Miller v. Mellot , 2020 Ohio 237 ( 2020 )

[Cite as Miller v. Mellot, 2020-Ohio-237.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
ALLEN B. MILLER ET AL.,
Plaintiffs-Appellants,
v.
ELBERT MELLOTT ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 18 MO 0004
Motion for Reconsideration
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Atty. Kristopher Justice, and Atty. Daniel Corcoran, Theisen Brock, 424 Second Street,
Marietta, Ohio 45750, for Plaintiffs- Appellants and
Atty. Scott Eickelberger, Atty. David Tarbert, and Atty. Ryan Linn, Kincaid, Taylor, &
Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio 43702, for Defendants-
Appellees.
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Dated: January 24, 2020
PER CURIAM.
{¶1} On October 9, 2019, Plaintiffs-Appellants, Allen B. Miller, Matilda J. Miller,
Craig M. Miller, Tina E. Miller, Brenda D. Thomas, and Kevin M. Thomas filed a second
application for reconsideration pursuant to App.R. 26(A)(1). On September 30, 2019, we
granted Appellant’s original application for reconsideration in order to clarify our opinion
and judgment entry issued on February 6, 2019, Miller v. Mellott, 7th Dist. Monroe No.
18MO0004, 2019-Ohio-504, 130 N.E.3d 1021, but ultimately affirmed the trial court’s
dismissal of Appellants’ Marketable Title Act (“MTA”) claim. Miller v. Mellott, 7th Dist.
Monroe No. 18MO0004, 2019-Ohio-4084. Defendants-Appellees, Betty Mellott, Mary Hill,
Paul Hill, Kathie Hill, Marcia Phelps, Debe Owens, Lawrence Hill, Patricia Hill, Terrence
Hill, Jody Hill, and Patricia Herndon, filed their opposition brief to the second application
on October 17, 2019. Appellants’ reply was filed on October 23, 2019.
{¶2} An application for reconsideration must call to the attention of the appellate
court an obvious error in its decision or point to an issue that was raised to the court but
was inadvertently either not considered at all or not fully considered. Juhasz v. Costanzo,
7th Dist. Mahoning No. 99-C.A.-294, 2002 WL 206417, (Feb. 1, 2002). In our September
30th judgment entry, we explained that the void in the post-severance/pre-root deed
history in the record prohibited us from concluding that an exception in the root of title
deed was a general reference to an interest created in a prior deed.
{¶3} We have previous recognized that App.R. 26(A) does not provide for
second or successive reconsiderations of our final judgment in an appeal. State v.
Wellington, 7th Dist. Mahoning No. 14 MA 115, 2015-Ohio-2754, ¶ 6; State v. Dew, 7th
Dist. Mahoning No. 08 MA 62, 2014-Ohio-4042, ¶ 6; State v. Davis, 7th Dist. Mahoning
No. 10 MA160 (Jan. 12, 2012 J.E.). The Ohio Supreme Court reached the same
conclusion with respect to successive applications to reopen under App.R. 26(B). State
v. Peeples, 73 Ohio St. 3d 149, 1995-Ohio-36, 652 N.E.2d 717 (1995). Accordingly,
Appellants’ second application for reconsideration is denied.
Case No. 18 MO 0004
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JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 18 MO 0004