Besancon v. Cedar Lane Farms, Corp. , 2017 Ohio 347 ( 2017 )

[Cite as Besancon v. Cedar Lane Farms, Corp., 2017-Ohio-347.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
WILLIAM BESANCON, et al. C.A. No. 16AP0003
Appellees/Cross-Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CEDAR LANE FARMS, CORP., et al. COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellants/Cross-Appellees CASE No. 2014 CVC A000251
DECISION AND JOURNAL ENTRY
Dated: January 31, 2017
WHITMORE, Judge.
{¶1} Cedar Lane Farms, Corp. (“Cedar Lane”) appeals from the judgment of the
Wayne County Court of Common Pleas. William and Sandy Besancon (“the Besancons”) cross-
appeal. This Court affirms in part and reverses in part.
I.
{¶2} This appeal involves a series of agreements between Cedar Lane and the
Besancons or their predecessors. In 1986, Cedar Lane and Mr. Besancon’s parents entered into a
10-year lease agreement for certain property owned by Mr. Besancon’s parents. The leased
property was identified by the parties as parcels A and B in a drawing attached to the lease. The
agreement provided the option to renew the lease for two additional 10-year periods. In 1992,
the property was transferred to the Besancons. In 1996, Cedar Lane and the Besancons executed
their first “Memorandum of Lease Extension.”
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{¶3} In 2006, the Besancons filed an eviction action against Cedar Lane. The parties
settled that lawsuit and had the terms of their settlement transcribed by a stenographer. The
transcribed settlement stated that “the parties will enter into a Memorandum Extension which for
the period of 2006 to 2016 will require rent in the amount of $1,000 per month[.]” It continued,
“there will be a $2,400 payment paid today for consideration of a lease extension for an
additional five-year period extending from 2017 to 2021, and also in consideration of that
extension a second payment will be made * * * by June 30th of 2007 in the amount of $3,000.”
The transcribed settlement then addressed the rent amount for the extension period and the
disposition of various assets upon the lease’s termination.
{¶4} Thereafter, the parties executed a “Memorandum of Second Lease Extension”
(“Second Lease Extension”). The Second Lease Extension provided for rent “payable in
monthly installments of $1,000.00 on or before the 18th day of each month * * * [p]rovided that
the $3,000.00 payable for February, March and April 2006 may be paid by June 30, 2006.”
Addressing the option for the additional five-year renewal, it provided: “In consideration of this
additional term option, Lessee has paid to Lessor the sum of $2,400.00, the receipt of which
Lessor acknowledges.” The disposition of the assets upon the lease’s termination was different
than what was stated in the transcribed settlement. The Second Lease Extension was signed by
all the parties, apparently without any further discussion of the differences between it and the
transcribed settlement.
{¶5} In 2010, Cedar Lane approached the Besancons concerning an algae research
project that Touchstone Research Laboratory, Ltd. (“Touchstone”) proposed to do on the
property. The Besancons agreed to allow the research, and Cedar Lane entered into a lease
agreement with Touchstone. Although there was no written agreement between Cedar Lane and
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the Besancons concerning this, Cedar Lane paid the Besancons $200 per month during this
project. Towards the end of the project, Touchstone issued Cedar Lane a check including $5,000
that the Besancons claim was intended for them.
{¶6} The Besancons filed the current action against Cedar Lane in 2014. The
Besancons sought (1) a declaration “that the [Besancons] have the sole and exclusive right to the
‘North Field’ under the original and subsequent lease extensions;” (2) a declaration “that the 3
year oral lease has expired and that [Cedar Lane] ha[s] no rights in the ‘North Field’ and
possession is returned to [the Besancons];” and (3) reformation of the Second Lease Extension
“to conform with the true understanding of the parties.” Cedar Lane filed counterclaims for (1)
intentional interference with a contractual relationship; (2) breach of contract; and (3) declaratory
judgment concerning the area covered by the lease and its exercise of its option to extend the
lease until 2021. Thereafter, the Besancons amended their complaint adding a claim for
conversion and also seeking punitive damages.
{¶7} The parties filed cross-motions for summary judgment. Finding “disputes of
material fact,” the trial court denied the motions for summary judgment. The matter proceeded
to a bench trial. Mr. Besancon, Mrs. Besancon, and Thomas Machamer, who is the president of
Cedar Lane, testified at the trial. The trial court “declare[d] [the Besancons] have the sole and
exclusive right to the ‘North Field’ under the original and subsequent lease extensions * * * [and
that] possession of the ‘North Field’ is returned to [the Besancons] as [Cedar Lane’s] oral lease
has expired.” The trial court reformed the Second Lease Extension concerning the consideration
for the option to extend the lease until 2021 and the disposition of assets upon termination of the
lease. The trial court further found that Cedar Lane had converted $5,000 belonging to the
Besancons, which Cedar Lane was ordered to pay with interest. On Cedar Lane’s counterclaims,
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the court found that the Besancons had not interfered with Cedar Lane’s contractual relationship
with Touchstone and that the Besancons had not breached the lease’s covenant of quiet
enjoyment. The court further found that Cedar Lane had not paid the full consideration to extend
the lease until 2021 and declared that the lease expired on January 31, 2016. Finally, the court
“declare[d] that Parcel B is included in the original and subsequent lease extensions, however,
Parcel B did not include the North Field * * *.” Upon Cedar Lane’s motion and the posting of a
bond, the trial court stayed its judgment pending this appeal.
{¶8} Cedar Lane has appealed, raising seven assignments of error. The Besancons
have cross-appealed, raising one assignment of error. For ease of discussion, we address some of
the assignments of error jointly.
II.
Cedar Lane’s Assignment of Error Number One
THE TRIAL COURT ERRED BY DENYING CEDAR LANE’S MOTION FOR
SUMMARY JUDGMENT AS TO THE AREA CONTAINED IN PARCEL B.
{¶9} In its first assignment of error, Cedar Lane contends that the trial court erred in
denying its motion for summary judgment. According to Cedar Lane, the trial court incorrectly
looked outside the four corners of the lease agreement to determine which land was encompassed
within the agreement.
{¶10} The original lease agreement provided that a legal description of the leased
premises was “attached hereto and incorporated herein as Exhibit A, with that portion of the
premises covered by the terms of this Lease described in the drawing attached hereto as Exhibit
B.” Exhibit A appears to be the legal description of the entire 102.25 acre farm owned by the
Besancons. Exhibit B is a drawing of four parcels labeled A, B, C, and D. The parties agree that
the parcels labeled “A” and “B” are the areas leased by Cedar Lane. The parties disagree,
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however, over which land is included in parcel B. This is because the letter “B” is written inside
a small rectangle that is centered within another larger rectangle.
{¶11} Upon review of the record, we conclude that this issue is moot. The Ohio
Supreme Court has held that “[a]ny error by a trial court in denying a motion for summary
judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the
motion demonstrates that there were genuine issues of material fact supporting a judgment in
favor of the party against whom the motion was made.” Continental Ins. Co. v. Whittington, 71
Ohio St. 3d 150 (1994), syllabus. At trial, Mr. Besancon testified that only the smaller rectangle
was included in parcel B, noting that he had continued farming and paying the taxes on a
significant part of the larger rectangle, which the parties referred to as North Field, through the
duration of the lease. He also noted that, when Cedar Lane wanted to use part of the North Field,
it negotiated with him to pay an additional monthly fee, which it would not have done if it was
already leasing that land. Upon review of the evidence, we conclude that the drawing attached to
the lease agreement is ambiguous and that the testimony at trial demonstrated that there was a
genuine issue of material fact over which land is included in parcel B. Accordingly, under
Whittington, any error with respect to the trial court’s summary judgment decision was rendered
moot by the subsequent trial. Cedar Lane’s first assignment of error is overruled.
Cedar Lane’s Assignment of Error Number Two
THE TRIAL COURT ERRED BY FINDING THAT THE BESANCONS HAVE
THE SOLE AND EXCLUSIVE RIGHT TO THE “NORTH FIELD” UNDER
THE ORIGINAL AND SUBSEQUENT LEASE EXTENSIONS, AND THAT
THE “NORTH FIELD” WAS NOT INCLUDED IN PARCEL B, AND THAT
POSSESSION OF THE “NORTH FIELD” BE RETURNED TO [THE]
BESANCONS.
{¶12} In its second assignment of error, Cedar Lane argues that the trial court’s decision
concerning Parcel B and the North Field was against the manifest weight of the evidence. It also
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argues that the trial court’s decision should be reversed because the court failed to adequately
describe the boundaries of the North Field and “the parties do not have a common understanding
of the term the ‘North Field.’”
{¶13} In determining whether a trial court’s ruling is against the manifest weight of the
evidence:
“‘The [reviewing] court * * * weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a new
trial ordered.’”
(Alterations sic.) Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20, quoting
Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist.2001).
{¶14} In its attempt to resolve the ambiguity over parcel B, the trial court looked to
other provisions within the lease itself. The lease stated that the initial rent would be “an amount
equal to the current real estate taxes paid by Lessor attributable to the buildings and real estate
that encompass the leased premises.” Mr. Besancon testified that Cedar Lane paid taxes on the
smaller rectangle that contained the letter B in it and that it paid the taxes for an area within the
larger rectangle that was directly south of the small rectangle. He also testified that he and his
wife had paid taxes on the North Field since “tax year [19]91, maybe [19]92” when they
purchased the property. Mrs. Besancon also testified that the Besancons paid the taxes on the
North Field. Mr. Machamer conceded that the Besancons paid taxes on the North Field “as of
1991, prior to that, [he was] not sure.” Mr. Machamer also testified that he attempted to put the
taxes for the North Field into Cedar Lane’s name in 2013 because he “was using the property” at
that time.
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{¶15} The trial court also heard other testimony regarding the use of the North Field.
Mr. Besancon testified that he used the area to grow crops for his cattle. He stated that the
Besancons had farmed it “[c]ontinuously” from 1986 to 2011. Mrs. Besancon testified that “[i]t
was always part of [their] farm * * * always hay or corn.” Regarding the Besancons’ farming of
North Field, Mr. Machamer testified that, although North Field is included in parcel B, he had
allowed the Besancons to farm it from 1986 to 2011 because he “had no use for it” at that time.
{¶16} Mr. Besancon testified that the use of the North Field changed in 2011 after Cedar
Lane approached him concerning Touchstone’s proposed algae research project. He testified
that he agreed to rent the North Field for three years at a rate of $200 per month. Although there
was no written agreement between the Besancons and Cedar Lane concerning this arrangement,
Mr. Besancon indicated there was an agreement because he “shook his hand.” On cross-
examination, Mr. Machamer confirmed that he agreed to pay $200 per month for the use of the
North Field, but stated this payment was a “[c]ourtesy” to keep the Besancons “off [his] back”
for the land that they would not be able to farm anymore.
{¶17} Given the evidence before it, we cannot say that the trial court clearly lost its way
in determining that the North Field was not included in parcel B or covered by the original lease.
See State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus (holding that the
“weight to be given the evidence and the credibility of the witnesses are primarily for the trier of
the facts.”).
{¶18} Regarding whether the trial court’s judgment adequately described the boundaries
of the North Field, a review of the transcript belies Cedar Lane’s argument. On direct
examination, Mr. Besancon indicated that the North Field was the area between the small box
with the B in it and the access road to the north. Similarly, Mr. Machamer testified that “[t]he
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[N]orth [F]ield would be between the access road and the B, the offices and stuff.” Because the
parties had a similar understanding about the parameters of the North Field, any error in the trial
court’s description of the area is harmless. See Civ.R. 61. Cedar Lane’s second assignment of
error is overruled.
Cedar Lane’s Assignment of Error Number Three
THE TRIAL COURT ERRED BY DENYING CEDAR LANE’S MOTION FOR
SUMMARY JUDGMENT AS [TO] THE REFORMATION OF THE SECOND
LEASE EXTENSION BASED ON MUTUAL MISTAKE.
Cedar Lane’s Assignment of Error Number Four
THE TRIAL COURT ERRED BY REFORMING THE SECOND LEASE
EXTENSION BASED ON MUTUAL MISTAKE BASED ON THE EVIDENCE
PRESENTED.
{¶19} Cedar Lane initially argues that the trial court incorrectly reformed the Second
Lease Extension based on mutual mistake because the Besancons did not plead mutual mistake
with particularity in their complaint, as required by Civil Rule 9(B). Cedar Lane, however, did
not raise this argument below. It, therefore, has forfeited all but plain error on appeal. See
Rising v. Litchfield Twp. Bd. of Trustees, 9th Dist. Medina No. 16CA0010-M, 2016-Ohio-6971,
¶ 16. The plain error doctrine is disfavored in civil appeals and is only applied in rare cases.
Goldfuss v. Davidson, 79 Ohio St. 3d 116 (1997), syllabus. Moreover, Cedar Lane has not
argued plain error on appeal. “This Court will not engage in an analysis of plain error if an
appellant fails to argue plain error on appeal.” K.L. v. D.M., 9th Dist. Medina No. 15CA0010-M,
2016-Ohio-338, ¶ 5.
{¶20} Cedar Lane next argues that the Besancons failed to establish that there was a
mutual mistake concerning the Second Lease Extension. This Court has held that “[r]eformation
based on mutual mistake is appropriate when the parties made the same mistake and understood
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the contract as the complaint alleges it should have been.” General Tire, Inc. v. Mehlfeldt, 118
Ohio App. 3d 109, 115 (9th Dist. 1997). “The party alleging mutual mistake has the burden of
proving its existence by clear and convincing evidence.” Id. This Court reviews “whether the
court applied the proper rule of proof and [whether] the evidence attains to that higher degree of
probative value to constitute clear and convincing proof.” Frate v. Rimenik, 115 Ohio St. 11, 18
(1926). Clear and convincing evidence is “that measure or degree of proof which is more than a
mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of
facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469 (1954), paragraph three of the syllabus.
{¶21} Upon review of the record, we conclude that the Besancons did not meet their
burden. The issue is whether the parties were mutually mistaken over whether the Second Lease
Extension properly integrated their previous oral agreement. According to the Besancons, the
Second Lease Extension does not reflect the parties’ oral agreement because it does not require
Cedar Lane to pay $3,000 in consideration for extending the lease beyond 2016 over and above
any monthly lease payments Cedar Lane was required to make. The Second Lease Agreement
clearly does not require Cedar Lane to make an additional $3,000 payment. According to Cedar
Lane, the party responsible for drafting the agreement, the reason the Second Lease Extension
does not require the additional payment is because it believed an additional payment was not part
of the parties’ oral agreement. Regardless of whether Cedar Lane was mistaken about the terms
of the parties’ oral agreement, it was not mistaken about the fact that the Second Lease Extension
does not require it to make an additional payment. The only parties that were mistaken over
whether the Second Lease Extension required an additional payment were the Besancons, who
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testified that they did not read the four-page document before signing it. The mistake over the
terms of the Second Lease Extension, therefore, was unilateral, not mutual.
{¶22} This Court has held that a contract can be reformed even if a mistake is not
mutual if “one party believes that a contract correctly integrates the agreement and the other
party is aware that it does not[.]” See Galehouse Constr. Co. v. Winkler, 128 Ohio App. 3d 300,
303 (9th Dist.1998). There is no evidence, however, that Cedar Lane was aware that the Second
Lease Extension did not correctly integrate the parties’ oral agreement. We, therefore, conclude
that the trial court erred when it reformed the Second Lease Extension under the doctrine of
mutual mistake. Cedar Lane’s third and fourth assignments of error are sustained.
Cedar Lane’s Assignment of Error Number Five
THE TRIAL COURT ERRED BY FINDING THAT CEDAR LANE DID NOT
PAY ALL SUMS REQUIRED TO BE PAID IN CONSIDERATION FOR THE
EXTENSION OF THE TERM OF THE LEASE THROUGH JANUARY 31,
2021.
{¶23} In its fifth assignment of error, Cedar Lane argues that the trial court erred when it
considered parol evidence in determining whether there was a mutual mistake. In light of our
disposition of its third and fourth assignments of error, we conclude that this assignment of error
is moot. We, therefore, decline to address it. See App.R. 12(A)(1)(c).
Cedar Lane’s Assignment of Error Number Six
THE TRIAL COURT ERRED BY FINDING THAT CEDAR LANE’S OPTION
TO EXTEND THE TERM OF THE LEASE THROUGH JANUARY 31, 2021
WAS NULL AND VOID.
{¶24} In its sixth assignment of error, Cedar Lane argues that, even if the trial court was
correct in finding that it was required to pay an additional $3,000 to extend the lease further, the
court imposed the wrong remedy. In light of our disposition of Cedar Lane’s third and fourth
assignments of error, this assignment of error is also moot and will not be addressed. Id.
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Cedar Lane’s Assignment of Error Number Seven
THE TRIAL COURT ERRED BY FINDING THAT CEDAR LANE
CONVERTED $5000.00.
{¶25} In its seventh assignment of error, Cedar Lane argues that the trial court erred in
finding that it had converted $5,000 because (1) Touchstone made the check payable to Cedar
Lane and (2) the Besancons failed to prove their right to the $5,000. “[C]onversion is the
wrongful exercise of dominion over property to the exclusion of the rights of the owner, or
withholding it from his possession under a claim inconsistent with his rights.” Joyce v. General
Motors Corp., 49 Ohio St. 3d 93, 96, citing Zacchini v. Scripps-Howard Broadcasting Co., 47
Ohio St. 2d 224, 226 (1976). To prevail on a claim for conversion, a plaintiff must prove: “‘(1)
plaintiff’s ownership or right to possession of the property at the time of the conversion; (2) the
defendant’s conversion by a wrongful act or disposition of plaintiff’s property rights; and (3)
damages.’” Kostyo v. Kaminski, 9th Dist. Lorain No. 12CA010266, 2013-Ohio-3188, ¶ 12,
quoting Scott Charles Laundromat v. Akron, 9th Dist. Summit No. 26125, 2012-Ohio-2886, ¶ 9,
quoting Keybank Natl. Assoc. v. Guarnieri & Secrest, P.L.L., 7th Dist. Columbiana No. 07CO46,
2008-Ohio-6362, ¶ 15. “‘It is not necessary that the property be wrongfully obtained.’” Kostyo
at ¶ 12, quoting McCartney v. Universal Elec. Power Corp., 9th Dist. Summit No. 21643, 2004-
Ohio-959, ¶ 14. “When property is otherwise lawfully held, ‘[a] demand and refusal * * * are
usually required to prove the conversion * * *.’” (Alterations sic.) Kostyo at ¶ 12, quoting
Ferreri v. Goodyear Local No. 2 United Rubber, Cork, Linoleum & Plastic Workers of Am.
Home Assn., 9th Dist. Summit No. 16311, 1994 WL 45740, *2 (Feb. 9, 1994), quoting Ohio Tel.
Equip. & Sales Inc. v. Hadler Realty Co., 24 Ohio App. 3d 91, 94 (10th Dist.1985).
{¶26} In the present action, Mr. Besancon testified that he had “[n]umerous” discussions
with Cedar Lane and Touchstone. He asserted that they agreed to a new one year lease extension
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for Cedar Lane’s use of part of the North Field and he “was going to get a $5,000.00 check from
Touchstone, through [Cedar Lane] for [his] help of disbursing saltwater and some other things
and the topsoil and other things that occurred.” He indicated that the $5,000 was a fair amount to
compensate him for his services. Mr. Besancon further testified that he asked Cedar Lane for the
$5,000 and “he stated, he’s not going to pay it to me[.]”
{¶27} The court was also presented documentary evidence regarding this $5,000
payment. In a text to Mr. Besancon, Mr. Machamer stated, “Touchstone will have your $5000.,
and [Cedar Lane] could do its $400 if we have a little more longevity.” In an email to a
Touchstone representative, Mr. Machamer wrote:
With the September invoice I have included two other invoices for discussion for
the lease extension.
The first is a monthly lease rate of $1850 and a “$5000 consideration for the lease
extension”. [Another Touchstone representative] and I worked out this deal with
the farmer [Mr. Besancon] to compensate him for things he thinks he was shorted
during construction and pumping out the ponds last winter.
Finally, there was a check from Touchstone to Cedar Lane totaling $7,801.86, for invoices in the
amounts of $5,000.00, $1,850.00, and $951.86.
{¶28} Mr. Machamer testified that “we thought we had a deal.” He confirmed that
Touchstone sent him $5,000 that “was intended to go [to Mr. Besancon].” But, he asserted that
was “if we worked out a deal” and “without longevity” there was “[n]o deal.”
{¶29} While Cedar Lane argues that the check was made payable to it, property need not
be wrongfully obtained to be subject to conversion. See Kostyo at ¶ 12. The Besancons
demonstrated their right to the $5,000 for services rendered and Cedar Lane’s wrongful retention
of it after they demanded it. Cedar Lane’s seventh assignment of error is overruled.
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The Besancons’ Cross-Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT AWARDING
PUNITIVE DAMAGES ON COUNT V OF PLAINTIFFS’ AMENDED
COMPLAINT.
{¶30} In their cross-assignment of error, the Besancons argue that they were entitled to
punitive damages because Cedar Lane acted with actual malice in retaining the $5,000. We
review a trial court’s decision regarding punitive damages for an abuse of discretion. InfoCision
Mgt. Corp. v. Donor Care Ctr., Inc., 9th Dist. Summit No. 27034, 2016-Ohio-789, ¶ 40. An
abuse of discretion indicates that the trial court acted unreasonably, arbitrarily, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). “Actual malice” for
purposes of punitive damages is “‘(1) that state of mind under which a person’s conduct is
characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights
and safety of other persons that has a great probability of causing substantial harm.’” Calmes v.
Goodyear Tire & Rubber Co., 61 Ohio St. 3d 470, 473 (1991), quoting Preston v. Murty, 32 Ohio
St.3d 334 (1987), syllabus.
{¶31} Although the Besancons presented testimony and evidence of their right to the
$5,000, there was also evidence of Cedar Lane’s belief that the payment was contingent upon a
longer lease extension. The text message to Mr. Besancon requests “a little more longevity” and
the email to the Touchstone representative refers to “$5000 consideration for the lease
extension[.]” Mr. Machamer testified to his belief that “without longevity” there was “[n]o
deal.” Finally, Mr. Besancon conceded that, while the $5,000 was for work he performed, a
“portion” of it was for the lease extension.
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{¶32} Under these facts, we cannot say the trial court abused its discretion in declining
to award punitive damages to the Besancons. The Besancons’ cross-assignment of error is
overruled.
III.
{¶33} Cedar Lane’s first, second, and seventh assignments of error are overruled. Cedar
Lane’s third and fourth assignments of error are sustained. Cedar Lane’s fifth and sixth
assignments of error are moot. The Besancons’ cross-assignment of error is overruled. The
judgment of the Wayne County Court of Common Pleas is affirmed in part, reversed in part, and
this matter is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
J. DOUGLAS DRUSHAL and DANIEL P. CALVIN, Attorneys at Law, for Appellants/Cross-
Appellees.
BRYAN K. BARNARD, Attorney at Law, for Appellees/Cross-Appellants.