. Thus, they arranged, on
more than one occasion, and using funds primarily provided by Comstock, for Burk to
APPENDIX 003
be artificially inseminated ('A.1 ') through the use of medical professionals at Crio-
Biology and the sperm donor bank at the Cleveland Clinic Foundation. Comstock was
an active participant in the insemfnation of Burk.°
{^3) Burk gave birth to a child, L B., on July 24, 2003. Comstock alleged that
although she was present for the birth of L B., Burk did not permit her to be added to his
birth certificate. Comstock further aileged that since the parties separated, she has
"consistently and continuously provided for jL.B J as a co-parent or in the same manner
that a parent would." Comstock alleged that she has provided financial support and
emotional nurturing to L.B. and has parficipated in important decisions regarding his
education, health care, religious upbringing, and extracurricular activities.
{¶$} In her complaint, Comstock asserted three separate claims for relief (1) to
be designated the legal parent pursuant to R.C. 3109.04; or, in the alterative, (2) to be
granted the status of "shared parent," pursuant to R C 2151.23; or, in the alternative,
(3) to be granted rights of contact and companionship, pursuant to R.C. 3109 051.
Comstock attached a proposed "Shared Parenting Plan" to the complaint. Further,
Comstock attached an affidavit, averring, inter alia, that she tias provided for L.B
emotionally and financially and has participated in his appointments with various health-
care providers. Comstock further averred that recently her contact with L B. has been
limited, "changing in accordance with Burk's caprice "
{^-,5} Burk moved for dismissal or, in the alternative, summary judgment on May Cy
20, 2011. The magistrate ordered that a responsive pleading shall be filed within 14roY-.
days.
(T6} Comstock's counsel withdrew on May 21, 2011,. 10.4
2
APPENDIX 004
(^(7} A pretrial was heEd on July 8, 2011. As of that date, the magistrate
recognized that a responsive pleading had not been filed. At the pret(al, Comstock's
original trial counsel indicated that she would be appearing on her behalf, but she did w
not file a notice of appearance with the trial court.t.^
1118} The magistrate, in a.luly 12, 2011 judgment entry, stated:
{T9} "Upon consideration of the Motion to Dismiss or, in the alternative, for
summary judgment and the attached affidavit, the Magistrate finds that summary
judgment ought to be granted in this matter. The underlying complaint ought to be
dismissed,"
{T10} Comstock filed objestions to the magistrate's decision, which were
overruled by the trial court. The trial court adopted the magistrate's decision.
{!(111 Comstock appealed and assigned the foliowing error:
{^j12} The trial court erred by granting Defendant-Appellee biological
mother's motion for summary judgment and dismissing the
Application of Plaintiff-Appellant, biological mother's former partner,
which sought, in the alternative, to formally establish either (1)
parental rights of Plaintiff-Appellant with the minor chiid through
proof of the existence of contract between the parties, (2) shared
parenting of Plaintiff-Appellant with the minor child via the existence
of said contract; or (3) companionship and visitation rights of
Plaintiff-Appellant with the minor child
{T13} In order for a motion for summary judgment to be granted, the moving
party must demonstrate:
3
APPENDIX 005
{1114) (1) [N]o genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of
law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most
strongly in favor of the nonmoving party, that conclusion is adverse
to the party against whom the motion for summary judgment is
made. Mootispaw v. Eckstein, 76 Ohio St 3d 383, 385 (1996).
{$1S} Summary judgment will be granted if "the pleadings, depositions, answers
to interrogatories, wriften admissions, affidavits, transcripts of evidence, and written
stipulations of facts, if any, * * * show that there is no genuine issue as to any material
fact `*"." Civ.R. 56(C). Material facts are those that might affect the outcome of the
suit under the governing law of the case. Tumer v. Tumer, 67 Ohio St 3d 337, 340
( 1993), quoting Anderson v; LiberfyLobby, Inc., 477 U.S. 242, 248 (1986).
(S16) If the moving party meets this burden, the nonmoving party must then
provide evidence illustrating a genuine issue of material fact, pursuant to Civ,R. 56(E).
Dresherv. Burt, 75 Ohio St.3d 280, 293 (1996). Civ R. 56(E) provides:
{¶17} When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's
response, by affidavit or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial, If
the party does not so respond, summary judgment, if appropriate,
shall be entered against the party.
4
{^^a^Gs^0
^..:
APPENDIX 006
{TJ8} Summary judgment is appropriate, pursuant to Civ.R. 56(E), if the
nonmoving party does not meet this reciprocal burden
{1119} Appellate courts review a trial court's entry of summary judgment de novo.
SroNrn v, Scioto Cty. 8d. of Cocnrnrs., 87 Ohio App 3d 704, 711 (4th Dist.1993). "De
novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence to determine whether as a matter of law no
genuine issues exist for trial." Brewer v. Cleveland 8d: of Edn., 122 Ohio App.3d 378,
383 (8th Dist.1997), citing Dupler v. Mansfiefd Joumal, 64 Ohio St 2d 116, 119-120
(1980)
{¶20] In her motion to dismiss or, in the alternative, for summary judgment, Burk
argued that, pursuant to the Ohio Supreme Court's decision of In re Bonfielci, 97 Ohio
St.3d 387, "only natural or adoptive parents can participate in a shared parenting
agreement or be allocated parental rights." Burk noted that a party without any
biological connection to the child is not a parent for purposes of R.C. 3109 04(A)(2).
Second, Burk maintained that R C 3109.051(B)(1) is not applicable to the instant case,
as R.C. 3109 051(B)(1) applies only in a "divorce, dissolution of marriage, legal
separation, annulment, or child support proceedings that involves a child," Third, Burk
acknowledged that according to In re Bonfield, supra, at ¶48, "[p]arents may waive their
right to custody of their children and are bound by an agreement to do so."
{T121} Burk attached to her motion an affidavit stating, inter alia, that she
discussed with Comstock having a child but "made it clear to [Comstock] that the
decision to have a child was [her] decision." Burk averred that even when asked by
Comstock to sign a "writing granting [Comstock] legal rights" to L B., she refused Both
5
^
crZb
APPENDIX 007
before the birth and after the birth of L B., Comstock requested Burk to execute a
written agreement assigning custodial rights to her, but each time Burk informed
Comstock that she would not voluntarily relinquish any parental or custodial rights.
{^22} On appeal, Comstock argues that a genuine issue of material fact exists
regarding whether it is in the best interest of L.B. to have formal companionship and
visitation established pursuant to R.C. 3109.051(B) and/or R C. 2151.23. We disagree.
{q(23) Initially, we note that R.C. 3109.04 is not applicable to the instant fact
pattem. In the case of !n re Bonfield, supra, the Ohio Supreme Court reviewed a fact
pattern involving partners in a same-sex relationship, Teri J. Bonfield and Shelly M.
Zachritz. During their relationship, Teri adopted two children and also gave birth to
three children, through anonymous artificial insemination. Sheily actively participated in
both the decision to adopt and in the births of the children through artificial insemination.
The Ohio Supreme Court recognized that, "(n]otwithstanding her role as the primary
caregiver for their children, Sheliy has no legally recognized rights with regard to [the
children]." ld. at ¶7 The Bonrleld Court found that Shelly was not within the °narrow
class of persons who are statutorily defined as parents for purposes of entering a
shared parenting agreement" and, therefore, did not qualify as a parent pursuant to R.C.
3109 04. Id. at ^34, Likewise, Comstock is not a parent pursuant to R.C. 3109 04.
{^24} Next, R.C. 3109.051(B) is also inapplicable to the instant scenario. This
court, in Parav. Winner, 11th Dist. No. 92-A-1759, 1993 Ohio App. LEXIS 3358, "'4,
stated that "R.C. 3149,051 allows a nonparent to move for visitation rights in a
proceeding for divorce, dissolution, legal separation, annulment or child support The
statute does not include a custody proceeding ° In the absence of one of the above-
0
CD^mrs^̂^
Vr
APPENDIX 008
mentioned events, the juvenile court would not have jurisdiction under R.C. 3109.051 to
award visitation to Comstock, a nonparent.
(1(25} The Ohio Supreme Court, in In re Perales, 52 Ohio St.2d 89 (1977),
discussed the standard to use in custody actions between a parent and a nonparent.
The Court stated:
(¶25) In an R.C. 2151.23(A)(2) child custody proceeding between a
parent and a nonparent, the heanng officer may not award custody
to the nonparent without first making a finding of parental
unsuitability-that is, without first determining that a preponderance
of the evidence shows that the parent abandoned the child, that the
parent contractually relinquished custody of the child, that the
parent has become totally incapable of supporting or caring for the
child, or that an award of custody to the parent would be
detrimental to the child. ld. at syllabus.
{^27} In her motion to dismiss or, in the alternative, for summary judgment, Burk
presented an affidavit that averred she did not contractually relinquish her parental or
custodial rights, and she has repeatedly refused to sign any agreement presented by
Comstock. Further, Burk averred that Comstock had "no involvement in deciding where
[L.B.] lives as [sheJ relocated based on [her] decision alone or where [l..R.] attended
school."
t¶281 Comstock, as the nonmoving party, provided no evidence illustrating a
genuine issue of material fact pursuant to Civ.R 56(E); in fact, Comstock failed to fiie a
response to Burk's motion. In addition to failing to file a response, Comstock, in her
7
^
APPENDIXoOg
petition, neither alleged that Burk contractually relinquished custody of L.B nor that
Burk's conduct demonstrated relinquishment of custody. See, e.g., In re Mullen, 185
Ohio App.3d 457, 2009-Ohia-6934, 1111-12 (1st Dist.). There is simply no evidence in
the record that demonstrates Burk as "unsustable°; Burk continues to care for and
support L.B, and has not contractually relinquished custody of him.
(1129) As aptly stated by the Second District:
{^30} [Wje know of no Ohio law that allows for 'relinquishment' to occur in
a situation where a parent allows a non-parent to be a part of the
child's life while that parent still maintains care and support. Under
current Ohio law, there is nothing preventing a parent from
terminating a relationship between a child and a non-parent who
has no visitation rights, Despite the questionable motivation behind
Jones' action of breaking the strong bond between Dvorak and
Cheyenne preventing Dvorak from visiting with Cheyenne, Dvorak
failed to provide evidence that Jones was `unsuitable.' In re Jones,
2d t0ist. No. 2000 CA 56, 2002-Ohio-2279, ¶31
{T,^31} Based on the opinion of this court, the judgment of the Lake County Court
of Common Pleas, Juvenile Division, is hereby affirmed.
CYNTHIA WESTCOTT RICE, J,
MARY JANE TRAPP, J,
concur.
8
APPENDIX 010
STATE OF OHIO ) IN THE COURT OF APPEALS)SS.
COUNTY OF LAKE ) ELEVENTH DISTRICT
IN RE: J DGMENT ENTRYL.s., A MINO HILD. ^ ^`-^ p
GflURT ^ 39 2^12 G SE NO. 2011-L-117
r KEi^^Y
G1^G^ G^,iii"( CY10LAK^ G
For the reasons stated in the opinion of this court, appellant's assignment
of error is without merit. It is the judgment and order of this court that the
judgment of the Lake County Court of Common Pleas, Juvenile Division, is
affirmed.
Costs to be taxed against appellant.
P ___f ING Jl1 F TIMOTHY P. CANNON
FOR THE COURT
(=-C^C)W
APPENDIX 011
IN THE COURT OF APPEALSELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
CASE NO. 2011-L-117
IN RE: L.B., A MINOR CHILD
Michelle Comstock,Plaintiff-Appellant
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Kelfy Burk,Defendant-Appellee
APPELLANT-PLAINTIFF'S MOTION FOR RECONSIDERATION
Mary Beth Ciocco, L.L.C.By: Mary Beth Ciocco (0063737)159 Crocker Park, 4th FloorWestlake, Ohio 44145(216) 832-4997 phone(440) 345-5275 faxmbc mbciocco.com----^---------
Thomas McCormack (0015570)815 Superior Avenue, Suite 1915Cleveland, Ohio 44114(216) 664-0792tmc(@,tmc-Iaw.net
Attorney for Defendant-Appellee
Attorney for Plaintiff-Appellant
APPENDIX 012
Now comes the Plaintiff-Appellant, by and through the undersigned
counsel, and hereby submits her Motion for Reconsideration, pursuant to App. R.
26(A) and App. R. 14(B). Plaintiff-Appellant has extraordinary circumstances as
per App. R. 14(B) for the filing her Motion for Reconsideration at this time, and
presents an issue of sufficient importance and an obvious error that was not
previously argued - that this Court lacked subject matter jurisdiction to hear the
appeal. Therefore, this Court should entertain this Motion for Reconsideration.
App. R. 14 states that an enlargement of time to file an Application for
Reconsideration pursuant to App. R. 26(A) shall not be granted except for a
showing of extraordinary circumstances. Further, the Ohio Supreme Court held
that a motion for reconsideration can be entertained even though it was filed
beyond the ten-day limit if the motion raises an issue of sufficient importance to
warrant entertaining it beyond the time limit. State v. Boone (1996), 114 Ohio
App.3d 275, 277, 683 N.E.2d 67. One court held a motion for reconsideration
that raises an issue of sufficient importance may warrant a court entertaining it
even if filed far beyond the ten-day limit as set in App. R. 26(A) because the time
limit is not jurisdictional. Carroll v._Feiel, 1 Ohio App:3d 145.
In the instant case, this appellate court lacked subject matter jurisdiction to
hear the case because the two judgments from which the Plaintiff appealed were
not final and appealable and one judgment was void. These arguments were not
presented on appeal.
APPENDIX 0132
PlaintifF Appeilant's Notice of Appeal, filed on August 30, 2011, stated that
she was appealing from the Judgment Entry of July 28, 2011. The July 28, 2011
Judgment Entry adopted the decision of the Magistrate, but did not rule on the
Plaintiffs objections to decision. On September 2, 2011, the trial court issued a
second Judgment Entry, this time specifically ruling on the Plaintiffs objections.
Plaintiff-Appellant's Brief before this Court mistakenly stated that the appeal
followed the September 2, 2011 Judgment Entry, even though the Notice of
Appeal was filed before the September 2, 2011 Judgment Entry. This appellate
court's issued a decision on May 30, 2011, in which it stated that Plaintiffs
Objections to the Magistrate's Decision were overruled (in the September 2,
2011 Judgment Entry) and thereafter ruled on that entry.
However, the September 2, 2011 Judgment Entry that overruled the
objections is void. It is well settled in Ohio law that once an appeal is filed, the
trial court has limited jurisdiction over a case. Once an appeal has been taken
from a judgment of a trial court, that court only retains authority to take actions
which are not inconsistent with the jurisdiction of the appellate court. In other
words, the trial court is divested of all jurisdiction except to act in aid of the
appeal. Wif_ loug._hby-Eastlake City School District v. Lake County Court of
Common Pleas (April 21, 2000), Lake County App. 99-L-1 30, unreported 2000
WL 522456 *4; citing McCauly v. Smith (1998), 82 Ohio App.3d 393, 395; Yee v.
Erie County Sheriff's Department (1990), 51 Ohio St.3d 43,44.
Further, a trial court has no jurisdiction to rule upon objections to a
Magistrate's Decision after the filing of a Notice of Appeal. In Uiery v. Utq!y
APPENDIX 0143
(October 7, 2011), Clark County App. 2009-CA-12, unreported 2011 WL
4711874, the court stated, "Once a notice of appeal is filed, the trial court has
limited jurisdiction over the case", quoting Arthur v. Trimmer, Delaware App. No.
02CA06029, 2003-Ohio-2034, ¶ 12. Further, "the review and determination of
objections to a Magistrate's Decision is inconsistent with an appeal because
objections are directed at the substance of the judgment appealed and the issues
raised on appeal . . . Therefore, once a notice of appeal is filed, a trial court lacks
jurisdiction to consider objections to a Magistrate's Decision." Id, at ¶ 13, Ytery at
*1.
As such, the September 2, 2012 Judgment Entry, which was filed after the
August 30, 2011 Notice of Appeal, is void as the trial court lacked subject matter
jurisdiction to consider the objections to the Magistrate's Decision and to issue a
judgment that was not in aid of the appeal.
Now we are left with the trial court's Judgment Entry of July 28, 2011. This
Judgment Entry was not final and appealable. Juv. R. 40(D)(4)(d), which is akin
to Civ. R. 53(E)(4)(b), states that, "if one or more objections to a magistrate's
decision are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the objected
matters to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law."
A long line of cases in Ohio state that a court shall rule on objections to a
Magistrate's Decision, and that a judgment that affirms a Magistrate's Decision
without ruling on the objections is a non-final order, and therefore the appellate
4 APPENDIX 015
court lacks jurisdiction to hear the case. A 2011 amendment to App. R. 4 now
distinguishes between post-judgment objections and pre-judgment objections as
to the finality of a judgment that does not expressly rule upon them. Since the
instant case involves pre-judgment objections, it is not affected by this
amendment.'
On May 21, 2012, this Court, in Cireddu v. Clough, Lake County App.
201 1-L-121, unreported 2012 WL 1820911, discussed a judgment entry that was
not final because it did not properly adopt the Magistrate's Decision. The
judgment was remanded, and upon remand, the trial court properly adopted the
Magistrate's Decision and also expressly ruled upon pending objections to the
Magistrate's decision. This Court stated ¶31, "since the trial court has ruled on
the objection and stated that it undertook an independent review of the
magistrate's decision, its judgment is final and appealable and cannot be said
that the court failed to comply with the requirements of Juv. R. 40(D)(4)(d).
In U.S. Bank, N.A. v. Heller (September 1, 2011), Cuyahoga County App.
3860637, unreported 2011 WL 3860637, the defendant filed timely objections to
the Magistrate's Decision. The trial court adopted the decision but failed to rule
on the pending objections. On appeal, the court dismissed, stating that the
judgment was not a final order because it failed to even state that it had
considered the objections, let alone overrule them. The court stated, "under Civ.
R. 53(D)(4)(d), if one or more objections to a magistrate's decision are timely
filed, the court shall rule on those objections. This court has interpreted that
1 The 2012 Staff Note makes clear that the amendment does not apply to the instant
5 APPENDIX 016
language as mandatory, i.e. a trial court is required to explicitly overrule or
sustain any timely objections." ¶4.
The Eleventh District has ruled the same. In Mather v. Mather (March 31,
1992), Geauga County App. 91-G-1647, unreported 1992 WL 86564, the
appellant filed timely objections to the Magistrate's Decision, but the court later
adopted the decision without addressing the objections. The Mather court stated,
"this court has consistently held where a judgment entry does not dispose of a
party's timely objections, such an entry is interlocutory and is not a final
appealable judgment under O.R.C. 2505.02, and dismissed the case. See also
Gainor v. Gainor (August 2, 1991), Lake County App. 90-L-15-155, unreported
1991 WL 147416; Lynch v. Lynch, December 28, 2007, Warren County App.
CA2006-12-145, 2007-Ohio-7083; Drummond v. Drummond (February 6, 2003),
Franklin County App. 02AP-700, unreported 2003 WL 257506.
In addition raising the lack of subject matfer jurisdiction and a void
judgment is never waived and can be raised at any time. Painesville v. Lake
County Budget Commission (1978), 56 Ohio St.2d 282; The State ex rel. Tubbs
Jones v. Suster (1998), 84 Ohio St.3d 70, 75. This means that the lack of
jurisdiction can be waived at any time, even for the first time on appeal. Id. See In
re Byard (1996), 74 Ohio St.3d 294, 296. This is because jurisdiction is a
condition precedent to the court's ability to hear the case. If a court acts without
jurisdiction, then any proclamation by that court is void. The_State at 75; Patton v.
Diemer (1998), 35 Ohio St.3d 68. Because subject matter jurisdiction goes to the
power of the court to adjudicate the merits of the case, it can never be waived
6 APPENDIX 017
and may be challenged at any time. Aurora Loan Services LLC v. Cart (March
19, 2010) Ashtabula County App. 2009-A-0026, unreported 2010 WL 1057415.
Accordingly, the notion that res judicata bars a litigant from raising issues
that could have been raised at a prior point does not apply when the underlying
judgment is void for lack of subject matter jurisdiction. Aurora at *2, 117.
Finally, this Motion for Reconsideration is warranted and is timely under
these extraordinary circumstances. App.R. 26, which provides for the filing of an
application for reconsideration in this court, includes no guidelines to be used in the
determination of whether a decision is to be reconsidered. Matthews v. Matthews 198n 5
Ohio App.3d_1401 143 450 N.E.2d 278. The test generally applied is whether the
motion for reconsideration calls to the attention of the court an obvious error
in its decision or raises an issue for our consideration that was either not at all
or was not fully considered by us when it should have been. /d. 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. Owens (1996), 112 Ohio App.3d 334, 336, 678 N.E.2d 966. Rather, App.R. 26
provides a mechanism by which a party may prevent miscarriages of justice that could
arise when an appellate court makes an obvious error or renders an unsupportable
decision under the law. Id.
App.R. 26(A) sets a ten-day time limit for filing such a motion. Even
though the foregoing Motion is late, this Court may still consider it. The Ohio
Supreme Court has held that a motion for reconsideration can be entertained
even though it was filed beyond the ten-day limit if the motion raises an issue
7APPENDIX 018
of sufficient importance to warrant entertaining it beyond the time limit.
State v. Boone ( 1996), 114 Ohio App.3d 275, 277, 683 N.E.2d 67. One court
ruled that a motion for reconsideration that raises an issue of sufficient importance
may warrant a court entertaining it even if filed far beyond the ten-day limit as set
in App. R. 26(A). The time limit is not jurisdictional. In this case, the lack of
subject matter jurisdiction is indeed an issue of sufficient importance.
For the foregoing reasons, since the September 2, 2011 Judgment Entry
is void ab initio, and since the July 28, 2011 Judgment Entry failed to address the
pending objections to the Magistrate's Decision, the July 28, 2011 Judgment
Entry was interlocutory and a non-final order, and this appellate court had no
jurisdiction to hear the appeal in Case 2011-L-0117. This Motion for
Reconsideration presents sufficiently important issues and obvious errors that
warrant this Court to entertain it at this time. The lack of subject matter
jurisdiction is a sufficient reason to bring a Motion for Reconsideration at this time
and satisfies the "extraordinary" requirement of App. R. 14(B). A void judgment
and lack of subject matter jurisdiction may always be raised, and this Court's May
30, 2011 decision cannot stand for lack of jurisdiction.
8 APPENDIX 019
Wherefore, Plaintiff-Appellant moves this Court to vacate is May 30, 2011
decision and to remand this case to the trial court for a final ruling on her pending
Objections to the Magistrate's Decision.
itted,
Wary Beth Ciocco, L.L.C.By: Mary Beth Ciocco (0063737)Attorney for Plaintiff-Appellant159 Crocker Park, 4t" FloorWestlake, Ohio 44145mbc Ambciocco.com(216) 832-4997
CERTIFICATE OF SERVICE
A true copy of the foregoing M^' n f r Reconsideration was served uponthe following by USPS first class m i 11th day of Jan.uary, 2013.
Mary Beth Ciocco
Thomas McCormack (0015570)815 Superior Avenue, Suite 1915Cleveland, Ohio 44114(216) [email protected]
Attorney for Defendant-Appellee
9APPENDIX 020
STATE OF OHIO
COUNTY OF LAKE
IN RE: L.B., A Mi
))SS.
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COURT OFr, `s
^w^AURcEhd G. KEL?uYvLEnw dF Y ^y10
L.P.KE C_.^
!N THE COURT OF APPEALS
ELEVENTH DISTRICT
MENT ENTRY
NO. 2011-L-117
Appellant, Michelle Comstock, filed an application for reconsideration on
January 14, 2013, requesting this court to reconsider our decision of May 29,
2012, •in In re L.B., 11th Dist. No. 2011-L-117, 2012-Ohio-2356. Appellant
contends this court lacked subject matter jurisdiction to hear the case because
the judgment from which appellant appealed was not a final, appealable order.
Appellee, Kelly Burk, filed a response on February 19, 2013, and appellant
filed a reply on February 22, 2013.
Pursuant to App.R. 26(A), an "(ajpplication 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)." Enlargement of time to file an application for reconsideration shall not be
granted except on a showing of extraordinary circumstances. App.R. 14(B).
We note that appellant has filed her application for reconsideration nearly
eight months after the release of our decision. Appellant, however, contends that
"extraordinary circumstances" exist because this court lacked subject matter
jurisdiction.
APPENDIX 021
A recitation of the procedural posture in this case is warranted. Below, the
magistrate issued a decision on July 8, 2011. Thereafter, appellant filed timely
objections on July 21, 2011. After appellant's objections were filed, the trial court
issued a July 28, 2011 judgment entry adopting the decision of the magistrate. In
that entry, the trial court stated it had "independently reviewed the matter and
considered the Decision and the law[.]" Two days later, on August 1, 2011,
appellee filed a reply to appellant's objections.
On August 30, 2011, appellant filed a notice of appeal. The notice of
appeal stated that appellant was appealing the July 28, 2011 judgment entry.
Thereafter, on September 2, 2011, the trial court issued a judgment,
stating, inter alia, that it had made "an independent review of the file, objections,
reply, case law and statute authority. The Court finds that the Magistrate's
Decision is proper in all respect." The trial court explicitly overruled appellant's
objections and affirmed "the previous adoption of the Magistrate's Decision."
In her application for reconsideration, appellant maintains that the July 28,
2011 judgment was not a final, appealable order because the trial court failed to
explicitly overrule or sustain her timely objections to the magistrate's decision.
See Juv.R. 40(D)(4)(d). Appellant then contends that the September 2, 2011
judgment entry issued by the trial court was void because the notice of appeal
filed by appellant on August 30, 2011, divested the trial court of jurisdiction to rule
on appellant's objections.
App.R. 4(C), titled "premature notice of appeal," provides: "[a] notice of
appeal filed after the announcement of a decision, order, or sentence but before
entry of the judgment or order that begins the running
2 APPENDIX 022
treated as filed immediately after the entry." Here, appellant's notice of appeal
was filed before the final entry of judgment that otherwise would begin the
running of the 30-day appeal time period. Given the language used, it appears
the rule is self-executing in establishing a new date for the original notice of
appeal. Therefore, pursuant to App. R. 4(C), appellant's initial notice of appeal "is
treated as filed immediately after" the September 2, 2011 order.
We recognize that appellant's objections were pending when the trial court
issued its July 28, 2011 judgment. Appellant then appealed from that judgment;
however, the trial court issued a subsequent order overruling appellant's
objections and again affirming the decision of the magistrate on September 2,
2011. This order confirmed the previous decision of the trial court that had
previously been entered. As such, the provisions of App.R_ 4(C) apply.
Subsequent to the filing of this entry, appellant filed her appellate brief, and this
court issued its opinion. Appellant's objections and appellee's reply to those
objections were part of the appellate record upon our review.
Based on the foregoing, appellant's application for reconsideration is
hereby denied.
PRES ^ G JUDGE "s' MOTHY P. CANNON^
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O'TOOLE, J.,
concur.
3 APPENDIX 023
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