Robert A. Nienast
Board of Trustees of the Fairfield
          County District

Case No. 2010 CA 011


Defendant-Appellee Board of Trustees of the Fairfield County Library District (“the Library Board”) files this memorandum in opposition to the motion (“Motion”) of Plaintiff-Appellant Robert A. Neinast (“Appellant”). The Appellant’s Motion was filed pursuant to Appellate Rule 26 and seeks to have the Court of Appeals reconsider its opinion filed in this case on November 15. 2010 (“the Opinion”). Because the Appellant has failed to meet the requirements for reconsideration, his motion should be denied.

Applicable Law

The law regarding when a court of appeals may grant a motion for reconsideration is well-settled. As stated by the Court of Appeals in Matthews v. Matthews, 5 Ohio App.1d 140, 450 N.E.2d 278 (Ohio App. 10 Dist. 1981):

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. (App.R. 26, construed.)

Matthews, supra, at Syllabus 2 (hereinafter, “the Matthews test”). A litigant’s mere disagreement with the decision of the Court of Appeals is a legally insufficient basis upon which to seek, or grant, a motion fot reconsideration.

An application for reconsideration is not designed for use in instances where party simply disagrees with the conclusions reached and the logic used by an appeals 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.

State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (Ohio App. 11 Dist. 1996). See also Wissler v. Ohio Department of Job and Family Services. 2010-Ohio-4123 (Ohio App. 10 2010), Par 2.

If a litigant cannot show that the prior opinion was obvious error or that the court either failed to consider or did not fully consider an issue when it should have, the reconsideration motion should he denied. Moreover, an applicant seeking reconsideration is required to “support the request [for reconsideration] with the necessary portions of the appellate record in order to prevail in its application.” Hampton v. Ahmed, 2005-Ohio-1766 (Ohio App. 7 Dist. 2005). Par. 16.

The Court’s Opinion here presents neither an obvious error nor is it “an unsupportable decision under law.” As shown below, the Appellant has failed to meet the Matthews test before a motion for reconsideration may be granted and, accordingly, his motion should he denied.

Appellant Seeks to Reargue Points Previously Rejected by this Court

At its core the Appellant’s Motion is little more than an attempt to reargue positions rejected in the Opinion, dressed up in the language of “obvious error”. For example, the Appellant’s Motion argues that the Fairfield Library must have policies that “rest upon a discernible public policy declaration by the General Assembly.” Appellant’s Motion at 4. This is the very same substantive argument that the Appellant made in his appellate brief filed on April 19, 2010. As evidence that the Motion’s substantive arguments are the same as those made in his appellate brief, in his Motion the Appellant cites his appellate brief in support of that substantive point. (See Appellant’s Motion at 4 which states “Also see Appellant’s Brief, pp. 18-22.”). In addition, the Appellant’s Motion reasserts substantive arguments regarding police power health and safety regulations (Motion at 6) that are substantially similar to arguments he previously asserted in his appellate brief (Appellate Brief at 23). The reassertion of those substantive arguments in the Appellant’s Motion does nothing to show the “obvious error,” or other shortcomings required by Matthews before a motion for reconsideration may be granted.

In order to prevail on its Motion, the Appellant must meet One of Matthews’ three requirements (obvious error, failure to consider an argument, or not fully considering an argument when it should have). The Appellant attempts to meet these requirements through what is, in reality, nothing more than a stylistic critique of this Court’s Opinion.

The essence of the Appellant’s reconsideration argument is that in in its Opinion this Court characterized – or mischaracterizcd – prior Neinast cases decided by either federal courts or sister courts of appeals as “precedent” or “settled case law”. (Appellant’s Motion at 2). He asserts that because neither federal case law nor opinions of sister courts of appeals are binding upon this Court, that this Court’s description of prior cases as “precedent” or “settled case law” is obvious error.1  Interestingly, the Appellant’s Motion does not assert that those prior Neinast cases were decided in “obvious error” and, indeed, states that “they might be considered persuasive authority” (Motion, at 2).2  It is difficult to reconcile how cases that might be consideted persuasive authority could, at the same time, constitute the basis for “obvious error”.

Other than its reassertion of already-rejected substantive arguments, the balance of the Appellant’s Motion criticizes this Court’s Opinion as insufficiently detailed.3  The Appellant’s critique comes nowhere near showing that the Opinion was “an obvious error” or that it rendered “an unsupportable decision under the law”, as required by Owens, supra.


Appellate Rule 26 was designed as a corrective measure through which “a party may prevent miscarriages of justice.” Owens, supra. The Appellant has made no such showing here, nor has he shown obvious error or this Court’s failure to sufficiently consider arguments it should have considered. The Appellant’s critique of this Court’s Opinion fails to meet the Matthews test and, accordingly, his motion for reconsideration should be denied in its totality.

  Respectfully submitted,
/s/     Jason M. Dolin          
Jason M. Dolin (0041820)
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 West Main Street, Ste. 101
Lancaster, Ohio 43130
Attorney for Appellee


The undersigned hereby certifies that the foregoing Memo Contra was served on the individual listed below this 30th day of November, 2010 by regular U.S. Mail, postage prepaid.

Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147

  /s/     Jason M. Dolin          
Jason M. Dolin


1. As stated in Appellant’s Motion, at 2:

“This Court’s opinion in this case, in a number of instances, refers to the decisions in the previous Neinast lawsuits [citation omitted] as “precedent” (Par. 34) or “settled case law” (Pars. 55, 56, and 69). To the extent that the opinion in the instant case relies on those statements, that is obvious error. Neither the opinion of a sister Ohio Court of Appeals nor the opinion of a Federal Court of Appeal is binding on this Court. They might be considered persuasive, but they are not binding.” [Back]

2. Later in his Motion the Appellant again concedes that this prior case law can be considered persuasive. (Motion at 3). [Back]

3. As stated in its Motion, at 6 “Appellant respectfully requests that this Court, as part of its reconsideration, actually specify what that discernible public policy statement from the legislature is.” [Back]