IN THE SUPREME COURT OF OHIO
HOUSTON BYRD, JR.
Case No. 2014-0347
Appellant,
On Appeal from the Licking
County Court of Appeals, Fifth
Appellate District
Vs.
JAMIE L. and CAROL R. FRUSH, et aI. :
Appellate Case No. 13CA00010
Appellees.
APPELLEES' MOTION TO DISMISS APPEAL
Scott E. Williams (0058449)
swil liams@hswlawyers. c om
I-IAlV1M(JND SE'1A7ARDS & WILLIAMS
556 East Town Street
Columbus, Ohio 43215
(614) 228-6061 (phone) / (614) 228-5883 (fax)
Counsel for Defendants-Appellees Jamie and Carol Frush
Houston Byrd, Jr.
[email protected]
241 N. 10`h Street
Newark, OH 43055
(740) 641-2152
Plaintiff-Appellant Pro Se
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MAIRI 17 2014
CLERK OF COURT
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I. INTRODUCTION
This lawsuit arises out of an automobile accident that occurred in a parking lot on
July 14, 2010, between Plaintiff-Appellant Houston Byrd, Jr. and Defendant-Appellee
Carol R. Frush. Mr. Byrd continues to name Mrs. Frush's husband, Jamie Frush, as a
party; however, Mr. Frush was not involved in the accident and the trial court granted his
Civ,R. 12(B)(6) motion to dismiss on August 22, 2012. The trial court dismissed the
entire lawsuit on January 30, 2013, after Mr. Byrd failed to respond to several Court
orders, including two to appear before the Court, and because of his failure to prosecute
the action. Mr. Byrd appealed.
On August 23, 2013, the Licking County Court of Appeals, Fifth Appellate
District, affirmed the decision of the Common Pleas Court. On August 30, 2013, :VIr.
Byrd filed his ?1lotion to Vacate, llfotion for Findings of F'act, and Motion for Objections.
On September 10, 2013, Mr. Byrd filed a Motion for Reconsideration and Grant InjuYy
Request. Each of these motions was opposed by Mrs. Frush. On September 23, 2013,
the Appellate Court denied all of Mr. Byrd's motions, including his motion for
reconsideration. A copy of that Judgment h;ntry is attached hereto as Exhibit 1.
Mr. Byrd filed several additional motions and documents in the Appellate Court
after its denial of reconsideration, all of which were denied, including his most recent
Motion for Reconsideration (in lieu of filing a complaint with regulatory agencies), filed
on January 29, 2014. The Appellate Court denied that motion on February 18, 2014; Mr.
Byrd's appeal to the Supreme Court is from this denial.
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II. THIS APPEAL SHOULD BE DISMISSED AS UNTIMELY
Pursuant to App.R. 26(A)(l.)(a), a motion for recoiisideration must be filed in the
Court of Appeals 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."
Mr. Byrd had ten days after August 23, 2013, in which to file a motion for
reconsideration of the Appellate Court's decision affirming the trial court's dismissal of
his action against Mrs. Frush; his Motion for Reconsideration and Grant InjuryRequest
filed on September 10, 2013, was too late. Even if the Court grants Mr. Byrd a little
leeway as a pro-se litigant and considers any one of his motions filed on August 30, 2013
(Motion to Vacate, .Motion for Findings of Fact, and Motion fof• Objections), to be a
motion for reconsideration and therefore timely filed, the A.ppeliate Court denied all of
his motions including the motion for reconsideration on September 23, 2013. Pursuant to
S.Ct.Prac.R. 7.01(A)(1)(a)(i) and 7.01(A)(5)(a),(b), Mr. Byrd had 45 days from
September 23, 2013 - that is, until November 7, 2013 - to file a notice in this Court
appealing affirmance of the dismissal. He did not file anything in this Court until March
7, 2014, when he filed the notice of appeal subject of this 'motion.
But as discussed above, the instant appeal is not from the decision affirming
dismissal. The instant appeal is from the Appellate Court's denial of Mr. Byrd's third
motion for reconsideration - his motion for reconsideration in lieu of filing a complaint
with regulatory agencies. (His second Motion for Reconsideration and Grant Inj.iary
Request was denied on October 21, 2013.) Appellee can find no rule or case law that
permits successive filings of motions to reconsider to continue to toll the time in which a
party can appeal to this Court. While Mr. Byrd's notice of appeal herein was filed within
45 days of the Appellate Court's February 18, 2014, decision, it was filed 4 months after
a notice of appeal regarding the underlying trial court case was required to be filed.
The Appellate Court's February 18, 2014, decision, denies Mr. Byrd's repeated
requests to consider arguments he repeatedly made to that Court that it repeatedly
rejected. In Matthews v. Matthews (1981), 5 Ohio App.3d 140, 143, the Tenth Appellate
District Court held:
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 and changed.
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 considered at all or was not
fully considered by us when it should have been.
In its decision denying Mr. Byrd's first motion for reconsideration, the Appellate Court
held that he failed to demonstrate any obvious error and failed to point out any issue that
was not adequately addressed in the original opinion. "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.
Mr. Byrd chose to proceed pro se herein, but "pro se litigants are not exempt ftom
complying with the rules and regulations. Pro se civil litigants are bound by the same
rules and procedures as those litigants who retain counsel. They are not to be accorded
greater rights and must accept the results of their own mistakes and errors." Citibank v.
Valentine, 2012-Ohio-2786 (Ohio 5`h App.Dist.), slip copy, at ¶26, quotation onaittea'.
See also State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448; Deutsche
Bank Natt. Y'rust Co. v. Davis, 2011-Ohio-5791 (Ohio 5`h App.Dist.), slip copy. While
the Court may grant Mr. Byrd a certain amount of latitude since he is pro se, the Court
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cannot simply disregard the Rules to accommodate him. Pinnacle Credit Servs., LLC v.
Kuzniak, 2009-Ohio-1021 ( Ohio 7th App.Dist.), slip copy, at T30. The instant appeal is
untimely and should be dismissed.
IIL CONCLUSION
Successive motions for reconsideration in the Court of Appeals do not toll the
time in which a notice of appeal is required to be filed in this Court. Mr. Byrd's appeal to
this Court of the Appellate Court's decision affirming the trial court's dismissal of his
action against Mrs. Frush was filed four months too late. "However hurried a court may
be in its efforts to reach the merits of a controversy, the integrity of procedural rules is
dependent upon consistent enforcement because the only fair and reasonable alternative
thereto is complete abandonment." Miller v. Lint (1980), 62 Ohio St.2d 209, 215. The
Court should dismiss this appeal.
5
Y
ySC;()T4' E. 1VIELIAMS ( 0058449)
swilliams@hswla,A,yers.com
HAMMOND SEWARDS & WILLIAMS
556 East Town Street
Columbus, Ohio 43215
(614) 228-6061 (phone) f (614) 228-5883 (fax)
Counsel for Defendants-Appellees Jamie and Carol
Frush
CERTIFICATE OF SERVICE
The undersigned eolmsel hereby certifies that a true and accurate copy of the
foregoing was served upon the following:
1-Iouston Byrd, Jr.
[email protected]
241 N 10" St
Newark, OH 43055
by email and regular U.S. mail, postage prepaid, day of lVlarch, 2014.
E. WILLIANS 0058449
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^ IL ^^^^^
IN THE COURT OF APPEALS FOR LICKING COUN-Wig QM^P :^ 4q
FIFTH APPELLATE DISTRICT t;t.r RK OF OOORTs
OF APPEALS
HOUSTON BYRD, JR. ; LICKING COUNTY OH
G ARY R, W;' Ai_TERS
Plaintiff-Appellant
-vs- : JUDGMENT ENTRY
JAMIE L. AND CAROL R. FRUSH, ET AL
Defendants-Appeiiees
: CASE NO. 13-CA-10
This matter came before the Court upon the following motions filed by appellant:
Motion for Objection filed on August 30, 2013; Motion for Findings of Fact filed on
August 30, 2013; Motion to Vacate filed on August 30, 2013; and Motion for
Reconsideration and Grant Injury Request filed on September 10, 2013. Appellee filed
memorandums in opposition to appellant's motions on September 9, 2013.
In his motions, appellant objects to the opinion and judgment entry issued by this
Court on August 23, 2013, seeks to vacate the opinion, lists the items in the opinion and
judgment entry he disagrees with or has questions about, and generally reiterates the
arguments made in his original appellate brief. In essence, appellant requests that we
reconsider our opinion and judgment entry issued ors August 23, 2011 3.
App. R. 26 does not provide specific guidelines to be used by an appellate court
when determining whether a decision should be reconsidered or modified. In Mathews
v, Mathews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist. 1981), the court
stated: [t]he test generally applied in [A]pp. R. 26(A) motion[s] is whether the motion for
reconsideration calls to the attention of the court an obvious error in its decision or
EXHIBIT
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Licking County, Case No. 13-CA-10
2
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." See also State v. Owens, 112 Ohio
App.3d 334, 678 N.E.2d 956 ( 11th Dist. 1996), Erie Ins. Exchange v. Colony Dev.
Corp., 136 Ohio App.3d 419, 736 N.E.2d 950 (10th Dist. 2000).
A review of appellant's motions reveals that he has not demonstrated any
obvious error or pointed out any issue that was not adequately addressed in the
opinion. "An Application for Reconsideration is not designed for use in instances where
the parties simply disagree witi7 the conciusioris reached and loyic used wy an appellate
court. 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. Appellant has made no such demonstration
in his motions.
Upon a complete review of appellant's motions, this Court finds that the issues
have been thoroughly considered by this Court in the original appeal, For these
reasons, appellant's motions are not well-taken.
190
Licking County, Case No. 13-CA-10
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AppeiEant's motion for objection, motion for findings of fact, motion to vacate, and
motion for reconsideration and grant injury request are denied.
IT IS SO ORDERED.
.----".
NON. VV. SCO`f"t' GWiN
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N. SHFJLA G.
CRAIG R. BALDWIN
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