Norman v. Kellie Auto Sales, Inc.

[Cite as Norman v. Kellie Auto Sales, Inc., 2020-Ohio-6953.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Justin Norman,                                       :

                 Plaintiff-Appellee,                 :
                                                                    No. 18AP-32
v.                                                   :          (C.P.C. No. 17CV-5681)

Kellie Auto Sales, Inc.,                             :         (REGULAR CALENDAR)

                 Defendant-Appellant.                :

                                            D E C I S I O N

                                   Rendered on December 30, 2020

                 On brief: Coffman Legal, LLC, and Matthew J.P. Coffman;
                 Bryant Legal, LLC, and Daniel I. Bryant, for appellee.

                 On brief: Law Offices of Thomas Tootle Co., LPA, and
                 Thomas Tootle, for appellant.

                              AND CONSIDERATION EN BANC
        ¶ 1 This case involves plaintiff-appellee, Justin Norman's, purchase of a vehicle
from defendant-appellant, Kellie Auto Sales, Inc. ("Kellie Auto"); Norman's attempted
return of the vehicle upon learning it was a rebuilt salvage; the parties' participation in
arbitration in an effort to resolve the dispute; the arbitrator's award in favor of Norman and
finding that Kellie Auto had knowingly committed an unfair or deceptive act under the
Consumer Sales Practices Act ("CSPA"); Kellie Auto's refusal to pay the award; Norman's
filing with the trial court for judgment and to confirm the arbitration award pursuant to
R.C. 2711.09; Kellie Auto's construing Norman's filing as an "action" under the CSPA and
R.C. 1345.092; and subsequent filing with the trial court of a notice of cure offer and
application to modify the arbitration award pursuant to R.C. 2711.11.
No. 18AP-32                                                                                                 2

           ¶ 2 The Franklin County Court of Common Pleas denied Kellie Auto's request to
modify the arbitration award and granted Norman's application to confirm the award; and
denied Kellie Auto's motion for relief from judgment; Kellie Auto appealed.1
           ¶ 3 On February 5, 2019, a three-judge panel of this court filed Norman v. Kellie
Auto Sales, Inc., 10th Dist. No. 18AP-32, 2019-Ohio-360 ("original decision"), reversing in
part and affirming in part the trial court's decisions.                  The panel sustained the first
assignment of error and reversed finding the trial court erred "when it refused to recognize
[Kellie Auto's] timely exercise of a 'right to cure' pursuant to R.C. 1345.092." Id. at ¶ 18.
Norman filed an application for reconsideration.
           ¶ 4 Subsequent to the filing of the original decision, one judge of the panel retired
and another judge resigned. The judge who was elected to the seat previously held by the
retired judge had been the trial judge on the case and therefore a conflict existed; in her
place, a judge of the court was randomly selected for the panel on reconsideration, joining
the judge who was appointed to fulfill the term of the resigned judge and the original judge
of the panel.
           ¶ 5 By a 2-1 majority, with the original author now in dissent, the panel granted
reconsideration, vacated the original decision, overruled the first assignment of error, and
affirmed the trial court's decisions. Norman v. Kellie Auto Sales, Inc., 10th Dist. No. 18AP-
32, 2020-Ohio-4311 ("first reconsideration decision"). The original panel member would
have denied reconsideration. In addition, the reconsideration panel majority overruled the
remaining assignments of error, including the second assignment of error, regarding the
trial court's affirming of the arbitrator's award of attorney fees, which the original panel had
declined to address determining it to be moot. Finally, the panel declined to grant
Norman's request to remand the decision to the trial court to consider his motion for post-
arbitration attorney fees.
           ¶ 6 On September 9, 2020, Norman filed an application for partial
reconsideration of the first reconsideration decision. Norman asks this court to reconsider
our ruling to decline to remand to the trial court Norman's motion for post-arbitration
attorney fees. On September 14, 2020, Kellie Auto filed an application for reconsideration
and an application for consideration en banc of the first reconsideration decision. Kellie

1   Kellie Auto appealed the trial court decisions filed November 30, December 11, 2017, and January 9, 2018.
No. 18AP-32                                                                                 3

Auto asks the court to reconsider its application of the criteria regarding reconsideration
and "void[ing]" of the asserted CSPA right to cure. Kellie Auto further requests the full
court consider the case en banc and argues the first reconsideration decision conflicts with:
(1) State v. Harris, 10th Dist. No. 13AP-1014, 2014-Ohio-672, (2) Hal v. State Dept. of Edn.,
10th Dist. No. 18AP-301, 2020-Ohio-204, and (3) the Norman original decision, 2019-
Criteria for Reconsideration
          ¶ 7 App.R. 26(A) provides a mechanism by which parties may prevent
miscarriages of justice that could arise when an appellate court makes an obvious error or
renders an unsupportable decision under the law. Harris at ¶ 8. When presented with an
application for reconsideration pursuant to App.R. 26(A)(1), an appellate court must
determine whether the application calls to the court's attention 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. Electronic Classroom of Tomorrow
v. State Bd. of Edn., 10th Dist. No. 17AP-767, 2019-Ohio-1540, ¶ 3, State v. Wade, 10th
Dist. No. 06AP-644, 2008-Ohio-1797, ¶ 2, discretionary appeal not allowed, 119 Ohio
St.3d 1415, 2008-Ohio-3880, cert. denied, Ohio v. Wade, 555 U.S. 1126 (2009), Matthews
v. Matthews, 5 Ohio App.3d 140 (10th Dist.1981). However, an application for
reconsideration is not intended for instances where a party simply disagrees with the logic
or conclusions of the court. State v. Burke, 10th Dist. No. 04AP-1234, 2006-Ohio-1026,
¶ 2. Furthermore, an application for reconsideration is not a means to raise new arguments
or issues. Electronic Classroom at ¶ 3, citing State v. Wellington, 7th Dist. No. 14 MA 115,
2015-Ohio-2095, ¶ 9.
Norman's Application for Partial Reconsideration
          ¶ 8 In his application for partial further reconsideration, Norman asks the court
to reconsider and vacate: (1) our statement that the trial court did not expressly rule on
Norman's motion for post-arbitration attorney fees, (2) our construction of the trial court
not having ruled on the motion as a denial of the same, and (3) our observation that the
trial court did affirm the arbitrator's award of an extra $1,000 for post-arbitration work.
(First Reconsideration Decision at ¶ 41.) Norman points us to the trial court's January 22,
2018 entry, filed after Kellie Auto filed the notice of appeal. In the entry, the trial court
No. 18AP-32                                                                                   4

              Defendant appealed the Court's 12/11/17 Decision and Entry
              on 1/10/18. Plaintiff filed his motion for attorney's fees on
              12/18/17. "When an appeal is taken from the [trial] court the
              latter court is divested of jurisdiction, except to take action in
              aid of the appeal, until the case is remanded to it by the
              appellate court." State ex rel. Special Prosecutors v. Judges,
              Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162
              (1978); see also Investors Reit One v. Investors Resort Motel
              Corp., 10th Dist. Franklin No. 80AP-476, 1980 Ohio App.
              LEXIS 13445, at * 5 (holding trial court loses jurisdiction as to
              the phases of the case appealed). As such, the Court releases
              the highlighted motion from its docket under the noted
              authorities. Plaintiff may re-file his motion if appropriate
              after the appeals process has concluded.

              IT IS SO ORDERED.

(Emphasis sic.) (Jan. 22, 2018 Entry.)
       ¶ 9 We acknowledge the trial court's January 22, 2018 entry and make no
determination as to the merits of any subsequent motion Norman may file in the trial court
(as, for example, with regard to appellate counsel fees). However, we deny Norman's
application for partial reconsideration as the trial court declined to rule on Norman's
motion before releasing the same, and as further recited in the first reconsideration
Kellie Auto's Application for Reconsideration
       ¶ 10 To begin, Kellie Auto argues this court should reconsider the first
reconsideration decision because it "failed to follow settled precedent when it used
reconsideration as a vehicle to re-hash the merits of [the original decision]" and because
"App.R. 26(A)(1) does not expressly authorize the [panel] to vacate the [original] decision
* * * via an application for reconsideration." (Kellie Auto's App. for Recon. at 2-3.) In short,
Kellie Auto contends our first reconsideration decision was improper because: (1) the
original decision was not "unsupportable under the law," and (2) reconsideration was
granted only because of the change of the appellate panel's composition.
       ¶ 11 First, we reject Kellie Auto's suggestion that "obvious error" can only be
defined as "unsupportable under the law." There is no settled precedent from this court
that defines "obvious error" as Kellie Auto suggests. The two cases cited by Kellie Auto—
Harris and Hal—did not define "obvious error." Both Hal and Harris stated only that
"App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that
No. 18AP-32                                                                                                    5

could arise when an appellate court makes an obvious error or renders an unsupportable
decision under the law." (Quotations omitted.) (Emphasis added.) Hal2 at ¶ 1, quoting
Harris at ¶ 8, quoting Corporex Develop. & Constr. Mgt., Inc. v. Shook, Inc., 10th Dist. No.
03AP-269, 2004-Ohio-2715, ¶ 2, quoting State v. Owens, 112 Ohio App.3d 334, 336 (11th
Dist.1996). This language does not define or limit to legally insupportable points of law
what is an obvious error for purposes of reconsideration pursuant to App.R. 26. Nor would
such a definition or limitation make sense. A panel could conceivably make any number of
obvious errors justifying reconsideration including a factual error, a procedural error, or an
error of law. Therefore, "obvious error" is not limited to "unsupportable under the law" but
can encompass other types of error as well.
        ¶ 12 Next, we reject Kellie Auto's arguments that: (1) App.R. 26(A)(1) provides no
authority for this court to vacate its own decisions, and (2) "[t]here is no justification for
why a decision from a second appellate panel, made up of two entirely new judges -- who
now form a majority -- should supersede the unanimous decision from the first panel."
(Kellie Auto's App. for Recon. at 9.)

2In its application for reconsideration, Kellie Auto referred us specifically to paragraph 8 in Harris which, as
noted above, uses the disjunctive "or" and stated "obvious error or renders an unsupportable decision under
the law." (Emphasis added.) In its application, Kellie Auto only generally cited to Hal and did not refer us to
any specific paragraphs therein. "The burden of affirmatively demonstrating error on appeal rests with the
[movant on reconsideration]." Miller v. Johnson & Angelo, 10th Dist. No. 01AP-1210, 2002-Ohio-3681, ¶ 2.
And, "[i]t is the duty of the [movant on reconsideration], not the appellate court, to construct the legal
arguments necessary to support the appellant's assignments of error." Bond v. Canal Winchester, 10th Dist.
No. 07AP-556, 2008-Ohio-945, ¶ 16. Accordingly, we would consider that Kellie Auto waived any argument
other than based on the language to which it specifically referred in Harris, using the disjunctive and stating
"obvious error or renders an unsupportable decision under the law." This same use of the disjunctive was
repeated three times in Hal: at ¶ 1, citing Harris, reconsideration is warranted " ' "when an appellate court
makes an obvious error or renders an unsupportable decision under the law." ' " (Emphasis added.); in ¶ 2,
reiterating the criteria and using the disjunctive "nor demonstrates the court made an obvious error or
rendered a decision unsupportable under the law." (Emphasis added.); in ¶ 3, concluding and using the
disjunctive "[w]e cannot see that our review of what the hearing officer found contains either obvious error or
was unsupportable under the law." (Emphasis added.) We will note, however, that in the summation of Hal,
the opinion discarded the disjunctive "or," and stated that the motion to reconsider raised "neither an obvious
error, i.e., that our decision was unsupportable under the law, nor an issue this court should have but did not
fully consider." (Italics sic.) Hal at ¶ 8. Nevertheless, Hal used the disjunctive three times within the body of
the text prior to using the i.e. as amplification, and our research has not revealed any other court using the
amplification i.e. in this context. Furthermore, most significantly, the Supreme Court of Ohio has also applied
and held as precedent the criteria using the disjunctive: "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." (Internal quotation omitted.) State v. Moore, 149 Ohio St.3d 557,
2016-Ohio-8288, ¶ 103, quoting Corporex at ¶ 2, quoting Owens at 336 (O'Donnell, C.J., concurring.) For
these reasons, we do not consider any conflict between Hal and the first reconsideration decision as to the
criteria for reconsideration. Therefore, we do not consider the use of "i.e." in the summation of Hal to be
settled precedent.
No. 18AP-32                                                                                6

       ¶ 13 Regarding authority to vacate a prior decision on reconsideration, we note
that such a limitation does not make sense when the purpose of reconsideration is to correct
an obvious error or address an issue that was either not considered at all or was not fully
considered when it should have been. It is true, however, that numerous cases of this court
offer different approaches when granting reconsideration. Some have expressly vacated
the earlier decision, some have not. Panels that granted reconsideration and reached the
opposite outcome have generally vacated the initial decision. See, e.g., State v. Lawson,
10th Dist. No. 12AP-53, 2013-Ohio-803. Even in cases in which the panel merely clarified
its reasoning on reconsideration and did not disturb the prior judgment of affirmance or
reversal, the panel has sometimes chosen to vacate its earlier decision and entry. See, e.g.,
Davis v. Hollins, 10th Dist. No. 17AP-716, 2019-Ohio-1789. Other panels have neglected to
expressly vacate their prior decision when granting reconsideration, even when
reconsideration altered not only the reasoning but also the extent of reversal and the
resulting instructions to the trial court. Wade (criminal), Grothaus v. Warner, 10th Dist.
No. 08AP-115, 2008-Ohio-6683 (civil). More predictably, a panel has not expressly vacated
its prior decision when granting reconsideration only to address a minor technical point
overlooked in the first instance. Appenzeller v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 17AP-747, 2018-Ohio-1698. Nevertheless, Kellie Auto has identified no decision from
this court—or from any court for that matter—that holds a panel may not vacate a prior
decision on reconsideration if the criteria for reconsideration have been met, and we are
not persuaded by Kellie Auto's argument regarding the same.
       ¶ 14 Regarding the majority of the reconsideration panel vacating the original
decision, we are mindful that the Supreme Court of Ohio recently accepted discretionary
appeal on the same issue: whether "under App.R. 26(A)(1)(c), an application for
reconsideration must be considered by the same three judges that considered the original
decision." Jezerinac v. Dioun, S.Ct. case No. 2020-0743, September 1, 2020 Entry, citing
Proposition of Law No. I. We are also mindful of Judge Brunner's thoughtful dissents in
Jezerinac v. Dioun, 10th Dist. No. 18AP-479, 2020-Ohio-587, and Jezerinac (Apr. 30,
2020) (memorandum decision). Nevertheless, until such time as the Supreme Court
decides the appeal, we follow long standing precedent and practice as outlined in Jezerinac,
2020-Ohio-587, at ¶ 8:
No. 18AP-32                                                                                 7

              When a judge is replaced on a panel, the successor judge has
              the same responsibilities as his or her predecessor. Holland v.
              State, 27 Ohio St.2d 77, 78 (1971) ("[t]he judicial power of a
              member of the Court of Appeals is not personal to him [or her]
              and may be exercised by another member of the Court of
              Appeals"); see also State ex rel. Yost v. Omar Ibn El Khattab
              Mosque, Inc., 156 Ohio St.3d 523, 2019-Ohio-1958 (two newly
              elected justices participating in decision on motion for
              reconsideration in place of former justices); State v. [Braden,
              158 Ohio St.3d 462], 2019-Ohio-4204 (same); State v.
              Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777 (same).

       ¶ 15 Finally, as to the merits, Kellie Auto argues this court should reconsider the
first reconsideration decision because it "voided the 'right to cure' established by the CSPA
when it found a supplier obligated to exercise the right prior to arbitration, contrary to the
express language of R.C. § 1345.092." (Kellie Auto's App. for Recon. at 2.) Kellie Auto
argues the first reconsideration decision ignores the CSPA entirely and treated the case as
merely an application of the Arbitration Act. Further, Kellie Auto notes, as we agree and
emphasized, the court was compelled to give effect to both acts. Kellie Auto then contends:
              It is a plaintiff (and not a defendant) who dictates a decision
              to pursue arbitration vs. court action. The Plaintiff here was
              within his right to file a lawsuit. Likewise, the Defendant could
              ask that the lawsuit be stayed pending the disposition of
              arbitration under R.C. § 2711.02. Had the Plaintiff elected to
              pursue this strategy, the "right to cure" would have been
              asserted before (and not after) arbitration. This was a strategic
              decision within the control of the Plaintiff.

(Kellie Auto's App. for Recon. at 8.)
       ¶ 16 Kellie Auto's argument is not persuasive, including the suggestion that
arbitration was a strategic decision within the sole control of plaintiff. The arbitration
agreement stated: "either you or we may choose to have any dispute between us decided by
arbitration." (Emphasis omitted.) Norman, 2019-Ohio-360, at ¶ 3. Twice during the
course of negotiations, Kellie Auto informed Norman of its intention to invoke the
provisions of the arbitration agreement. Norman, 2019-Ohio-360, at ¶ 5 ("In the event
that this offer is not agreeable by Mr. Norman, then Kellie Auto Sales respectfully invokes
the provisions of the Arbitration Agreement executed by Mr. Norman and Kellie Auto Sales,
Inc. on January 25, 2016."); Id. at ¶ 6 ("By email sent August 9, 2016, Kellie Auto's legal
counsel advised Norman's legal counsel that Kellie Auto was invoking the arbitration
No. 18AP-32                                                                                                     8

agreement the parties had executed on January 25, 2016."). Furthermore, Kellie Auto
initially agreed to provide payment to Norman pursuant to the arbitrator's award; however,
upon retaining new counsel, Kellie Auto refused to provide payment. Kellie Auto's new
counsel advised Norman it was unwilling to pay the award "without Norman taking further
legal action." Norman, 2019-Ohio-360, at ¶ 10. Thus, to say that it was Norman who
dictated the decision to pursue arbitration is disingenuous. And, it could be said that it was
Kellie Auto who made the strategic decision to invoke and participate in arbitration, wait to
see how the arbitrator ruled, and then compel the filing of a motion to confirm and make a
cure offer.3
        ¶ 17 Second, we reject Kellie Auto's implication that the first reconsideration
decision failed to give effect to both the Arbitration Act and the CSPA. To begin, the original
decision, before reconsideration, gave no effect to long settled precedent regarding the lack
of authority for an arbitrator to reconsider its award and to a court's strictly limited
statutory authority to vacate or modify an arbitrator's award. This was both obvious error
and cannot be supported under the law.
        ¶ 18 Here, again, we reiterate that:
                 Kellie Auto's claim that modification was required for
                 application of the CSPA cure provisions was not based on any
                 flaw in the arbitrator's decision. Rather, the modification was
                 based on something that happened after the arbitrator issued
                 his decision and award and after Norman applied for


                 [N]o cure offer was made as arbitration proceeded and the
                 arbitrator did not err—requiring vacation or modification—by
                 failing to consider the cure provisions because no cure offer
                 was made for him to assess. The cure offer was made after the
                 arbitrator's powers expired and he was powerless to modify or
                 revoke his award at the time Kellie Auto made the cure offer.

3 The original decision contemplated such an abuse. "And while we hold concern for potential abuses of
resolving consumer disputes permitted by division (G) of R.C. 1345.092, we can only interpret and not change
the statute. We can envision that a supplier could insist on arbitration, refuse to pay, force a court action, and
timely make a cure offer pursuant to R.C. 1345.092(A) that is the same as or just higher than the economic
damage amount awarded by an arbitrator whether or not the arbitrator awarded treble damages and attorney
fees. Under this circumstance, as here, the application of division (G) of R.C. 1345.092, the consumer's
arbitration award would be reduced to at least the original arbitration award of economic damage, thereby
eliminating treble damages and any attorney fees awarded in excess of $2,500." Norman, 2019-Ohio-360, at
¶ 33.
No. 18AP-32                                                                                             9

                Kellie Auto did not meet any of the grounds for vacation or
                modification in R.C. 2711.10 or 2711.11.

Norman, 2020-Ohio-4311, at ¶ 15, 17.4
        ¶ 19 In addition, neither the CSPA nor the first reconsideration decision prevent
parties from attempting to resolve their dispute short of resorting to the filing of claims
pursuant to the CSPA. Nothing in the CSPA nor the first reconsideration decision prevents
suppliers from making offers to resolve disputes that contain the same or similar
components as outlined in R.C. 1345.092(D). Such efforts to resolve disputes need not be
triggered only by service of a summons and complaint on the supplier as Kellie Auto
suggests. The parties attempted the same prior to Kellie Auto invoking arbitration, and the
holding of the first reconsideration decision in no way would have prevented them from
continuing to negotiate during the course of arbitration.
Criteria for Consideration En Banc
        ¶ 20 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.' " Thyroff v. Nationwide Mut. Ins. Co., 10th
Dist. No. 15AP-1043, 2016-Ohio-5715, ¶ 8, quoting In re J.J., 111 Ohio St.3d 205, 2006-
Ohio-5484, ¶ 18. Resolution of intradistrict conflicts promotes uniformity and
predictability in the law, and a larger appellate panel provides the best possible means of
resolution. Open Container, Ltd. v. CB Richard Ellis, Inc., 10th Dist. No. 14AP-133, 2015-
Ohio-866, ¶ 3, citing McFadden, at ¶ 15-16.
        ¶ 21 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

4 And Kellie Auto does not reckon with the provisions of the CSPA indicating that any operative cure offer

must be made before any award issues in binding arbitration. See Norman, 2020-Ohio-4311, at ¶ 48 (Nelson,
J., concurring and citing R.C. 1345.092(D)(2) and (G)(1)).
No. 18AP-32                                                                                 10

               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.

Kellie Auto's Application for En Banc Review
       ¶ 22 Kellie Auto did not set forth a separate argument as to why en banc review
should be granted with regard to any conflict with Harris and Hal. As best we can
determine, the request is based on the same arguments regarding Harris and Hal made in
support of their application for reconsideration. For the same reasons we have articulated
above in our discussion of Harris and Hal, we reject Kellie Auto's argument that an
intradistrict conflict exists between the first reconsideration decision and Harris and Hal.
Therefore, we deny Kellie Auto's application for en banc review pursuant to App.R. 26(A)(2)
with regards to Harris and Hal.
       ¶ 23 Kellie Auto also did not set forth a separate argument as to why en banc
review should be granted with regard to any conflict with the original decision. We will
note, however, that we have vacated the original decision, and therefore no intradistrict
conflict exists between "two or more decisions of the court" under App.R. 26(A)(2)(a).
Now, only one decision in this case, the first reconsideration decision, remains operative
for purposes of precedent. In order for a conflict to exist, both decisions must present as
controlling authority, thereby creating risk of confusion.
       ¶ 24 Recognizing this limitation, this court denied en banc consideration in
Stanley Miller Constr. Co. v. Ohio School Facilities Comm., 192 Ohio App.3d 676, 2011-
Ohio-909 (10th Dist.), because the allegedly conflicting prior case had been overruled by
intervening decisions of this court in other cases. "The issue * * * has therefore been settled
in this district. As a result, no conflict exists and en banc consideration is not necessary."
Id. at ¶ 4, citing McFadden v. Cleveland State Univ., 180 Ohio App.3d 810, 2009-Ohio-
362, ¶ 9 (10th Dist.), discretionary appeal not allowed, 06/17/2009 Case Announcements,
2009-Ohio-2751 (generally recognizing that conflict existed, at the latest, when an earlier
case was already overruled, and therefore "there is no risk of confusion regarding the law
applicable to this case and cases like it").
       ¶ 25 The same reasoning applies even more forcefully in the present case in which
the new panel decision necessarily replaces the first entirely, rather than merely rejecting
its reasoning. Just as no conflict can exist between two decisions of this court when one of
No. 18AP-32                                                                                11

those has been overruled by statute or a higher court, no conflict can exist between a
standing case of this court and one that has become a nullity for purposes of precedent.
        ¶ 26 Second, adopting Kellie Auto's position will require App.R. 26(A)(2) en banc
proceedings in most cases in which a panel grants App.R. 26(A)(1) reconsideration and
modifies its reasoning or judgment. There is no indication the en banc rule was intended
to supplant ordinary panel reconsideration, if for no other reason that the rules currently
exist in parallel and no effort was made to modify App.R. 26(A)(1) when (A)(2) was
        ¶ 27 Therefore, we deny Kellie Auto's application for consideration en banc
pursuant to App.R. 26(A)(2) with regard to the original decision.
        ¶ 28 For the reasons stated above, we deny Norman's September 9, 2020
application for partial reconsideration. For the reasons stated above, we deny Kellie Auto's
September 14, 2020 application for reconsideration and application for consideration en
                                Norman's application for partial reconsideration denied;
                                      Kellie Auto's application for reconsideration denied;
                           and Kellie Auto's application for consideration en banc denied.

                                   NELSON, J., concurs.
                       BRUNNER, J., concurs in part and dissents in part.

NELSON, J., concurring.
        ¶ 29 My concurrence on reconsideration noted that reconsideration was necessary
because the original decision ran afoul of two important statutes: the Arbitration Act and
the Consumer Sales Practices Act. To my mind, the original opinion made obvious errors
and advanced a decision unsupportable under the law, both when it decided that a trial
court somehow has authority under the Arbitration Act to modify an arbitrator's decision
based not on any mistake in the award but on conduct a party undertakes after the award
has issued, and when it altered the CSPA by allowing a supplier to circumvent its own
arbitration contract and escape treble damage provisions by withholding any proffered
"cure" proposal until after arbitration proceedings are complete and the award has issued.
See Norman, 2020-Ohio-4311, ¶ 45-49 (concurrence). On neither count is that the law the
General Assembly has adopted, and it should not be the law in this judicial district.
No. 18AP-32                                                                                 12

       ¶ 30 As my earlier concurrence further noted, and as we restate above, to apply
the arbitration statutes by their terms does not strip suppliers of the protections offered by
the cure provisions of the CSPA. The Arbitration Act applies here only by virtue of both
parties having agreed to the arbitration procedures Kellie Auto proposed, and Kellie Auto
made no cure offer for the arbitrator even to assess. See Norman, 2020-Ohio-4311, at ¶ 48
(Nelson, J. concurring and emphasizing CSPA text indicating that any operative cure offer
must precede any award in binding arbitration); R.C. 1345.092(D)(2) and (G)(1). This
court has no warrant to ignore or set aside the terms of either enactment, as the earlier
extra-statutory modification of the arbitration award would have done.
       ¶ 31 Because as a member of the panel for this case I believe myself obliged to
conform our decision with the law, I concur in the majority opinion.

BRUNNER, J., concurring in part and dissenting in part.
       ¶ 32 I respectfully concur in part with and dissent in part from the majority and
concurring decisions on the parties' second application for reconsideration of Norman v.
Kellie Auto Sales, Inc., 10th Dist. No. 18AP-32, 2019-Ohio-360 ("original decision"), and
our first decision on reconsideration, Norman v. Kellie Auto Sales, Inc., 10th Dist. No.
18AP-32, 2020-Ohio-4311 ("first reconsideration decision").
II. EXPLANATION OF CONCURRENCE                           IN     DENYING         NORMAN'S
       ¶ 33 I concur in part with the majority to the extent that Norman is not entitled to
reconsideration wherein he seeks that we vacate our previous decision in part and remand
to the trial court certain questions concerning a post-arbitration award of attorney fees. I
agree with the majority and concur in that portion of the majority decision at paragraphs 8
and 9. I also concur for the additional, separate reason that there is procedural difficulty in
vacating one or both of our previous decisions on the merits, as is discussed more fully at a
later point in this separate opinion.
       ¶ 34 I respectfully dissent from both decisions of the majority in this second
application for reconsideration, this time, by both parties to the underlying appeal. I first
address the application for a second reconsideration made by Kellie Auto Sales, Inc.
No. 18AP-32                                                                                  13

Cutting to the chase, no amount of circular argument in support of the majority's opinions
will dispel the conclusion that reconsideration should not be used to avoid overruling a
previous decision. When an appellate court uses App.R. 26 to "reconsider" a previous
decision and makes a complete about face in doing so, it has in effect overruled a previous
decision which, in this case, was not unsupportable under the law. The underlying decision
was unanimously adopted by three judges. When the new panel majority took the case in
a different direction, it would have been more accurate to simply overrule the previously
comprised panel than to label what in effect reversed as "obvious error."
       ¶ 35 Reconsideration is "not intended for cases in which a party simply disagrees
with the reasoning and conclusions of the appellate court." (Citations omitted.) Hal v. State
Dept. of Edn., 10th Dist. No. 18AP-301, 2020-Ohio-204, ¶ 2. We do not permit parties to
rehash arguments nor raise issues that either were "not fully considered nor demonstrate
an obvious error" that may "render a decision unsupportable under the law." Id. Likewise,
it is not appropriate for a different panel that disagrees with the reasoning and conclusions
of a previous panel to find obvious error when that decision is supportable under the law.
       ¶ 36 This author has previously argued that "obvious error" first of all should be
defined, and when defined, it should rely on caselaw from our own district that defines it
as a decision not supportable under the law. See Hal and State v. Harris, 10th Dist. No.
13AP-1014, 2014-Ohio-672, ¶ 8. The author in the majority decision argues that Harris
uses the conjunctive "or" between "obvious error" and rendering an "unsupportable
decision under the law." Harris at ¶ 8, quoting Corporex Develop. & Constr. Mgt., Inc. v.
Shook, Inc., 10th Dist. No. 03AP-269, 2004-Ohio-2715, ¶ 2, quoting State v. Owens, 112
Ohio App.3d 334, 336 (11th Dist.1996). The majority then holds that "unsupportable under
the law" need not be the only definition, but still does not define just what is "obvious error"
for the purposes of reconsideration. This means the question remains unresolved how a
prior decision can in one instance be supportable under the law and at a later instance
obvious error. The majority in paragraph 17 and the separate, concurring opinion in its first
paragraph express that the original decision was not supportable under the law, despite
there being a unanimous panel on the question. This at least edges us closer to the
appropriate use of App.R. 26 to achieve this complete change in the law of this case.
       ¶ 37 But with a continuing failure to define in any meaningful way "obvious error,"
this panel perpetuates the amorphous and inconsistent application of App.R. 26. Obvious
No. 18AP-32                                                                                      14

error, then, is what we say it is, but we can't tell litigants what it is with any precision to help
them understand when App.R. 26 should be used to posit genuine new arguments to make
the law better. Failing to define "obvious error" lends no faith to the rule's operation for a
predictable process. And with great respect for the concerns posited in the majority
opinion, continuing not to define "obvious error" creates no real safety for future flexibility
in a genuine effort to get the law right and make it work for people. We would be better off
to define it now and expand the definition as the need arises.
       ¶ 38 Taking a prospective view, continuing not to define "obvious error"
perpetuates a lack of transparency in the application of App.R. 26, a procedural statute.
Defining procedures lead to transparency of processes and confidence in the outcome. That
this same procedural question—what is obvious error?—remains unaddressed, will
continue to sow doubt about this App.R. 26's efficacy, use, and application. And while these
points I make are seemingly abstruse points, suffice it to say, it is the minor irritant that
often becomes the acid that decays confidence in the ability of the rule of law to bend toward
       ¶ 39 Since the majority addressed arguments focused on the plain meaning
application of the two statutes that occurred in the original decision in this case, I will briefly
address, again, why the plain meaning must be respected and observed when the state's
Consumer Sales Practices Act and Arbitration Act are read and applied together. It is
readily apparent that the applications of the two statutes in the original decision of this case
did not necessarily lead to a pleasing outcome. But if the interpretations and applications
are supportable under the law, reconsideration is not to be used for creating a better
       ¶ 40 Reconsideration is for correcting real legal errors that cannot stand. Hal;
Harris. So the question becomes, does a plain meaning application of Ohio's arbitration
statutes and the Consumer Sales Practices Act render the original decision in this case
supportable under the law?
               "The primary rule in statutory construction is to give effect to
               the legislature's intention," * * *. When there is no ambiguity,
               we must abide by the words employed by the General
               Assembly, * * *, and have no cause to apply the rules of
               statutory construction, see Hulsmeyer v. Hospice of Southwest
               Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903,
               ¶ 22-23. "We 'do not have the authority' to dig deeper than the
No. 18AP-32                                                                                   15

                   plain meaning of an unambiguous statute 'under the guise of
                   either statutory interpretation or liberal construction.' "
                   Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75
                   N.E.3d 203, ¶ 8, quoting Morgan v. Adult Parole Auth., 68
                   Ohio St.3d 344, 347, 1994-Ohio-380, 626 N.E.2d 939 (1994).

State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office, 152 Ohio St.3d 163, 2017-Ohio-
8714, ¶ 15. Moreover, when statutes are read "giving the words [that] the legislature chose
their plain and ordinary meanings," if the words of the statute are not ambiguous, id. at
¶ 18, the rules of statutory interpretation should not be employed unless the result is
absurd, providing an exception to the plain meaning rule. Id. at ¶ 22. It appears that the
majority on this second reconsideration would find the original decision's result of using
the plain meanings of these statutes together absurd.
           ¶ 41 The principle of absurd result is "premised on a guiding principle of statutory
construction: that when the General Assembly enacts a statute, it does not intend to
produce an absurd result. See R.C. 1.47(C). The starting point of that analysis is the
language of the statutory provision. See Canton v. Imperial Bowling Lanes, Inc., 16 Ohio
St.2d 47, 53, 242 N.E.2d 566 (1968)." Clay at ¶ 22. An absurd result is one that is an
"obviously unintended result." Id. at ¶ 26, quoting Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 239 (2012) (" ' The doctrine of absurdity is meant to correct
obvious unintended dispositions, not to revise purposeful dispositions that, in light of other
provisions of the applicable code, make little if any sense [emphasis sic].')."
           ¶ 42 It is not out of the realm of possibility that the Ohio General Assembly
contemplated the outcome set forth in the original decision. Perhaps the legislature
preferred a weakened application of the state's Consumer Sales Practices Act when read in
conjunction with the state's Arbitration Act. Some recent examples of legislative history
suggest that it may have. See, e.g., S.B. No. 185, 126th General Assembly, which limited
consumers' noneconomic damages and limited damages against certain assignees in
mortgage transactions.5 In 2011, the Ohio General Assembly created the right to cure in

5   See, e.g., newly created R.C. 1345.091 in S.B. No. 185:
                   SEC. 1345.091. NO CLAIM OR DEFENSE UNDER THIS CHAPTER MAY
No. 18AP-32                                                                                16

the Consumer Sales Practices Act, allowing consumers and suppliers as defined in that act
to enter into a right to cure agreements (at issue in part in this appeal). See H.B. No. 285,
129th General Assembly, eff. 7/3/2012. In 2012, the Ohio General Assembly removed
consumer remedies arising under most home construction services contracts from the
operation of the Consumer Sales Practices Act, creating a separate statute, R.C. 4722.01 et
seq, setting forth requirements for its application, henceforth preventing homeowners from
availing themselves of the generalized consumer protections of R.C. 1345 et seq. See H.B.
No. 383, 129th General Assembly, File No. 107, eff. 8/31/2012. Thus, the plain meaning
and resulting application of the two statutes involved—Consumer Sales Practices Act and
the state's Arbitration Act—may not necessarily create a legally absurd result that the
legislature did not intend.
       ¶ 43 The state's high court has explained the difference between an "absurd
result," and an "absurd consequence as a result" and they are not the same. Clay at ¶ 25. I
believe that this panel has found "obvious error" in what it has found to be an "absurd
consequence" of the previous panel's reading and application of the plain meaning of the
two legislative enactments taken together. While admirable, this court cannot step in for
the legislature to correct what it perceives to be unreasonable, unless the result is truly
absurd. In situations like this, when statutory law is read in its plain language (as we are
first required to do) and given its effect, the "fix" is not one to be made by this court or a
new panel of this court. Rather, the "fix" must be made by the legislature, presumably made
in response to public outcry for perceived unfairness of the application or even on reading
a court's reading and application of its plain meaning.
       ¶ 44 When we observe the boundaries of our branch of the state's government, we
illuminate problems with legislation to permit the Ohio General Assembly to determine
whether it simply wanted what we think may be bad policy or whether it made an error.
This is the case, as long as the problems challenged by way of litigation and appeal are not



2005 Ohio S.B. No. 185.
No. 18AP-32                                                                                                  17

unconstitutional or so absurd that, "[i]f strict construction of a statute would result in
'unreasonable or absurd consequences,' a construing court may reject the strict-
construction doctrine, because courts must presume that the legislature enacted a statute
for a 'just and reasonable result.' [Columbia Gas Transmission Corp. v. Levin, 117 Ohio
St.3d 122, 2008-Ohio-511], citing Gulf Oil Corp. v. Kosydar, 44 Ohio St.2d 208 (1975),
paragraph two of the syllabus, and R.C. 1.47(C)." Clay at ¶ 23. Here, I perceive that the
plain reading of the two statutes and applying them as read is what the legislature intended
and that the "fix" should be taken up by the Ohio General Assembly. As the Supreme Court
of Ohio has stated, "[i]f after reflection on our decision, the General Assembly finds that its
original intention was not accomplished in the words that it chose, then it, and it alone, has
the constitutional authority to amend the statute to conform to its intention." Clay at ¶ 40.
        ¶ 45 I err on the side of restraint, because there is danger in nudging the bright
lines separating the powers of the state's three branches of government, no matter how
well-intentioned to make a statute or two statutes in tandem "work better." Courts do not
have the resources or wherewithal to rewrite legislation—a process that involves public
debate. We debate the legal questions of the day in the cloisters of our chambers. Despite
the outcome of the original decision in this case, our role is to follow first the plain language
in the statutes, also keeping in mind that our jurisdiction is constitutionally determined by
the state legislature and that judgments of the courts of appeals are final, except as to
appeals accepted by the Supreme Court according to Ohio Constitution, Article IV, Section
3(B)(2) and (3).6
        ¶ 46 While the subsequent panel majority has endeavored to "fix" an unpleasing
outcome, it can only fix absurd or unreasonable results achieved by a plain reading of the
statutes by thereafter applying the rules of statutory interpretation. Clay at ¶ 5. It cannot
use App.R. 26's "obvious error" analysis (whatever that may be) on reconsideration to
relabel a decision that is clearly supportable under the law as "obvious error," especially

6 "Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or
reverse judgments or final orders of the courts of record inferior to the court of appeals within the district,
except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a
sentence of death. Courts of appeals shall have such appellate jurisdiction as may be provided by law to review
and affirm, modify, or reverse final orders or actions of administrative officers or agencies. (3) A majority of
the judges hearing the cause shall be necessary to render a judgment. Judgments of the courts of appeals are
final except as provided in section 2(B)(2) of the article." Ohio Constitution, Article IV, Section 3(B)(2) and
No. 18AP-32                                                                                 18

when it refuses to define what "obvious error" is.         Under its current status, upon
disagreement, at the very least, the subsequent panel should have overruled the earlier
unanimous decision and not vacated the earlier decision, when it substituted its own
judgment in a new one.
       ¶ 47 Finally on this point, I respectfully continue to point out that vacating
previous decisions is neither authorized nor supported under App.R. 26 or even the Ohio
Constitution for that matter, because nowhere in the Rules of Appellate Procedure are we
authorized to vacate our own decisions. And the Ohio Constitution provides that our
decisions when rendered are final. Ohio Constitution, Article IV, Section 3(B)(3). The
majority's address vacating our own final decisions, move the problem down the road,
leaving litigants with uncertainty and subjecting counsel and their clients to unwarranted
angst and even financial hardship. For this reason, I further incorporate by reference my
earlier discussion of this issue in the first decision on reconsideration as if fully
incorporated in this second decision on reconsideration.
       ¶ 48 It is for these reasons that I respectfully dissent from the majority's decisions
on the parties' second application for reconsideration. Under Clay, there is support for
acting on the presumption that "the legislature enacted a statute for a 'just and reasonable
result' by stopping our analysis at the plain meanings and applications of the two statutes
as was accomplished by the original decision." Clay at ¶ 23, citing Kosydar, 44 Ohio St.2d
at paragraph two of the syllabus, and R.C. 1.47(C).
       ¶ 49 Regarding Kellie Auto Sales, Inc.'s application for en banc consideration, this
court in Jezerinac v. Dioun, 10th Dist. No. 18AP-479, 2020-Ohio-587, examined whether
it would consider en banc these precise questions regarding "obvious error" and vacating
prior decisions on reconsideration under App.R. 26. The court failed to reach a majority in
favor of considering these questions en banc. Therefore, I would not pursue a futile act by
dissenting from the decision of the majority and thereby effecting a process whereby the
Court must consider these identical questions again. I do not anticipate a different
outcome. Moreover, the Supreme Court has accepted jurisdiction to hear an appeal of our
decision on reconsideration in Jezerinac as to whether a new panel of an appellate court
may reverse the decision of a prior panel of the court. Jezerinac v. Dioun, __ Ohio St.3d
No. 18AP-32                                                                                 19

__, 2020-Ohio-4232 (slip opinion). Therefore, I concur with the majority in denying Kellie
Auto Sales, Inc.'s application for en banc consideration.
       ¶ 50 I concur with the decisions of the majority as to Norman's application for
reconsideration and as to Kellie Auto Sales, Inc.'s application for en banc consideration of
the issues maintained in this appeal and the subsequent issues raised via App.R. 26
applications for reconsideration. I dissent from the denial of Kellie Auto Sales, Inc.'s second
application for reconsideration as expressed by the majority for the reasons stated in this
separate opinion.

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