[Cite as Bank of Am. v. Miller, 2016-Ohio-7018.]


                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

TRACY KINDERDINE, et al.                           )
                                                   )
        PLAINTIFFS-APPELLEES                       )
                                                   )
V.                                                 )         CASE NO. 14 MA 0180
                                                   )
MAHONING COUNTY EDUCATIONAL                        )               OPINION
SERVICE CENTER, et al.                             )                AND
                                                   )           JUDGMENT ENTRY
        DEFENDANTS-APPELLANTS

CHARACTER OF PROCEEDINGS:                          Motion to Certify a Conflict

JUDGMENT:                                          Denied
                                                           -2-


APPEARANCES:
For Plaintiffs-Appellees   Attorney W. Craig Bashien
                           Attorney Anthony N. Palombo
                           Bashein & Bashein Co., L.P.A.
                           Terminal Tower, 35th Floor
                           50 Public Square
                           Cleveland, Ohio 44113

                           Attorney Paul Flowers
                           Paul W. Flowers Co., L.P.A.
                           Terminal Tower, 35th Floor
                           50 Public Square
                           Cleveland, Ohio 44113

                           Attorney Thomas J. Wilson
                           Comstock, Springer & Wilson Cp., L.P.A.
                           100 Federal Plaza East, Suite 926
                           Youngstown, Ohio 44503-1811

For Defendants-Appellant   Attorney Todd Grey
                           Attorney Brendan Richard
                           Lewis Brisbois Bisgaard & Smith, L.L.P.
                           1375 E. 9th Street, Suite 1600
                           Cleveland, OH 44114




JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                           Dated: September 23, 2016
[Cite as Bank of Am. v. Miller, 2016-Ohio-7018.]
PER CURIAM.

        {¶1}    Plaintiffs–Appellees, Tracy Kinderdine et al., have filed a motion
requesting that we certify two conflicts to the Ohio Supreme Court between this
court's June 30, 2016 judgment in the instant case, Kinderdine, et al., v. Mahoning
County Educational Service Center, et al., 7th Dist. No. 14 MA 0174, 0177, 0180,
0181, 2016–Ohio–4815, and the Eighth District's judgment in Kerber v. Cuyahoga
Hts., 8th Dist. No. 102419, 2015-Ohio-2766, regarding physical defects, and the Sixth
District's decision in Seiler v. Norwalk, 192 Ohio App.3d 331, 2011-Ohio-548, 949
N.E.2d 63 (6th Dist.) regarding the restoration of immunity. Defendants–Appellants,
Mahoning County Educational Service Center, et al., filed a brief in opposition.
        {¶2}    A court of appeals shall certify a conflict when its judgment is in conflict
with the judgment pronounced upon the same question by any other court of appeals
in the state of Ohio. Section 3(B)(4), Article V, Ohio Constitution. In order to certify a
conflict to the Ohio Supreme Court, we must find that three conditions are met:

        First, the certifying court must find that its judgment is in conflict with the
        judgment of a court of appeals of another district and the asserted
        conflict must be "upon the same question." Second, the alleged conflict
        must be on a rule of law-not facts. Third, the journal entry or opinion of
        the certifying court must clearly set forth that rule of law which the
        certifying court contends is in conflict with the judgment on the same
        question by other district courts of appeals.

Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
(Emphasis sic.)
        {¶3}    The Kinderdines have set forth two issues which they contend require
certification to the Ohio Supreme Court:

        1. Does the phrase "due to physical defects" set forth in R.C.
            2744.02(B)(4) require that the physical defect must always be the

            actual instrumentality that inflicts the injury?
                                                                                    -2-


       2. In order to restore immunity under R.C. 2744.03(A)(5) must the
           political subdivision establish with admissible evidence that
           discretionary decisions were rendered?

       {¶4}   The Kinderdines have not met the standard for conflict certification; our
judgment here does not conflict on a rule of law with the Eighth District in Kerber, nor
with the Sixth District in Seiler. Rather, they are factually different. Factual distinctions
are not a basis for certification. Whitelock, supra.
       {¶5}   Accordingly, the Kinderdines' motion to certify a conflict is denied.


DeGenaro, J., concurs.

Waite, J., concurs.

Robb, J., concurs.
