Nihiser v. Hocking Cty. Bd. of Commrs. , 2013 Ohio 3849 ( 2013 )


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  • [Cite as Nihiser v. Hocking Cty. Bd. of Commrs., 
    2013-Ohio-3849
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    HOCKING COUNTY
    MICHAEL D. NIHISER, et al.,       :
    :
    Plaintiffs-Appellants,       : Case No. 12CA18
    :
    vs.                          :
    :
    HOCKING COUNTY BOARD OF : DECISION AND JUDGMENT
    COMMISSIONERS, et al.             : ENTRY
    :
    Defendants-Appellees.        : Released: 08/30/13
    _____________________________________________________________
    APPEARANCES:
    L. Jackson Henniger, Logan, Ohio, for Appellants.
    Randall L. Lambert, Ironton, Ohio, for Appellees.
    _____________________________________________________________
    McFarland, P.J.
    {¶1} Michael Nihiser and Vicki Devol appeal the trial court’s
    summary judgment decision determining the Hocking County Board of
    Commissioners and William Shaw, County Engineer, are entitled to
    sovereign immunity under R.C. Chapter 2744 with regard to the function of
    designating street numbers pursuant to R.C. 303.021. On appeal, Appellants
    contend that 1) the trial court erred as a matter of law when it granted
    Appellees’ motion for summary judgment because a genuine issue of
    material fact existed; 2) the trial court erred as a matter of law when it
    Hocking App. No. 12CA18                                                          2
    granted Appellees’ motion for summary judgment because a genuine issue
    of material fact existed as to whether the delegation of the authority was
    proper; 3) the trial court erred as a matter of law when it granted Appellees’
    motion for summary judgment by holding that the Appellees were covered
    by governmental immunity; and 4) the trial court erred as a matter of law
    when it granted Appellees’ motion for summary judgment because the
    Appellees are not entitled to judgment as a matter of law.
    {¶2} In light of our determination that the function of designating
    street numbers is a governmental function for which immunity is granted,
    that the function was properly delegated to Shaw, that no genuine issues of
    material fact exist, and that Appellees were entitled to judgment as a matter
    of law, we overrule Appellants’ assignments of error. Accordingly, we
    affirm the decision of the trial court granting summary judgment in favor of
    Appellees.
    FACTS
    {¶3} Appellants, Michael Nihiser and Vicki Devol, are property
    owners in Hocking County. On December 30, 2010, Appellants filed a
    complaint naming Appellees Hocking County Board of Commissioners
    (hereinafter “Board”) and William Shaw (hereinafter “Shaw”), Hocking
    County Engineer, as defendants. The complaint alleged that Board, which
    Hocking App. No. 12CA18                                                         3
    possessed authority to designate street names and building numbers pursuant
    to R.C. 303.021, had improperly delegated the authority to perform that
    function to Shaw, as County Engineer. Appellant claimed that Shaw and the
    engineer’s office, in turn, wrongfully failed to number or timely number
    certain lots owned by Appellants and also wrongfully withheld numbers
    based upon an additional requirement that a driveway be located upon the
    property first, a requirement which is not contained in R.C. 303.021.
    Appellants also alleged that Shaw bore a personal animus toward them as a
    result of Appellants’ opposition to a licensing tax proposed by Shaw. None
    of the county commissioners or Shaw were named as defendants in their
    individual capacities.
    {¶4} Appellants’ complaint alleged damages in the amount of
    $250,000.00. A review of the record indicates Appellants believed that the
    value of their property was decreased as a result of having to cut trees down
    in order to place the driveway in a location that would be approved by Shaw.
    Appellants explained that they were selling log cabin lots where trees were
    valuable.
    {¶5} Appellees filed an answer to the complaint on January 31, 2011,
    and subsequently filed a motion for summary judgment, on June 20, 2012.
    Appellants filed a memorandum contra on July 11, 2012. In a decision dated
    Hocking App. No. 12CA18                                                          4
    July 27, 2012, the trial court granted Appellees’ motion for summary
    judgment. In reaching its decision, the trial court found that the designation
    of street numbers was a governmental function for which Appellees were
    immune from liability under R.C. Chapter 2744, and that none of the
    exceptions to immunity contained in the statute were applicable. The trial
    court also found that Board had authority to delegate the performance of this
    function to Shaw and that the policy of requiring a driveway was a valid
    exercise of the engineer’s statutory and delegated duty.
    {¶6} It is from this decision that Appellants now bring their timely
    appeal, assigning the following errors for our review.
    ASSIGNMENTS OF ERROR
    “I.    THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
    GRANTED PLAINTIFF’S [SIC] MOTION FOR SUMMARY
    JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL
    FACT EXISTED.
    II.    THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
    GRANTED PLAINTIFF’S [SIC] MOTION FOR SUMMARY
    JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL
    FACT EXISTED AS TO WHETHER THE DELEGATION OF THE
    AUTHORITY WAS PROPER.
    III.   THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
    GRANTED PLAINTIFF’S [SIC] MOTION FOR SUMMARY
    JUDGMENT BY HOLDING THAT THE DEFENDANTS WERE
    COVERED BY GOVERNMENTAL IMMUNITY.
    IV.    THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
    GRANTED PLAINTIFF’S [SIC] MOTION FOR SUMMARY
    Hocking App. No. 12CA18                                                   5
    JUDGMENT BECAUSE THE DEFENDANTS ARE NOT
    ENTITLED TO JUDGMENT AS A MATTER OF LAW.”
    LEGAL ANALYSIS
    {¶7} Although Appellants raise four separate assignments of error,
    their brief contains only one legal argument. App.R. 12(A)(2) authorizes us
    to disregard any assignment of error that a party fails to argue separately.
    However, in the interests of justice, and because each assignment of error
    ultimately challenges the trial court’s grant of summary judgment, we will
    address the arguments raised.
    SUMMARY JUDGMENT STANDARD
    {¶8} Appellate courts review trial court summary judgment decisions
    de novo. Grafton v. Ohio Edison Co., 
    77 Ohio St.3d 102
    , 105, 
    671 N.E.2d 241
     (1996). Accordingly, appellate courts must independently review the
    record to determine if summary judgment is appropriate. In other words,
    appellate courts need not defer to trial court summary judgment decisions.
    See Brown v. Scioto Cty. Bd. of Commrs., 
    87 Ohio App.3d 704
    , 711, 
    622 N.E.2d 1153
     (1993); Morehead v. Conley, 
    75 Ohio App.3d 409
    , 411-412,
    
    599 N.E.2d 786
     (1991). Thus, to determine whether a trial court properly
    awarded summary judgment, an appellate court must review the Civ.R. 56
    summary judgment standard as well as the applicable law. Civ.R. 56(C)
    provides: “Summary judgment shall be rendered forthwith if the pleadings,
    Hocking App. No. 12CA18                                                        6
    depositions, answers to interrogatories, written admissions, affidavits,
    transcripts of evidence in the pending case, and written stipulations of fact, if
    any, timely filed in the action, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment as a matter of
    law. No evidence or stipulation may be considered except as stated in this
    rule. A summary judgment shall not be rendered unless it appears from the
    evidence or stipulation, and only from the evidence or stipulation, that
    reasonable minds can come to but one conclusion and that conclusion is
    adverse to the party against whom the motion for summary judgment is
    made, that party being entitled to have the evidence or stipulation construed
    most strongly in the party's favor.”
    {¶9} Accordingly, trial courts may not grant summary judgment
    unless the evidence demonstrates that (1) no genuine issue as to any material
    fact remains to be litigated, (2) the moving party is entitled to judgment as a
    matter of law, and (3) it appears from the evidence that reasonable minds
    can come to but one conclusion, and after viewing the evidence most
    strongly in favor of the nonmoving party, that conclusion is adverse to the
    party against whom the motion for summary judgment is made. See, e.g.,
    Vahila v. Hall, 
    77 Ohio St.3d 421
    , 429-430, 
    674 N.E.2d 1164
     (1997).
    Hocking App. No. 12CA18                                                          7
    {¶10} Appellants contend that the trial court erred in granting
    summary judgment to Appellees based upon the doctrine of sovereign
    immunity. Appellants argue that Board improperly delegated the authority
    to designate street numbers to Shaw, the County Engineer, and that Shaw
    impermissibly required a driveway be established prior to the issuance of a
    street number. Appellants further claim that genuine issues of material fact
    exist which should have precluded summary judgment.
    R.C. 2744.02
    {¶11} “The Political Subdivision Tort Liability Act, as codified in
    R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether
    a political subdivision is immune from liability.” Cater v. Cleveland, 
    83 Ohio St.3d 24
    , 28, 
    697 N.E.2d 610
     (1998); see also Elston v. Howland Local
    Schools, 
    113 Ohio St.3d 314
    , 
    2007-Ohio-2070
    , 
    865 N.E.2d 845
    , ¶ 10. The
    first tier involves determining whether the political subdivision is generally
    immune from liability under R.C. 2744.02(A)(1). Elston at ¶ 10; see also
    Hortman v. Miamisburg, 
    110 Ohio St.3d 194
    , 
    2006-Ohio-4251
    , 
    852 N.E.2d 716
    , ¶ 12.
    {¶12} Once immunity is generally established, “the second tier of
    analysis is whether any of the five exceptions to immunity in subsection (B)
    apply.” Id. at ¶ 12. Only when one of the exceptions listed in R.C.
    Hocking App. No. 12CA18                                                          8
    2744.02(B) applies do courts move to the third tier. Terry v. Ottawa Cty. Bd.
    of Mental Retardation & Dev. Disabilities, 
    151 Ohio App.3d 234
    , 2002-
    Ohio-7299, 
    783 N.E.2d 959
    , ¶ 13; Dolan v. Glouster, 
    173 Ohio App.3d 617
    ,
    
    2007-Ohio-6275
    , 
    879 N.E.2d 838
    , ¶ 17. See also Gotherman & Babbit, Ohio
    Municipal Law (2d Ed.1992), Section 32.4 (“The defenses and immunities
    provided to a political subdivision by R.C. 2744.03(A) only become relevant
    if one of the five exceptions to immunity in R.C. 2744.02(B) applies to
    render the subdivision vulnerable to liability”). If an exception to the general
    immunity provision does apply, “under the third tier of analysis, immunity
    can be reinstated if the political subdivision can successfully argue that any
    of the defenses contained in R.C. 2744.03 applies.” Hortman at ¶ 12.
    {¶13} Here, the general grant of immunity under R.C. 2744.02(A)(1)
    applies to the Board, as the county is a political subdivision. See R.C.
    2744.01(F). Additionally, Shaw, the Hocking County Engineer, is an
    employee of Board pursuant to R.C. 2744.01(B), which provides that the
    definition of employee includes any elected or appointed official of a
    political subdivision. Under R.C. 2744.02(A)(1), the general rule is as
    follows:
    “[A] political subdivision is not liable in damages in a civil
    action for injury, death, or loss to person or property allegedly
    Hocking App. No. 12CA18                                                      9
    caused by any act or omission of the political subdivision or an
    employee of the political subdivision in connection with a
    governmental or proprietary function.”
    {¶14} In this case, the parties disagree over whether designating street
    numbers is a governmental or a proprietary function. R.C. 303.021 governs
    the designation of street names and assignment of numbers to buildings, and
    provides as follows:
    “The board of county commissioners may designate street
    names and assign numbers to buildings along the streets in
    unincorporated areas. The owners of such buildings shall
    number or renumber such buildings in accordance with the
    numbers assigned by the county commissioners.”
    Clearly, boards of county commissioners are given the authority to perform
    this function. We must determine, however, whether the function is
    governmental or proprietary.
    {¶15} R.C. 2744.01(G) defines proprietary functions and provides as
    follows in section (1)(a)-(b):
    “(G)(1) ‘Proprietary function’ means a function of a political
    subdivision that is specified in division (G)(2) of this section or
    that satisfies both of the following:
    Hocking App. No. 12CA18                                                       10
    (a) The function is not one described in division (C)(1)(a) or (b)
    of this section and is not one specified in division (C)(2) of this
    section;
    (b) The function is one that promotes or preserves the public
    peace, health, safety, or welfare and that involves activities that
    are customarily engaged in by nongovernmental persons.”
    (Emphasis added).
    Designating street numbers is not one of the functions listed in R.C.
    2744.01(G)(2)(a)-(e) and thus, is not expressly defined as a proprietary
    function. Further, we conclude designating street numbers does not meet the
    definition of proprietary function under R.C. 2744.01(G)(1)(a)-(b), which in
    addition to requiring that the function promote or preserve public peace,
    health, safety or welfare, also requires that the activities be customarily
    engaged in by nongovernmental persons. It cannot be said that designating
    street numbers is customarily engaged in by nongovernmental persons.
    Thus, by process of elimination, we conclude that the function of
    designating street numbers is not proprietary in nature.
    {¶16} R.C. 2744.01(C) defines governmental functions and provides
    as follows in section (C)(1)(a)-(b):
    Hocking App. No. 12CA18                                                                                     11
    “(C)(1) ‘Governmental function’ means a function of a political
    subdivision that is specified in division (C)(2) of this section or
    that satisfies any of the following:
    (a) A function that is imposed upon the state as an obligation of
    sovereignty and that is performed by a political subdivision
    voluntarily or pursuant to legislative requirement;
    (b) A function that is for the common good of all citizens of the
    state;
    (c) A function that promotes or preserves the public peace,
    health, safety, or welfare; that involves activities that are not
    engaged in or not customarily engaged in by nongovernmental
    persons; and that is not specified in division (G)(2) of this
    section as a proprietary function.”
    As already discussed, designating street numbers is not specified in R.C.
    2744.01(G)(2) as a proprietary function. Further, although both Appellees
    and the trial court suggest that the function is governmental pursuant to R.C.
    2744.01(C)(2)(e)1 and (i)2, we are not persuaded. In fact, the designation of
    street addresses is not explicitly defined as either a proprietary or
    1
    R.C. 2744.01(C)(2)(e) defines as governmental “[t]he regulation of the use of, and the maintenance and
    repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public
    grounds[.]”
    2
    R.C. 2744.01(C)(2)(i) defines as governmental “[t]he enforcement or nonperformance of any law[.]”
    Hocking App. No. 12CA18                                                       12
    governmental function. Further, this Court has been unable to locate any
    guidance whatsoever, related to the issue of whether the function of
    designating street numbers is governmental or proprietary in nature.
    Nonetheless, we conclude that the function can be classified as
    governmental under R.C. 2744.01(C)(1)(a)-(b).
    {¶17} First, we find the function of designating street numbers and the
    development of an orderly system and process to do so serves the common
    good of all citizens of the state in accordance with R.C. 2744.01(C)(1)(b).
    Second, not only does the performance of this function promote the public
    safety and welfare, the activities related to this function are not customarily
    engaged in by nongovernmental persons in accordance with R.C.
    2744.01(C)(1)(c) For instance, in Lyons v. Teamhealth Midwest Cleveland,
    et al., 8th Dist. No. 96336, 
    2011-Ohio-5501
    , confusion over the location of a
    residential address on the part of the dispatch service, as well as an incorrect
    map prepared by the county engineer’s office, resulted in a delay in the
    arrival of an ambulance, which contributed to the death of a minor in need of
    medical attention. Thus, that case highlights the importance of the function
    of designating street numbers in relation to the health, safety and welfare of
    the public. As such, we conclude that the function of designating street
    numbers is governmental in nature.
    Hocking App. No. 12CA18                                                   13
    {¶18} Next, we must determine whether any of the exceptions to
    immunity apply. The exceptions to immunity are set forth in R.C.
    2744.02(B)(1)-(5), which provides as follows:
    “(B) Subject to sections 2744.03 and 2744.05 of the Revised
    Code, a political subdivision is liable in damages in a civil
    action for injury, death, or loss to person or property allegedly
    caused by an act or omission of the political subdivision or of
    any of its employees in connection with a governmental or
    proprietary function, as follows:
    (1) Except as otherwise provided in this division, political
    subdivisions are liable for injury, death, or loss to person or
    property caused by the negligent operation of any motor vehicle
    by their employees when the employees are engaged within the
    scope of their employment and authority. The following are full
    defenses to that liability:
    (a) A member of a municipal corporation police department or
    any other police agency was operating a motor vehicle while
    responding to an emergency call and the operation of the
    vehicle did not constitute willful or wanton misconduct;
    Hocking App. No. 12CA18                                                    14
    (b) A member of a municipal corporation fire department or any
    other firefighting agency was operating a motor vehicle while
    engaged in duty at a fire, proceeding toward a place where a
    fire is in progress or is believed to be in progress, or answering
    any other emergency alarm and the operation of the vehicle did
    not constitute willful or wanton misconduct;
    (c) A member of an emergency medical service owned or
    operated by a political subdivision was operating a motor
    vehicle while responding to or completing a call for emergency
    medical care or treatment, the member was holding a valid
    commercial driver's license issued pursuant to Chapter 4506. or
    a driver's license issued pursuant to Chapter 4507. of the
    Revised Code, the operation of the vehicle did not constitute
    willful or wanton misconduct, and the operation complies with
    the precautions of section 4511.03 of the Revised Code.
    (2) Except as otherwise provided in sections 3314.07 and
    3746.24 of the Revised Code, political subdivisions are liable
    for injury, death, or loss to person or property caused by the
    negligent performance of acts by their employees with respect
    to proprietary functions of the political subdivisions.
    Hocking App. No. 12CA18                                                      15
    (3) Except as otherwise provided in section 3746.24 of the
    Revised Code, political subdivisions are liable for injury, death,
    or loss to person or property caused by their negligent failure to
    keep public roads in repair and other negligent failure to
    remove obstructions from public roads, except that it is a full
    defense to that liability, when a bridge within a municipal
    corporation is involved, that the municipal corporation does not
    have the responsibility for maintaining or inspecting the bridge.
    (4) Except as otherwise provided in section 3746.24 of the
    Revised Code, political subdivisions are liable for injury, death,
    or loss to person or property that is caused by the negligence of
    their employees and that occurs within or on the grounds of,
    and is due to physical defects within or on the grounds of,
    buildings that are used in connection with the performance of a
    governmental function, including, but not limited to, office
    buildings and courthouses, but not including jails, places of
    juvenile detention, workhouses, or any other detention facility,
    as defined in section 2921.01 of the Revised Code.
    (5) In addition to the circumstances described in divisions
    (B)(1) to (4) of this section, a political subdivision is liable for
    Hocking App. No. 12CA18                                                      16
    injury, death, or loss to person or property when civil liability is
    expressly imposed upon the political subdivision by a section of
    the Revised Code, including, but not limited to, sections
    2743.02 and 5591.37 of the Revised Code. Civil liability shall
    not be construed to exist under another section of the Revised
    Code merely because that section imposes a responsibility or
    mandatory duty upon a political subdivision, because that
    section provides for a criminal penalty, because of a general
    authorization in that section that a political subdivision may sue
    and be sued, or because that section uses the term “shall” in a
    provision pertaining to a political subdivision.”
    Here, the exception contained in R.C. 2744.02(B)(2) does not apply as we
    have already determined the function at issue is governmental rather than
    proprietary. Further, we find none of the remaining exceptions are
    applicable. Having determined none of the exceptions under R.C.
    2744.02(B) are applicable, we need not perform an analysis of the defenses
    and immunities provided to a political subdivision by R.C. 2744.03(A).
    Accordingly, we affirm the trial court’s decision to the extent that it
    determined Appellees were entitled to immunity pursuant to R.C. 2744.02
    with respect to carrying out the function of designating street numbers.
    Hocking App. No. 12CA18                                                        17
    {¶19} We next consider whether Board’s delegation of authority to
    Shaw to designate street numbers was a proper delegation of authority. As
    set forth above, Board was vested with the authority to designate street
    numbers pursuant to R.C. 303.021. Appellants contend that Board, and only
    Board, had the authority to perform this function and that the delegation of
    this function to Shaw was improper. Based upon the following, we reject
    Appellants’ argument.
    {¶20} As set forth above, Lyons v. Teamhealth Midwest Cleveland, et
    al., 
    supra,
     involved the question of whether the county’s provision of
    emergency dispatch services was a governmental or a proprietary function,
    and whether the county had sovereign immunity related to the performance
    of that function. Also addressed as part of the analysis was the fact that the
    county did not have an ambulance service and thus contracted with private
    companies to respond to emergency calls. Id. at ¶ 5. Thus, the court was
    faced with the question of “whether the County can maintain their statutory
    immunity for retaining limited involvement in communicating calls for
    emergency help to the private entity through the provision of dispatch
    services.” Id. at ¶ 45.
    {¶21} In response to the issue raised, the Teamhealth court reasoned
    as follows:
    Hocking App. No. 12CA18                                                      18
    “This court has previously held that ‘R.C. 2744.01(C) does not
    exclude from the definition of governmental functions those
    functions sometimes performed by private entities for political
    subdivisions. In fact, many of the specifically enumerated
    governmental functions set forth in R.C. 2744.01(C)(1) are
    commonly performed by private entities for political
    subdivisions, including, but not limited to, ambulance services,
    * * *. Where a service is specifically defined as a governmental
    function, what entity actually performs them or a part of them
    on behalf of a political subdivision has no bearing on their
    status as governmental pursuant to R.C. 2744.01(C)(1).’
    McCloud v. Nimmer (1991), 
    72 Ohio App.3d 533
    , 
    595 N.E.2d 492
    , emphasis added.” Id. at ¶ 46.
    Thus, in Teamhealth, the performance of a governmental function on behalf
    of the county by a private entity for profit was at issue and it was determined
    that such a structure did not alter the classification of the function as
    governmental, nor did it destroy the political subdivision’s immunity from
    liability in relation thereto. Id.
    {¶22} Here, the governmental function of designating street numbers
    was delegated to Shaw, as county engineer, an actual employee of the
    Hocking App. No. 12CA18                                                       19
    political subdivision, not a private entity. It appears from the record that the
    County initiated the development of a countywide rural numbering system
    on February 20, 1975, via a “Proposal/Agreement/Resolution Assigning
    House # To County Engineer,” whereby Board entered into an agreement
    with a private engineering consulting firm. At some point thereafter, the
    function of designating street numbers was delegated to the Hocking County
    Engineer’s Office. We find nothing improper with respect to this delegation
    of authority and have located no prohibition against this practice.
    {¶23} Further, and much like the trial court, we find nothing improper
    with respect to the County Engineer’s system of designating street numbers
    only after driveways have been established. R.C. 303.021 provides no
    specific guidance as to how Board should perform the function of
    designating street numbers. The record reflects that Shaw’s office has a
    formal written policy which covers “Driveway Permitting and Addressing
    On County And Township Roads In Hocking County.” Additionally, there
    is no evidence in the record which suggests that this policy was not
    uniformly applied to any and all persons requesting the designation of a
    street number.
    {¶24} In summary, we have determined that the Hocking County
    Board of Commissioners is a political subdivision entitled to immunity
    Hocking App. No. 12CA18                                                       20
    pursuant to R.C. 2744.01, which immunity extends to William Shaw, the
    elected County Engineer, an employee of the political subdivision.
    Additionally, we have determined that there was nothing improper with
    respect to Board’s decision to delegate their authority to perform this
    function to Shaw, as County Engineer. Likewise, we have determined that
    Shaw’s policy of requiring a driveway to be in place prior to designating a
    street number was a reasonable policy implemented in connection with
    carrying out the function of designating street numbers. Further, as we have
    determined that the function at issue is a governmental function for which
    immunity attaches, that Board’s delegation of the performance of this
    function to Shaw did not destroy the governmental nature of the function or
    the grant of immunity, and that none of the exceptions to immunity applies,
    we affirm the trial court’s grant of summary judgment in favor of Appellees
    on the basis of the doctrine of sovereign immunity. Finally, although
    Appellants contend an issue exists related to alleged animosity between Mr.
    Nihiser and William Shaw, we find even if such an issue remains, it is not a
    genuine issue of material fact which would preclude summary judgment.
    {¶25} Thus, we conclude that the trial court properly granted
    Appellees’ motion for summary judgment. Accordingly, the assignments of
    Hocking App. No. 12CA18                                                       21
    error raised by Appellants are overruled and the decision of the trial court is
    affirmed.
    JUDGMENT AFFIRMED.
    Hocking App. No. 12CA18                                                        22
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED and that the
    Appellees recover of Appellants costs herein taxed.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing
    the Hocking County Common Pleas Court to carry this judgment into
    execution.
    Any stay previously granted by this Court is hereby terminated as of
    the date of this entry.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    Exceptions.
    Harsha, J. & Hoover, J.: Concur in Judgment Only.
    For the Court,
    BY: _________________________
    Matthew W. McFarland
    Presiding Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final
    judgment entry and the time period for further appeal commences from
    the date of filing with the clerk.