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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
March 21,2023 13:59
By: CAROLYN M. DOWNEY 0064371
Confirmation Nbr. 2807296
LAURA CYROCKIET. AL., ET AL CV 23 975151
vs.
Judge: JOAN SYNENBERG
CITY OF CLEVELAND ET. AL., ET AL
Pages Filed: 5
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY
LAURA CYROCKI, et al., ) CASE NO. CV -23-975151
)
Appellants, ) JUDGE JOAN SYNENBERG
)
Vs. )
)
)
CITY OF CLEVELAND, et al., ) APPELLEE CITY OF CLEVELAND
) BRIEF IN OPPOSITION TO
Appellees. ) MOTION FOR RECONSIDERATION
) TO LIFT TEMPORARY STAY
The Appellees, City of Cleveland, et al. ("City") moves this Honorable Court to Deny the
Appellants' Motion for Reconsideration to Lift Temporary Stay for the reasons set forth in the
attached brief.
Respectfully submitted,
MARK D. GRIFFIN (0064141)
Director of Law
By: /s/ CAROLYN M. DOWNEY
CAROLYN M. DOWNEY (0064371)
Assistant Director of Law
City Hall—Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
Phone (216) 664-3567
Fax (216) 420-8291
cdowney@clevelandohio.gov
Attorneys for Appellees
City of Cleveland, et al.
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
BRIEF IN SUPPORT
Appellate Rule 26(A) (1) 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 and
unsupportable decision under the law. State v. Owens (1996), 112 Ohio App.3d 334.
The City of Cleveland ("City") opposes the Appellants' Application for Reconsideration as
it has failed to meet the requirements for reconsideration. In order to prevail on its Application
for Reconsideration, the Appellants' must meet one of the following three requirements:
1. Obvious error;
2. Failure to consider an argument; or
3. Not fully considering an argument when it should have.
Cleveland Clinic Found. V. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98115, 2012-
Ohio-6008; State v. Dunbar, 8th Distr. Cuyahoga No. 873, 2007-Ohio-3261; Columbus v. Hodge
(1987), 37 Ohio App.3d 68.
An application for reconsideration is not a vehicle to reargue the appeal or to express
general disagreement with the appellate court decision. An application for reconsideration may
not be filed simply on the basis that a party disagrees with the prior court's decision. State v.
Owens (1966), 112 Ohio App.3d 334. A litigant’s mere disagreement with the decision of the
court is a legally insufficient basis upon which to seek, or grant, a motion for reconsideration. Id.
Reconsideration is not an opportunity to introduce new "evidence" or to "re-litigate" the
facts of the case. Merely stating that reconsideration is necessary to prevent a miscarriage of
justice is insufficient to compel reconsideration under the appellate rules and case law. The
Appellant must demonstrate some exceptional circumstances to merit reconsideration. A court
will not grant an application for reconsideration merely because a party disagrees with the logic
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
or conclusions of the underlying decision. Callander v. Callander, 10th Dist. No. 07AP-746, 2008-
Ohio-3128.
The general rule is that a motion for reconsideration should be granted when the motion
requesting it "call 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.” Kollmorgan v Raghaven, 2001 WL 911569 (7th dist.) citing State v. Young
(February 3, 2000), Belmont County App. No. 96 BA 34, citing Ottawa County v. Marblehead
(1995), 102 Ohio App.3d 306, 657 N.E. 2d 287.
The Journal Entry dated March 16, 2023 states in pertinent part "Upon review of
Appellants' Motion for Stay and Appellants' [Appellees'] Briefs in Opposition, the
Temporary Stay Ordered by this court on 3/10/2023 is hereby lifted." While the Court
did not articulate each and every argument made by the parties in their pleadings as
rationale for its decision, the court acknowledged reviewing all of the briefs. It is apparent
that the Court fully considered the entirety of the arguments when it decided to lift the
temporary stay.
Appellants also argue that the court "denied the Appellants' Motion to Show Cause
from which the journal entry offered no explanation as to why Appellee City of Cleveland
was excused from having to show cause for their actions ..." The Court stated the
"Appellee Ford-Hessler Property Reorganization was not property served with this Court's
3/10/2023 Order, as they were not yet a party to the action." The City of Cleveland was
not excused. The Court could not grant the Motion to Show Cause which would have
affected the property owners who had not been served. And as argued in the City's Brief
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
in Opposition the issuance of the building permit was not willful or malicious disregard of
the Court's Order.
CONCLUSION
Appellate Rule 26 is designed to be a corrective method to prevent miscarriages of justice.
Owens, supra. The Appellants have made no such showing here, nor have they shown an obvious
error by the court or that the court failed to sufficiently consider arguments that it should have
considered.
The Appellants' Application for Reconsideration is predicated in error and should be denied.
The Appellants' fails to present a proper reason for this Court to reconsider its decision.
This Court properly affirmed the trial court's decision when it found the trial court did not
abuse its discretion and the Application for Reconsideration should be denied.
For all of the reasons stated in this Brief, Appellee, City of Cleveland requests that this
Court deny Appellants' Motion for Reconsideration to Lift Temporary Stay.
Respectfully submitted,
MARK D. GRIFFIN (0064141)
Director of Law
By: /s/ CAROLYN M. DOWNEY_____
CAROLYN M. DOWNEY (0064371)
Assistant Director of Law
City Hall—Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
Phone (216) 664-3567
Fax (216) 420-8291
cdowney@clevelandohio.gov
Attorneys for Appellee
City of Cleveland, et al.
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Appellee City of Cleveland Brief in
Opposition Appellants' Motion for Reconsideration to Lift Temporary Stay was filed
electronically this 21st day of March 2023. Notice of this filing will be sent by operation of the
court's electronic filing system to counsel of record for all parties as indicated on the electronic
filing receipt. Parties and their counsel may access this filing through the Court's system.
A copy of the Appellee City of Cleveland Brief in Opposition Appellants' Motion
for Reconsideration to Lift Temporary Stay was sent by Email on the 21st day of March
2023 to the following:
Laura Cyrocki Appellant
11303 Hessler Road
Cleveland, OH 44106
Lcyrocki@ hotmail.com
Charles E. Hoven Appellant
11301 Hessler Road
Cleveland, OH 44106
plainpress@gmail.com
Majeed G. Makhlouf, Esq. Ford-Hessler Property Reorganization LLC
Berns, Ockner & Greenberger, LLC
3733 Park East Drive, Suite 200
Beachwood, OH 44122
mmakhlouf@bernsockner.com
/s/ CAROLYN M. DOWNEY_____
CAROLYN M. DOWNEY
ASSISTANT DIRECTOR OF LAW
Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION March 21,2023 13:59 By: CAROLYN M. DOWNEY 0064371 Confirmation Nbr. 2807296 LAURA CYROCKIET. AL., ET AL CV 23 975151 vs. Judge: JOAN SYNENBERG CITY OF CLEVELAND ET. AL., ET AL Pages Filed: 5 Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY LAURA CYROCKI, et al., ) CASE NO. CV -23-975151 ) Appellants, ) JUDGE JOAN SYNENBERG ) Vs. ) ) ) CITY OF CLEVELAND, et al., ) APPELLEE CITY OF CLEVELAND ) BRIEF IN OPPOSITION TO Appellees. ) MOTION FOR RECONSIDERATION ) TO LIFT TEMPORARY STAY The Appellees, City of Cleveland, et al. ("City") moves this Honorable Court to Deny the Appellants' Motion for Reconsideration to Lift Temporary Stay for the reasons set forth in the attached brief. Respectfully submitted, MARK D. GRIFFIN (0064141) Director of Law By: /s/ CAROLYN M. DOWNEY CAROLYN M. DOWNEY (0064371) Assistant Director of Law City Hall—Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077 Phone (216) 664-3567 Fax (216) 420-8291 cdowney@clevelandohio.gov Attorneys for Appellees City of Cleveland, et al. Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ BRIEF IN SUPPORT Appellate Rule 26(A) (1) 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 and unsupportable decision under the law. State v. Owens (1996), 112 Ohio App.3d 334. The City of Cleveland ("City") opposes the Appellants' Application for Reconsideration as it has failed to meet the requirements for reconsideration. In order to prevail on its Application for Reconsideration, the Appellants' must meet one of the following three requirements: 1. Obvious error; 2. Failure to consider an argument; or 3. Not fully considering an argument when it should have. Cleveland Clinic Found. V. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98115, 2012- Ohio-6008; State v. Dunbar, 8th Distr. Cuyahoga No. 873, 2007-Ohio-3261; Columbus v. Hodge (1987), 37 Ohio App.3d 68. An application for reconsideration is not a vehicle to reargue the appeal or to express general disagreement with the appellate court decision. An application for reconsideration may not be filed simply on the basis that a party disagrees with the prior court's decision. State v. Owens (1966), 112 Ohio App.3d 334. A litigant’s mere disagreement with the decision of the court is a legally insufficient basis upon which to seek, or grant, a motion for reconsideration. Id. Reconsideration is not an opportunity to introduce new "evidence" or to "re-litigate" the facts of the case. Merely stating that reconsideration is necessary to prevent a miscarriage of justice is insufficient to compel reconsideration under the appellate rules and case law. The Appellant must demonstrate some exceptional circumstances to merit reconsideration. A court will not grant an application for reconsideration merely because a party disagrees with the logic Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ or conclusions of the underlying decision. Callander v. Callander, 10th Dist. No. 07AP-746, 2008- Ohio-3128. The general rule is that a motion for reconsideration should be granted when the motion requesting it "call 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.” Kollmorgan v Raghaven, 2001 WL 911569 (7th dist.) citing State v. Young (February 3, 2000), Belmont County App. No. 96 BA 34, citing Ottawa County v. Marblehead (1995), 102 Ohio App.3d 306, 657 N.E. 2d 287. The Journal Entry dated March 16, 2023 states in pertinent part "Upon review of Appellants' Motion for Stay and Appellants' [Appellees'] Briefs in Opposition, the Temporary Stay Ordered by this court on 3/10/2023 is hereby lifted." While the Court did not articulate each and every argument made by the parties in their pleadings as rationale for its decision, the court acknowledged reviewing all of the briefs. It is apparent that the Court fully considered the entirety of the arguments when it decided to lift the temporary stay. Appellants also argue that the court "denied the Appellants' Motion to Show Cause from which the journal entry offered no explanation as to why Appellee City of Cleveland was excused from having to show cause for their actions ..." The Court stated the "Appellee Ford-Hessler Property Reorganization was not property served with this Court's 3/10/2023 Order, as they were not yet a party to the action." The City of Cleveland was not excused. The Court could not grant the Motion to Show Cause which would have affected the property owners who had not been served. And as argued in the City's Brief Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ in Opposition the issuance of the building permit was not willful or malicious disregard of the Court's Order. CONCLUSION Appellate Rule 26 is designed to be a corrective method to prevent miscarriages of justice. Owens, supra. The Appellants have made no such showing here, nor have they shown an obvious error by the court or that the court failed to sufficiently consider arguments that it should have considered. The Appellants' Application for Reconsideration is predicated in error and should be denied. The Appellants' fails to present a proper reason for this Court to reconsider its decision. This Court properly affirmed the trial court's decision when it found the trial court did not abuse its discretion and the Application for Reconsideration should be denied. For all of the reasons stated in this Brief, Appellee, City of Cleveland requests that this Court deny Appellants' Motion for Reconsideration to Lift Temporary Stay. Respectfully submitted, MARK D. GRIFFIN (0064141) Director of Law By: /s/ CAROLYN M. DOWNEY_____ CAROLYN M. DOWNEY (0064371) Assistant Director of Law City Hall—Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077 Phone (216) 664-3567 Fax (216) 420-8291 cdowney@clevelandohio.gov Attorneys for Appellee City of Cleveland, et al. Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellee City of Cleveland Brief in Opposition Appellants' Motion for Reconsideration to Lift Temporary Stay was filed electronically this 21st day of March 2023. Notice of this filing will be sent by operation of the court's electronic filing system to counsel of record for all parties as indicated on the electronic filing receipt. Parties and their counsel may access this filing through the Court's system. A copy of the Appellee City of Cleveland Brief in Opposition Appellants' Motion for Reconsideration to Lift Temporary Stay was sent by Email on the 21st day of March 2023 to the following: Laura Cyrocki Appellant 11303 Hessler Road Cleveland, OH 44106 Lcyrocki@ hotmail.com Charles E. Hoven Appellant 11301 Hessler Road Cleveland, OH 44106 plainpress@gmail.com Majeed G. Makhlouf, Esq. Ford-Hessler Property Reorganization LLC Berns, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, OH 44122 mmakhlouf@bernsockner.com /s/ CAROLYN M. DOWNEY_____ CAROLYN M. DOWNEY ASSISTANT DIRECTOR OF LAW Electronically Filed 03/21/2023 13:59 / BRIEF / CV 23 975151 / Confirmation Nbr. 2807296 / CLJSZ