[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-5480.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

TRACY KINDERDINE, et al. 

 PLAINTIFF-APPELLEES 

VS. 

MAHONING COUNTY BOARD OF 

DEVELOPMENTAL DISABILITIES, et al. 

 

 DEFENDANTS-APPELLANTS 

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CASE NO. 2014 MA 0174 

OPINION 

AND 

JUDGMENT ENTRY 

CHARACTER OF PROCEEDINGS: Motion for Panel Reconsideration and 

En Banc Reconsideration 

JUDGMENT: Denied. 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: August 19, 2016 
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APPEARANCES: 

For Plaintiff-Appellees Attorney W. Craig Bashein 

Attorney Anthony N. Palombo 

Terminal Tower, 35th Floor 

50 Public Square 

Cleveland, Ohio 44113 

Attorney Paul Flowers 

Terminal Tower, 35th Floor 

50 Public Square 

Cleveland, Ohio 44113 

Attorney Thomas J. Wilson 

100 Federal Plaza East, Suite 926 

Youngstown, Ohio 44503-1811 

For Defendants-Appellants Attorney Todd M. Raskin 

Attorney Carl E. Cormany 

Attorney Frank H. Scialdone 

100 Franklin's Row 

34305 Solon Road 

Cleveland, Ohio 44139 
[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-5480.]

PER CURIAM. 

{¶1} Tracy Kinderdine, et al., Plaintiff-Appellees, filed a motion for 

reconsideration and reconsideration en banc in the appeal of Kinderdine et al., v. 

Mahoning County Educational Service Center, 7th Dist. No. 14 MA 0174, 0177, 

0180, 0181, 2016-Ohio-4815. 

{¶2} "The test generally applied upon the filing of a motion for 

reconsideration in the court of appeals is whether the motion calls to the attention of 

the court 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." Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (1987), 

paragraph one of the syllabus. 

{¶3} The purpose of reconsideration is not to reargue one's appeal based on 

dissatisfaction with the logic used and conclusions reached by an appellate court. 

Victory White Metal Co. v. N.P. Motel Syst. Inc., 7th Dist. No. 04 MA 0245, 2005–

Ohio–3828, ¶ 2. "An application for reconsideration may not be filed simply on the 

basis that a party disagrees with the prior appellate court decision." Hampton v. 

Ahmed, 7th Dist. No. 02 BE 0066, 2005–Ohio–1766, ¶ 16 (internal citation omitted). 

Nor is it "a mechanism to raise an entirely new argument and issue to the appellate 

court that was not raised in the appellate brief." State v. Wellington, 7th Dist. No. 14 

MA 0115, 2015-Ohio-2095, ¶ 9. 

{¶4} In support of reconsideration, the Kinderdines argue that because it 

was omitted from the opinion, this Court failed to consider "startling testimony" that 

was favorable to them. This Court fully considered the entire trial record when 

deciding this appeal. The Kinderdines do not call to our attention an obvious error, 

but merely proffer a disagreement with the format of the opinion and decision 

reached by the Court. 

{¶5} The Kinderdines have also requested en banc consideration of this 

appeal. Under App.R. 26(A)(2)(a), if a majority of the court of appeals judges in an 

appellate district determine that two or more decisions of the court on which they sit 

are in conflict, the court “may order that an appeal or other proceeding be considered 
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en banc.” The Kinderdines must "explain how the panel's decision conflicts with a 

prior panel's decision on a dispositive issue." Martin v. Lake Mohawk Property

Owner's Assn., Inc., 7th Dist. No. 10 CA 869, 2011-Ohio-6538, ¶ 1. "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." App.R. 26(A)(2) 

{¶6} In support of en banc consideration the Kinderdines argue that this 

panel applied a heightened causation standard which deviates from the approach 

taken in two earlier decisions from this District: Roberts v. Switzerland of Ohio Loc. 

Sch. Dist., 2014-Ohio-78, 7 N.E.3d 526 (7th Dist.) and DeMartino v. Poland Local 

School Dist., 7th Dist. 10 MA 19, 2011-Ohio-1466. MCESC argues that there is no 

intra-district conflict regarding causation. 

{¶7} App.R. 26(A)(2) requires a panel's decision to be made on a 

"dispositive issue." In the present matter, this Court did not find an exception to 

immunity under R.C. 2744.02(B)(4) that employed a causation analysis which the 

Kinderdines challenge herein. However, we continued, "even if we were to conclude 

the exception found in R.C. 2744.02(B)(4) was present, immunity would be restored" 

under R.C. 2744.03(A)(5). Kinderdine, supra, ¶ 23. As the present case does not 

conflict with Roberts and DeMartino on a dispositive issue, en banc consideration is 

not appropriate. 

{¶8} The Kinderdines' arguments regarding MCBDD's liability and immunity 

were fully considered by this Court prior to ruling on the matter. The motion for 

reconsideration does not call to the attention of this Court an obvious error. Further, 

the Kinderdines are not entitled to reconsideration en banc as they do not present a 
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challenge to a dispositive issue. Accordingly, the Kinderdines' motion for 

reconsideration is denied. 

 

DeGenaro, J., concurs. 

Waite, J., concurs. 

Robb, J., concurs.