[Cite as BAC Home Loans Servicing, LP v. Kolenich, 2013-Ohio-155.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




BAC HOME LOANS SERVICING, LP,                        :

        Plaintiff-Appellee,                          :           CASE NO. CA2012-01-001

                                                     :             OPINION ON
   - vs -                                                  RECONSIDERATION/CERTIFICATION
                                                     :              1/22/2013

JAMES E. KOLENICH, et al.,                           :

        Defendants-Appellants.                       :




            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2009-07-3226


Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA, George J. Annos, 24755 Chagrin
Boulevard, Suite 200, Beachwood, Ohio 44122, for plaintiff-appellee

James E. Kolenich and Barbara R. Kolenich, 9435 Waterstone Boulevard, #140, Cincinnati,
Ohio 45249, defendants-appellants, pro se

Roger S. Gates, P.O. Box 515, Hamilton, Ohio 45012, for defendant, Department of
Environmental Services



        S. POWELL, P.J.

        {¶ 1} This matter is before the court pursuant to a motion for reconsideration, or in

the alternative motion to certify a conflict, filed by defendants-appellants, James E. Kolenich

and Barbara R. Kolenich. The Koleniches request that the court reconsider or certify the

portion of its decision in BAC Home Loans Servicing, L.P. v. Kolenich, 12th Dist. No.
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CA2012-01-001, 2012-Ohio-5006 (BAC II), which holds that BAC was not required to file its

reply to their counterclaims within 14 days of the date on which we issued our decision in

BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345 (12th

Dist.) (BAC I). For the reasons that follow, we deny the Koleniches' motions.

       {¶ 2} The facts and procedural history of this case, as well as the five assignments of

error the Koleniches raised in their direct appeal, are set forth in BAC II at ¶ 2-8 and will not

be repeated here. The Koleniches' motion for reconsideration largely involves the disposition

of their first assignment of error; however, the dispositions of the Koleniches' second and

third assignments of error are also involved since this court overruled those assignments of

error based on the Koleniches' representation that if we overruled their first assignment of

error, which we did, it would render the second and third assignments of error moot. BAC II

at ¶ 32.

       {¶ 3} In BAC II, the Koleniches argued in their first assignment of error that BAC was

required under Civ.R. 8(B) and 12(A)(2) to file a responsive pleading or reply to their

counterclaims within 14 days after this court issued its decision in BAC I, and since BAC

failed to do so, the trial court was required under Civ.R. 8(D) to deem the averments in their

counterclaims to be admitted and to grant default judgment or summary judgment on the

counterclaims as a result. BAC II at ¶ 20. They also argued that the trial court erred by

allowing BAC to file a late reply to their counterclaims because BAC failed to demonstrate

that its neglect in failing to file a timely reply was excusable. Id.

       {¶ 4} This court rejected the Koleniches' arguments, stating in pertinent part:

              There is nothing in Civ.R. 12(A)(2) that provides any express
              guidance as to what to do in situations like the one here, where
              the trial court has entered final judgment in the case, but the
              court of appeals reverses that judgment and remands the matter
              to the trial court for further proceedings consistent with the court
              of appeals' opinion. Therefore, the Koleniches' reliance on the
              14-day time limits in Civ.R. 12(A)(2)(a) and 12(A)(2)(b) is
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                 misplaced. Moreover, since the time limits established in Civ.R.
                 12(A)(2) do not apply in this type of situation where the trial court
                 is proceeding on remand from an appellate court, BAC's request
                 for leave to file a reply to the Koleniches' counterclaims cannot
                 be deemed to have been late. Additionally, there was no need
                 for BAC to establish, or for the trial court to find, that BAC's
                 failure to file its reply to the Koleniches' counterclaims earlier
                 than it did, constituted excusable neglect.

Id. at ¶ 27.

       {¶ 5} In their motion for reconsideration, the Koleniches acknowledge that Civ.R. 12

offers no guidance on how to proceed in instances involving a remand, but they argue R.C.

2505.39 does speak to this issue. R.C. 2505.39, captioned "Remanded cases," states in

relevant part:

                 A court that reverses or affirms a final order, judgment, or decree
                 of a lower court upon appeal on questions of law, shall not issue
                 execution, but shall send a special mandate to the lower court for
                 execution or further proceedings.

                 The court to which such mandate is sent shall proceed as if the
                 final order, judgment, or decree had been rendered in it.

(Emphasis added).

       {¶ 6} The Koleniches argue that the trial court was required under R.C. 2505.39 to

proceed on remand as if it had denied BAC's motion to dismiss the two counterclaims, and

that BAC was required under Civ.R. 12(A)(2) to file its reply to their counterclaims 14 days

after it received "notice" of the trial court's "action." They contend that the trial court's "action"

in this case arose by operation of law, i.e., R.C. 2505.39, and that BAC received "notice" of

this "action" on July 5, 2011, the date on which this court issued its decision in BAC I. They

then assert that BAC was obligated under Civ.R. 12(A)(2) to file its reply to their

counterclaims within 14 days of receiving "notice" of the trial court's July 5, 2011 "action," or

by July 19, 2011, and since BAC failed to do so, the averments contained in their

counterclaims must be deemed to have been admitted. They contend that this, in turn,


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entitles them to an award of default judgment or summary judgment on their counterclaims.

They also argue the trial court erred by allowing BAC to file an untimely reply to their

counterclaims without determining whether BAC's neglect in failing to file a timely reply was

excusable.

       {¶ 7} "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." City of Columbus v. Hodge, 37 Ohio

App. 3d 68 (1987), citing Matthews v. Matthews, 5 Ohio App.3d 140 (1981).

       {¶ 8} The Koleniches' motion for reconsideration raises an issue that this court failed

to consider in ruling on their assignments of error in BAC II, namely, the effect of R.C.

2505.39 on the issues raised in this case. Accordingly, the motion for reconsideration is well-

taken to the extent we will consider the effect of R.C. 2505.39.

       {¶ 9} Turning to the Koleniches' argument regarding the proper interpretation of R.C.

2505.39 and Civ.R. 12(A)(2), we note that the Koleniches have failed to cite any case in

which a court in this state has accepted their interpretation of those provisions. However, the

Tenth District Court of Appeals has rejected an argument very similar to the one the

Koleniches are raising here.

       {¶ 10} In Bridge v. Park Natl. Bank, 169 Ohio App. 3d 384, 2006-Ohio-5691 (10th

Dist.), William Bridge filed a complaint against Park National Bank (PNB), alleging

interference with a contract entered into by Bridge and a third party, and PNB filed a timely

answer to the complaint. Id. at ¶ 2. After PNB moved for summary judgment, Bridge

voluntarily dismissed his complaint without prejudice. Id. Bridge subsequently re-filed his

complaint, and PNB responded by moving to dismiss under Civ.R. 12(B)(6) for failure to state

a claim. Id. at ¶ 3. The trial court granted PNB's motion to dismiss. Id. Bridge appealed to
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the Tenth District, which reversed the dismissal and remanded the matter to the trial court for

further proceedings. Id. at ¶ 4.

       {¶ 11} During the remand proceedings, PNB realized it had not filed an answer to

Bridge's second complaint, so it filed a motion for leave to file an answer. Id. at ¶ 9. Bridge

opposed PNB's motion for leave and filed motions for summary judgment and for default

judgment. Id. at ¶ 10. The trial court denied PNB's motion and granted default judgment in

favor of Bridge. Id. PNB appealed to the Tenth District, which reversed the trial court's

decision for the following reasons:

              Civ.R. 12(A) governs the presentation of defenses and
              objections. A defendant may serve an answer within 28 days
              after service upon him, Civ.R. 12(A)(1), or may chose to present
              certain defenses by way of motion, Civ.R. 12(B). A motion to
              dismiss for failure to state a claim upon which relief may be
              granted is authorized by Civ.R. 12(B)(6) and may be presented
              by motion rather than answer.

              When a defendant elects to defend by filing an answer, the
              answer must be filed within 28 days after service. Civ.R.
              12(A)(2). When the defendant elects to defend by way of
              motion, the service of the motion alters the periods of time for
              filing an answer. When the trial court denies the motion, the
              defendant's responsive pleading, delayed because of service of
              the motion, must be filed within 14 days after notice of the court's
              action. Civ.R. 12(A)(2)(a).

              As noted above, [PNB] filed an answer and fully defended the
              first complaint, including the filing of a motion for summary
              judgment. [PNB] also defended the second complaint, but chose
              to proceed under Civ.R. 12(B)(6), before filing an answer. In the
              first appeal, we concluded that the trial court should not have
              granted the motion to dismiss under Civ.R. 12(B)(6), because the
              complaint adequately stated a claim upon which relief could be
              granted. We remanded the cause for further proceedings.
              [Bridge] argues that our decision that reversed the judgment and
              remanded the cause, together with reinstatement of the case in
              the trial court, in effect, denied the motion to dismiss, thus
              triggering the 14-day response time of Civ.R. 12(A)(2)(a). We
              disagree.

              An appellate court has such jurisdiction as may be provided by
              law to review and affirm, modify, or reverse judgments or final
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               orders of the courts of record inferior to the court of appeals
               within that appellate district. Section 3(B)(2), Article IV, Ohio
               Constitution. When an appellate court issues a decision that
               reverses a judgment or order of a trial court, the appellate court
               issues a mandate to the trial court to act in conformity with the
               ruling on appeal. It is the responsibility of the trial court to enter
               the judgment or order as directed by the mandate of the
               reviewing court.

               Once this court reversed the judgment of the trial court and
               issued a mandate directing the trial court to act, it was the
               responsibility of the trial court to comply with that mandate and
               issue an order overruling the motion to dismiss. It is the order of
               the trial court, made in compliance with the mandate of the
               appellate court that triggers the 14-day response of Civ.R.
               12(A)(2). Without an order of the trial court overruling the Civ.R.
               12(B)(6) motion to dismiss, the time for appellants to file their
               answer to the complaint did not begin to run. Therefore,
               appellants were not late in filing an answer in this case. The trial
               court erred in granting default judgment to appellee.

Bridge, 169 Ohio App. 3d at 385-89, 2006-Ohio-5691, ¶ 15-19.

       {¶ 12} We find the reasoning of Bridge to be persuasive and in keeping with the plain

language of both R.C. 2505.39 and Civ.R. 12(A)(2)(a). R.C. 2505.39 requires a trial court

that receives a special mandate from a court of appeals to proceed as if the court of appeals'

"final order, judgment, or decree" had been rendered in the trial court itself. As applied to this

case, R.C. 2505.39 requires the trial court to proceed as if it had denied BAC's motion to

dismiss the Koleniches' counterclaims.

       {¶ 13} Civ.R. 12(A)(2) provides that a plaintiff must serve his reply to a counterclaim

within 28 days after service of the answer or, if a reply is ordered by the court, within 28 days

after service of the order, unless the order otherwise directs. Where a motion permitted by

Civ.R. 12 is served, the period of time for filing a reply to a counterclaim is altered in that, if

the trial court denies the motion, the plaintiff's reply, delayed because of the service of the

motion, must be served within 14 days "after notice of the court's action[.]"               Civ.R.

12(A)(2)(a).


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       {¶ 14} The Koleniches argue the trial court's "action," for purposes of Civ.R.

12(A)(2)(a), was this court's decision in BAC I that reversed the trial court's dismissal of their

two counterclaims, coupled with the trial court's obligation under R.C. 2505.39 to proceed as

if it had rendered the judgment. They further contend that BAC was given "notice" of the trial

court's "action" when this court issued its decision in BAC I. Thus, the Koleniches are

essentially arguing that when a party receives constructive notice of a trial court's "action"

that arises by operation of law, i.e., R.C. 2505.39, this "constructive notice" of this so-called

"action" is sufficient to trigger the 14-day time limit in Civ.R. 12(A)(2)(a) for filing a response

to a counterclaim. We find this argument unpersuasive.

       {¶ 15} In particular, we disagree with the Koleniches' assertion that a "court action" for

purposes of Civ.R. 12(A)(2)(a) can consist of nothing more than a decision by a court of

appeals to reverse a trial court's judgment and remand the cause to the trial court, and that

this, coupled with the language in R.C. 2505.39 requiring the trial court to proceed as if the

judgment rendered in the court of appeals had been rendered in the trial court itself, requires

a response within 14 days by BAC. The language in Civ.R. 12(A)(2)(a) that states a

responsive pleading to a counterclaim must be served within 14 days "after notice of the

court's action" plainly contemplates that what triggers the running of the 14-day time limit is

the trial court's issuance of an order denying the motion. The Koleniches' argument that the

"notice" requirement of Civ.R. 12(A)(2)(a) can be satisfied by relying on constructive notice

arising by operation of law is contrary to what Civ.R. 12(A)(2)(a) envisions. Moreover,

adopting the Koleniches' argument regarding the proper interpretation of R.C. 2505.39 and

Civ.R. 12(A)(2)(a) would create an unfair and unjustifiable trap for the unwary litigant.

       {¶ 16} Therefore, we agree with the Tenth District's analysis in Bridge that once this

court reversed the judgment of the trial court in BAC I and issued a special mandate to the

trial court to engage in further proceedings consistent with our opinion, it became the trial
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court's responsibility to comply with our mandate and issue an order overruling BAC's motion

to dismiss. Bridge, 2006-Ohio-5691 at ¶ 19. The trial court's issuance of such an order

constitutes the "action" referred to in Civ.R. 12(A)(2)(a) and triggers the 14-day time limit set

forth in that provision. In the present case, the trial court never issued such an order, the 14-

day time limit set forth in Civ. R. 12(A)(2)(a) never began to run, and BAC was not late in

filing its reply to the Koleniches' counterclaims. Therefore, despite reconsideration, this

court's October 29, 2012 decision will stand.

       {¶ 17} The Koleniches argue in the alternative that our decision in BAC II is in conflict

with a number of decisions from the Fifth and Eighth District Courts of Appeal that have

purportedly held that a mandate is a directive from an appellate court to a trial court "to

proceed as if the ….judgment….had been rendered in it." [sic] However, this court has

acknowledged that we failed to consider R.C. 2505.39 in ruling on the Koleniches' first

assignment of error. We have now considered that section in ruling on the Koleniches'

motion for reconsideration and find that there is nothing in that section that causes us to

change the result of our judgment in BAC II. Moreover, the Koleniches have failed to point to

any specific language in any of the decisions with which BAC II allegedly conflicts.

Consequently, the Koleniches have failed to establish the existence of a certifiable conflict for

purposes of App.R. 25.

       {¶ 18} In light of the foregoing, the Koleniches' motion to certify conflict is denied.

       {¶ 19} This court's judgment of October 29, 2012, is hereby confirmed.


       RINGLAND and PIPER, JJ., concur.




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