Sylvester v. Keister

2011 Ohio 682

• Court: Ohio Court of Appeals
• Decided: February 10, 2011
• Docket: 2010-CA-0078
• Status: Published

Opinion

[Cite as Sylvester v. Keister, 2011-Ohio-682.]

[Please see original opinion at 2011-Ohio-178.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANTHONY SYLVESTER, ET AL : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : : AARON M. KEISTER : Filed: February 10, 2011 : Defendant-Appellant : CASE NO. 2010-CA-00078

{¶ 1} “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.” State v. Owens (1997), 112 Ohio

App. 3d 334, 336, 678 N.E. 2d 956, dismissed, appeal not allowed, 77 Ohio St. 3d

1487, 673 N.E. 2d 146.

{¶ 2} In Matthews v. Matthews (1981), 5 Ohio App. 3d 140, 143, 450 N.E. 2d

278, the Franklin County Court of Appeals states, “[t]he 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 considered at all or

was not fully considered by us when it should have been.” Stark County, Case No. 2010-CA-00078 2

{¶ 3} Appellant’s Application for Reconsideration correctly brings to our

attention that our opinion in the within, filed January 18, 2011, omitted the issue of

excessive damages, and this issue was not made moot by our decision on the default

judgment. Accordingly, Appellant’s Application is granted as to the issue of damages.

{¶ 4} IT IS SO ORDERED.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS

ANTHONY SYLVESTER, ET AL : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : : Filed: February 10, 2011 AARON M. KEISTER : : Defendant-Appellant : CASE NO. 2010-CA-00078 Stark County, Case No. 2010-CA-00078 3

{¶ 5} Our opinion in the within, filed January 18, 2011, is vacated. The case is

hereby re-opened and a new opinion and judgment entry will be filed.

{¶ 6} IT IS SO ORDERED.