Motion to Reconsider Dismissal in Duvall

The Attorney for US Bank recently filed a motion to reconsider the Ohio Supreme Court's decision to dismiss the certified conflict as being moot.  He cited authority that states that when an issue of great public importance remains, the Ohio Supreme Court has decided to hear the conflict even if the case has been rendered moot.  I believe there is a flaw in this thought process.  A certified conflict cannot be rendered moot by the parties.  The appellate decision which was found to conflict with another appellate decision still remains out there.  The conflict still exists.  The Ohio Supreme Court under Rule of Practice 12.2 could dismiss the certified conflict as not existing; i.e. we made a mistake thinking there was a conflict.  The Ohio Supreme Court under Rule of Practice 12.2 could dismiss the certified conflict as being previous determined by the Ohio Supreme Court in a prior case.

U.S. Bank vs. Duvall Dismissed as Moot

On September 21, 2011, the Ohio Supreme Court dismissed the certified conflict as moot.  There is not a great deal of case law on the subject because, (1) a certified conflict does not occur that often, and (2) even less often does a case that is certified as a conflict become "moot".  In fact, my first reaction when I was asked about the memorandum regarding mootness, was that it did not matter.  Even if the case was resolved, there still remained an appellate decision that conflicted with other appellate decisions.  With the issue being brought to the Ohio Supreme Court's attention, I sort of assumed that the Court would still want to resolve the issue.

Bank of America vs. Duvall Update

If you are following the certified question before the Ohio Supreme Court in Bank of America vs. Duvall then you are aware that Bank of America has recently filed its reply brief.  The briefing process can be frustrating at times.  Rather than address the issues and arguments presented, the opponents will mischaracterize the argument or the issue. 

A number of well educated professionals have differing opinions on the issue.  Rather than acknowledge the difference of opinion and argue the correctness of its position, Bank of America has decided that we cannot possibly be as smart.