appellant, james e. lundeen, sr., m.d., hereby gives ... appellant, james e. lundeen, sr., ... en...
TRANSCRIPT
James E. Lundeen, Sr., M.D.
Appellant,
-V.-
On Appeal from the FranklinCounty Court of Appeals, TenthAppellate District
Court of AppealsOhio State Medical Board . Case Number 12-AP-000629
Appellee.
..................................................................................................................................................................................................
Notice of Appeal of Appellant, James E. Lundeen, Sr., M.D.
..... _...
James E. Lundeen, Sr., M.D. pro se120 Hawthorne Lake DriveBloomington, Illinois 61704(740) [email protected]
Katherine J. Bockbrader, 0066472Senior Assistant Attorng General30 East Broad Street, 26 FloorColumbus, Ohio 43215(614) 466-8600 fax (866) 805-6094Email [email protected]
1`Ieniry G. Appel, 0068479Senior Assistant Attom General30 East Broad Street, 26 FloorColumbus, Ohio 43215(614) 466-8600 fax (866) 441-4738Email [email protected]
Counsel for Appellee, Ohio State Medical Board
IN TBE SUPREME COURT OF OHIO
Appellant, James E. Lundeen, Sr., M.D., hereby gives notice of appeal to the Supreme
Court of Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate
District, entered in Court of Appeals Case No. 12-AP-000629 on March 28, 2013. This case
raises substantial constitutional questions and is one of great public or general interest.
submitted,
J" E.;Lundeen, Sr., M.D. pro se-10 Havvtl:orne Lake DriveBloomington, Illinois 61704(740) 415-6612 fax (216) 397-1213Email [email protected]
2
C'e^^ficate of Serwce
I certify that a copy of the foregoing Notice of Appeal was sent on Apri122, 2013, to the
following by regular U.S. Mail, post prepaid and properly addressed:
Katherine J. Bockbrader, 0066472Senior Assistant Attom General30 East Broad Street, 26 FloorColumbus, Ohio 43215(614) 466-8600
Henry G. Appel, 0068479Senior Assistant Attom General30 East Broad Street, 26 FloorColumbus, Ohio 43215(614) 466-8600
Counsel foi,,Appeilee, Ohio State Medical Board
E.Xmi€1een, Sr., M.D. pro se
Dated: Apri122, 2013
DECISION AND JOURNAL EN TRY
OA€^ 31 .., 036
IN ^^^ COURT OF ,^PEAIS OF OMC3
TENTII .^PELIA`(°^ DI^TRICT
James E. Lundeen, Sr., M.D.,
App tAppellant,
V.
State Medical Board of Obio,
Appellee App.ellee.
No.12AP-62g(C.P.C. No. iiCV46295)
(ACC T^ CALBNDAR)
MEMORANDUM DECISION
Rendered on March 28, 2013
James E. .Lundeen, Sr., MD., pro se.
Michael DeWine, Attorney General, Kath^^ J. Bockbrader,and Henry G. ^pel, for appeRee.
ON APPUCd^.'^ONS FOR RECONSIDERATIONAND CONSIDERA1`^ON EN RANC
SADLM J.
1111 On January 28, 2013, appellant, James E. Lundeen, Sr., M.D., ^°iled
applications for reconsideration, pursuant to App.R. 26(A)(i)5 and for consideration en
bane, pummant to A.pp.P. 26(A)(2), based on our January 17, 2oi3 decision in Lundeen v.
State Med Bd, e,^°OhioF toth. I3ist. No. 12AP-629, 2o13-43bio-i12. Finding neitliex obvious
error wamntmg reeortsideration nor an intm-disffiet eonfli.et, wananting en bane
consideration, we deny appellant's applications for the reasons set forth below.
OA031 m 037
No. 12APa6^^
I. ^^^^O'LTND
2
11121 In our January 17, 2013 dedsion, we af"inned a judgment of the ^ankhn
County Court of ^^on Pleas that afffimed the order of the State Medical Board of Ohio
("the Board") tly^ revoking appeRmt4s license to practice medicine hi Ohio. On
appeal, appellant argued the Boards use of certified mafl rendered the Board's orders void
and stx°ipped the Board of subject-matter jurisdiction. Appellant also chaUenged the
consfitutionali.ty of portions of the Medical Practices Act, set forth in R.C. Chapter 4731.
This court ^nduded appellant wmved the nglit to appeal the issues asserted m lns
assWied errors because said issues were being raised for the first time on appeal. We also
zejected appellant's argument that the Board7s use of certified mail required a ^ndusion
that the Board lacked subject-matter jurisdiction to wlich the waiver doctrine does not
apply, and we also explained why the Board`s use of certified mail was not mappropnate
in this case. Ap t chaU^^ our deeLsion in ba.s applications for reconsideration and
en b^e coxmderati^^ For the following reasons, we find both applications to be without
merit.
I] I APPLICXri.C^N FOR ^^^^^^^ERATIO,a.̀^'
{q 3} We begin with ap t°s applir-ation for reconsideration filed pursuant to
AppaP, 26(A)(i)° Wben presented with an application for reconsideration, an appellate
court must consider whether the agpheatfon "cals to the attention of the court an ob^^^
error in its dedsion or raises an issue for corxsideration that was either not considered at
alft or was not fully considered by the court when it should bave been." Matthews v°
Matttheivs$ 5 Ohia App.3d i4o (ioth Dist,^q&), pamgmph tm of the syllabus. However,
"[a]n appiteation for recorisid^rataon is not designed for use in instances where a party
simply dmgms with the conclusions reached and the logic used by an s.ppeUate court."
State v. ftvens, U2 Ohio App.3d 334q 3^6 (iith D%st.1996)S dismissed, appeal not all.owed,
r 0h10 Sta3d ^^^ (jL996)=
1141 in his application for reconsideration, appellant assexts this court's decision
cont^ ^^^cant and smous mws°" x°egardmg the apgtieable statutes and laws.
(AppeUaxt°s brief, 8.) Appellant contends our decision misquotes various statutory
pxov.s^ons and misapplies the law. Iriti.ally$ we note we rejected appellant's arguments
challenging service by certified mail on the bwds that such arguments were waived for
oAo31 ,-, 038
ti
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No. 12A.P-629 3
failure to have raised them below. Thus, even 3f appeflant is correct in his assertion that
the decision contains an inaccmte quotation, such is inconsequential and does not
entitle appellant to reconsideration of our decis%on. Moreover, not only do we reject
appellant's assertion that the law has been rnisapplied in setting forth the requisite
statutory provisions, appellant sets forth the very basis of this court's explanation of why
the Board's use of certified mail in this instance was not inappropriate. Specificaily,
appellant quotes the pertinent law, as was quoted in our decision, that R.C. 4731.22(G)(2)
pernuts the use of " ° ed mail," and R.C. 1.02(G) indicates "registered mail" and
" ° ed mail" are int eabi.e tmns. Thus, appellant has not provided a basis for
reconsideration of our decision.
ff 51 Though appellant expresses clear disagreement with this court's
conclusions, analysis, and treatment of the statutes, we do not find that appellant calls to
oYxr attention an obvious error warranting reconsideration nor does he raise an issue not
considered or not fully considered by this court. Mat-thews. Disagreement with this
court's analysis and conclusions is ° cient to meet the test for granting
reconsideration. See Nunley v. Wayne BLdIders C*.orp., ioth Dist. No. 98AF-12o2
(Aug. 12, 1999).
{,16} Accoxdiney, appellant's application for reconsideration is denied.
%: %, 1^^ ^N FOR EN BANC CONSIDE AnON
ff 7) We now turn to appellant's application for en banc consideration. "[Iff the
judges of a court of appeals deterrnane that two or more decisions of the court on which
they sit are in conflict, they must convene en banc to resolve the conflict." MMcFadden v.
Cleveland State Um:v,, 120 Ohao St.3d 54, 2oo8--Ohio-49x4, paragraph two of the
syllabus. The standard for se " en banc consideration is outlined in App.R. 26(A)(2).
To apply for an banc consideration, a party "must explain how the panel's decision
conflicts with a prior panel's decision on a dispositive issue and why consideration by the
court en bane is necessary to secure and maintain uniformity of the court's decisions."
App.R. 26(A)(2)(b). "Consideration en banc is not favored and will. not be ordered unless
necessary to secu.re or nxaintain uniformity of decisions within the district on an issue that
is dispositive in the case in which the application is filed." App.R. 26(A)(2)(a).
oAo31 .., 039
No. 12AP-629 4
(1181 Appellant cl ' that our January 17, 2o13 declsion conflicts with prior
decisions of this court rendered in Columbus v. Sliker, 30 Ohio App.3d 74 (ioth
Dist.1986), Porter v. State Med. Bd. of Olxio, ioth Dist. No. o5AP-1339, 2oo6-Ohio-5296'
and Doriott v. State Med. Bd. of Ohio, ioth Dist. No. o5AP-Yo7g, 2oo6-0hio-2171.
Though appellant contends we must convene en banc to resolve a conflict between these
decisions, we see no conflict as the cases he cites are factually dissfmilar.
119} In Sliker, the defendant sought review of his conviction for driving without a
valid operator's license and driving whUe under ensaon in violation of the Columbus
City Code. Because the Registrar of the Bureau of Motor Vehicles ("the bureau") did not
comply with the req ' ents of R.C. iig.o6 and 11g.o7, this court held the bureau's
order canceMng the defendant's Ohio driver's license was invalid such that he could not
be convicted of the subject offenses. Unlike the case before us, Sliker did not concern an
appeal from an a ' trative agency nor a contention that the appellant's arguments
were waived for failure to raise them below. Moreover, Sliker does not discuss subject-
matter jurisdiction nor does it hold that the failure to comply with the requirements of
R.C.1ig.o6 and 119.071eft the bureau without subject-matter jurisdiction.
fq 10} In Porter, the Board issued an order permanently revoking the appellant's
license to pracdce medicine. The trial court reversed the Board's order after fin ' the
Board's notice of hearing failed to comply with R.C. l1g.o7. Specifically, the triai court
held that because certified mail service of the Board's notice of hearing was not completed
and the Board did not then publish or make personal delivery service, the appellant did
not lose lus right to a hearing. Therefore, the trial court remanded the matter to the
Board for ftuther Thfscourt affirmed.
{q 11} The facts in Porter are not analogous to those presented in the instant
matter. Porter did not concern a waiver argument since ineffective service of the notice of
hearing was the litigant's contention in the trial court as well as on appeal. Further,
though apg t contends he did not '°see® the notice sent by the Board, the record
reflects service by certified mail was perfected in this case as opposed to being returned as
unclaimed, as was the case in Porter. Additionally, like Sliker, Porter neither discusses
subject-matter jurisdiction nor holds that a failure to comply with the requirements of
RC. 119.07 leaves the Board without subject-matter jtzrisdiction.
®A03I -- 040
No.1aAP-bag 5
{q 12} Finally, Doriott concerned an order of the Board that indefirutely suspended
a license to practice medicine after the licensee failed to appear for an ordered
examination to assess for impairment. The appellant argued the Board's failure to
provide her with notice of her right to a pre- or post-decision hearing rendered the
Board's order void. This court agreed and instructed the trzal court to issue an order
remanding the matter to the Board for further proce ° s. Like Sliker and .Porter,
waiver was not at issue in Doriott, and the factual scenario presented in Doriott is not
aldn to that presented here. Further, while Doriott held the Board's order was void, it did
not hold the Board lacked subject-matter jurisdiction.
(1131 After review, we conclude our January 17, 2013 decision does not conflict
with Sliker, Porter or porzott but, rather, comports with the same. Be.eause there is no
conflict, we deny appellant's application for en bane consideration.
IV. CONCLUSION
111141 For the above reasons, we find appellant has failed to satisfy the grounds for
reconsideration under App.R. 26(A)(1) and the grounds for en banc consideration in
App.R 26(A)(2). Accor ' y, appellant's applications are denied.
Appixcations for reconsideration anden banc corrstderation d ° .
BROWN & DO , JJ., concur.
€3A032 ... D21
IN I^l' A COURT OF APPEALS OF OHIO
TEN'I°H APPELtA'I°F, DISTRICr
James L. Lundeen, Sr., M.D.,
V.
Appellant-Appellant,No. 12AP-629
(C;.P.C;. N®.11CV-16295)
State Medical Board of Ohio, (A.CC 'T`E,D CAIENDAR)
^ppellee-^^^^^
JOLTRNALENTR^.'"
For the reasons stated in the memorandum dmWon of this court rendered
heivin on Mardl 28, 2013, it is the ordff of t^ court that ap t's applications for
reconsideration and en bane consideration are denied.
SADIER, BROWN, and DE3 $ JJ.
'.^ ';:;"'^'•i-^--,.;t.-::. .e •^^'-,.,'"- --------------------- -____________.^_ ...________---------___ ___________
0A032 ... D22
0
Tenth District Court of Appeals
Da.tex
Case MtleV
C^ Number:
Typc
03-28-2013
JAMES E LUNDEEN SR MD -VS- OHIO STATE MEDICALBOARD12AP000629
JOURNAL ENTRY
So Ordered
.^;.
Isl Judge Lisa L. Sadler
Efectronacaliy sfgned on 2013-Mar-28 page 2 oF 2
oA032 - D23
Court Disposition
Case Number: 1 2AP000629
^^^^ StyIe: JAMES E LUNDEEN SR MD -VS- OHIC7 STATEMEWAL BOARD
Motion Tie Off Information:
1. Motaon CMS Document Id: ;i^^;.;'->^ ;; ^•; /i ,: ^,,,_ ,,
Document Title: 01-28m20139MOTI^N TO f^^CONSIDER
Disposition: 3200