[Cite as Linker v. Xpress Fuel Mart, 2019-Ohio-498.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            PAT LINKER,

                                         Plaintiff-Appellant,

                                                       v.

                             XPRESS FUEL MART, INC., et al.,

                                      Defendants-Appellees.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MA 0172


                            Appellee’s Application for Reconsideration


                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.


                                              JUDGMENT:
                                               Overruled.

Atty. Gregg A. Rossi, Rossi & Rossi, 26 Market Street, 8th Floor, Huntington Bank
Building, P.O. Box 6045, Youngstown, Ohio 44501, for Plaintiff-Appellant.

Atty. John W. Becker and
Atty. John M. Heffernan, Harpst Ross Becker Co., LLC, 1559 Corporate Woods
Parkway, Suite 250, Uniontown, Ohio 44685 address, for Defendants-Appellees.

                                       Dated: February 1, 2019


PER CURIAM.
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       {¶1}   On January 7, 2019, Appellee Xpress Fuel Mart, Inc. filed an application

for reconsideration of our December 20, 2018 decision in Linker v. Xpress Fuel Mart,

Inc., 7th Dist. No. 17 MA 0172, 2018-Ohio-5404. On January 11, 2019 Appellant Pat

Linker filed a brief in opposition to the application.

       {¶2}   Appellant appealed a November 1, 2017 decision of the Mahoning County

Common Pleas Court granting Appellee summary judgment on Appellant’s negligence

claim. Appellant was injured after he slipped and fell in Appellee’s store. On appeal,

we affirmed the decision in part, reversed in part and remanded, concluding that

summary judgment was precluded where a genuine issue of material fact existed

regarding the proximate cause of Appellant’s fall and subsequent injuries. Id. at ¶ 19.

       {¶3}   Appellee contends that no genuine issue of material fact exists and that

summary judgment was warranted. Appellee claims that Appellant failed to meet his

burden by failing to present any evidence that an unreasonably dangerous latent

condition existed and that Appellee created such a condition. Appellee also states that

the presence of water on Appellee’s floor was an open and obvious condition which

precludes Appellant’s negligence claim.

       {¶4}   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. Deutsche Bank Natl. Tr. Co. v. Knox, 7th

Dist. No. 09-BE-4, 2011-Ohio-421, ¶ 2, citing Matthews v. Matthews, 5 Ohio App.3d

140, 143, 450 N.E.2d 278 (10th Dist.1981). 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 or not

fully considered in the direct appeal. Deutsche Bank at ¶ 2.

Case No. 17 MA 0172
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      {¶5}   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. Id., citing State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956

(11th Dist.1996). Instead, App.R. 26 provides a mechanism by which a party may

prevent a miscarriage of justice that could arise when an appellate court makes an

obvious error or renders an unsupportable decision under the law. Id.

      {¶6}   We conducted a de novo review of the trial court’s decision to grant

summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before

summary judgment can be granted, the trial court must determine that: (1) no genuine

issue as to any material fact remains to be litigated, (2) the moving party is entitled to

judgment as a matter of law, (3) it appears from the evidence that reasonable minds can

come to but one conclusion, and viewing the evidence most favorably in favor of the

party against whom the motion for summary judgment is made, the conclusion is

adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977). Whether a fact is “material” depends on the substantive law of the claim

being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662

N.E.2d 1088 (8th Dist.1995).

      {¶7}   “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party

has a reciprocal burden of setting forth specific facts showing that there is a genuine

Case No. 17 MA 0172
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issue for trial. Id. at 293. In other words, when presented with a properly supported

motion for summary judgment, the nonmoving party must produce some evidence to

suggest that a reasonable factfinder could rule in that party’s favor.          Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

       {¶8}   After review of this record we concluded that, although there was very little

evidence presented, both sides introduced conflicting evidence regarding the cause of

Appellant’s fall. Appellant testified during his deposition that it had not been snowing

that day and that Appellee’s employee mopped the floor, making it wet, and that she

negligently failed to provide proper warning which led to his fall. Appellee’s employee

testified during her deposition that she mopped the floor within fifteen minutes of

Appellant’s fall because the floor was dirty and could have been wet from water tracked

in from outside, but that it was drying when Appellant entered. We concluded that the

trial court’s decision to grant summary judgment was improper where the record

contained conflicting testimony as to the cause of Appellant’s fall and that testimony

supported both sides’ positions. As a consequence, there is no obvious error in our

prior decision. Appellee simply disagrees with our logic and conclusions. Accordingly,

Appellee’s application is overruled.



JUDGE CHERYL L. WAITE


JUDGE GENE DONOFRIO


JUDGE KATHLEEN BARTLETT




Case No. 17 MA 0172
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                             NOTICE TO COUNSEL

      This document constitutes a final judgment entry.




Case No. 17 MA 0172
