Supreme Court of Ohio Mary Beth Ciocco, L.L.C. By: Mary Beth Ciocco (0063737) Counsel of Record 159 CrockerPark, 4t" Floor Westlake, Ohio 44145 (216) 832-4997 ... of lack of subject

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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

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Attorney for Plaintiff-Appellant

Thomas IVIcCorznack (0015570)815 Superior Avenue, Suite 1915Cleveland, Ohio 44114(? 16) [email protected]

Attorney for Defendant-Appellee

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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

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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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!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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