Opinion
Case No. 680.
November 5, 1999.
CHARACTER OF PROCEEDINGS: Motion for Review of Appeal 680.
JUDGMENT: Motion Denied.
APPEARANCES:
Atty. Harry W. Schmuck, For plaintiffs-Appellees.
Robert White, et al. Pro-Se, For Defendants-Appellants.
JUDGES: Hon. Cheryl L. Waite, Hon. Edward A. Cox, Hon. Gene Donofrio.
OPINION AND JOURNAL ENTRY
Appellants in this matter have filed what is styled as "Motion for Review of Appeal 680". In this motion, Appellants essentially reargue their case and have attached additional documents, including certain photographs. While Appellants' motion is not recognizable under the Rules of Appellate Procedure, this Court will treat the motion as an application for reconsideration pursuant to App. R. 26.
We must begin with a delineation of the appropriate standard of review of an appeal for reconsideration. While App. R. 26 does not itself provide such a standard, Ohio courts have generally stated that the question is whether the motion raises an obvious error in the court's original decision or raises an issue that was either not at all considered or not fully considered in the original opinion. State v. Black (1991), 78 Ohio App.3d 130, 132; Columbus v. Hodge (1987), 37 Ohio App.3d 68.
Insofar as Appellants have attached documents to their motion which were not before the trial court and thus not before us in our review of the record, it is axiomatic that a court of appeals is a court of review and that we will not and may not consider any evidence not properly before the lower court. Thus, the additional attachments are not properly before us and well be disregarded.
As earlier stated, Appellants' motion is, in essence, a rearguing of their original appeal with additional factual matters not before the lower court. Again, we may not consider any factual allegations which cannot be found in the record of the trial court. The Appellants, outside of these new allegations, argue nothing within their motion which points to an obvious error in the original decision or to an issue which was not ruled upon in part or in full. For this reason, Appellants' motion must be denied.
Appellants also, within the body of this motion, seek a stay of execution of the trial court order, "to move the fence". This Court will grant a stay of a lower court order only during the time an appeal is pending in this Court or upon seeking a further review of our decision by the Supreme Court of Ohio, and then only in certain instances. As the matter is no longer pending here and Appellants do not allege that they have filed a further appeal, this request for stay is also denied.
___________________________________ CHERYL L. WAITE
___________________________________ EDWARD A. COX
___________________________________ GENE DONOFRIO, JUDGES