Gentile v. Turkoly
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[Cite as Gentile v. Turkoly, 2017-Ohio-2958.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT RICHARD D. GENTILE, M.D, PLAINTIFF-APPELLANT, VS. KELLY TURKOLY, DEFENDANT-APPELLEE. ) ) ) ) ) ) ) ) ) CASE NO. 16 MA 0071 OPINION AND JUDGMENT ENTRY CHARACTER OF PROCEEDINGS: Application for En Banc Consideration JUDGMENT: Denied. APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: Atty. Christopher P. Lacich Roth, Blair, Roberts, Strasfeld & Lodge, L.P.A. 100 East Federal Street, Suite 600 Youngstown, Ohio 44503 Atty. Christopher J. Regan Atty. J. Zachary Zatezalo Bordas & Bordas, LLC 1358 National Road Wheeling, WV 26003 JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro Dated: May 15, 2017 [Cite as Gentile v. Turkoly, 2017-Ohio-2958.] PER CURIAM. {¶1} Appellant has timely filed a joint application for en banc reconsideration and reconsideration of this appeal. Appellee timely opposed the applications. The application for en banc reconsideration will be addressed in this judgment. The application for reconsideration will be addressed in a separate opinion. {¶2} En banc reconsideration is governed by App.R. 26(A)(2). Under the rule, the appellate court may order an appeal to be considered en banc if the majority of the court of appeals judges in the appellate district determine “two or more decisions of the court on which they sit are in conflict.” App.R. 26(A)(2)(a). Intradistrict conflicts sometimes arise; they occur when different panels of judges hear the same issue, but reach different results. McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008–Ohio–4914, 896 N.E.2d 672, ¶ 15. Appellant is required to explain how the panel’s decision conflicts with a prior panel’s decision on a dispositive issue. App.R. 25(A)(2)(b). {¶3} In arguing for en banc reconsideration, Appellant cites City of Steubenville v. Schmidt, 7th Dist. No. 01 JE 13, 2002-Ohio-6894. In City of Steubenville, we held a trial court has authority to sua sponte direct a verdict. Id. at ¶ 31. We cited City of Steubenville in this appeal, restated its holding, and once again held a trial court has authority to sua sponte direct a verdict. Gentile v. Turkoly, 7th Dist. No. 16 MA 0071, 2017-Ohio-1018, ¶ 18. {¶4} 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. Our holding in this appeal is not in conflict with City of Steubenville; in both cases we held a trial court has the authority to sua sponte direct a verdict. Admittedly, in City of Steubenville it was a bench trial, while here it was a jury trial. However, that distinction does not render the dispositive holdings in the cases in conflict. Thus, there is no basis for en banc reconsideration. {¶5} Application for en banc reconsideration is denied. -2- Robb, P.J. concurs. Donofrio, J., concurs. Waite, J., concurs. DeGenaro, J., concurs.
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