Dintino v. Hanger Prosthetics & Orthotics E., Inc. , 2023 Ohio 797 ( 2023 )

[Cite as Dintino v. Hanger Prosthetics & Orthotics E., Inc., 2023-Ohio-797.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
ANITA M. DINTINO,
Plaintiff-Appellant,
v.
HANGER PROSTHETICS AND
ORTHOTICS EAST, INC. et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0079
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CV 01564
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Judges and Mike Powell, Judge of the
Twelfth District Court of Appeals, Sitting by Assignment.
JUDGMENT:
Affirmed.
Anita M. Dintino, pro se, 5109 Fifth Avenue, Youngstown, Ohio 44505 and
–2–
Atty. Warren T. McClurg, Atty. Eric Larson Zalud, Benesch, Friedlander, Coplan & Aronoff
LLP, 200 Public Square, Suite 2300, Cleveland, Ohio 44114 for Defendant-Appellee
Hanger Prosthetics and Orthotics East, Inc. and
Atty. Peter C. Munger, Munger Company LPA, 626 Madison Avenue, Suite 400, Toledo,
Ohio 43604 for Defendants-Appellees R & D Properties, William W. Detoro and Richard
A. Riffle.
Dated: March 10, 2023
Robb, J.
{¶1} Appellant, Anita M. Dintino, appeals the June 28, 2022 judgment granting
Appellees, Hanger Prosthetics and Orthotics East, Inc. (“Hanger”), R & D Properties,
William W. Detoro, and Richard A. Riffle, summary judgment. Appellant argues the trial
court erred by applying the open and obvious doctrine because the threshold on which
she tripped was in violation of an applicable building code, and thus, Appellees’ conduct
was negligent per se. She also contends genuine issues of material fact exist that
preclude summary judgment. For the following reasons, we affirm.
Statement of the Case
{¶2} Appellant filed her complaint on September 1, 2021. In September of 2019,
Appellant was the business invitee of Hanger at its orthotic and prosthetic care clinic
located on Trailwood Drive in Boardman Township. Hanger was the tenant or lessee of
the premises, which was owned by R & D Properties, Detoro, and Riffle. On the day
Appellant fell, she had an appointment to obtain an adjustment of her orthotic.
{¶3} Appellant’s complaint alleges “as she was walking through the automatic
doors, she struck her toe on a raised threshold” which caused her to fall. (Sept. 1, 2021
Complaint.) She claimed she fell as a result of Appellees’ negligence and suffered injuries
as a result. She asserted Appellees “knew or should have known that the condition of
the premises [was] defective or hazardous, and/or a nuisance” where she fell. Her
complaint does not allege the automatic door closed too quickly contributing or causing
her to fall.
{¶4} Approximately one month into the litigation, Appellant’s attorneys withdrew,
and thereafter, she was pro se.
Case No. 22 MA 0079
–3–
{¶5} Hanger admitted in its answer that it leased the building at that location for
the operation of a Hanger Clinic. (October 6, 2021 Answer.) R & D, Detoro, and Riffle
filed their separate answer and admitted they were the former owners of the building, who
leased it to Hanger. They denied the remainder of the allegations. (October 5, 2021
Answer.)
{¶6} In May of 2022, Appellant filed a motion to suppress, contending Appellees
had spoliated evidence. This “motion to suppress” sought an order allowing Appellant to
add an additional claim against Appellees for spoliation. It also alleged Appellees
destroyed certain evidence which supported her cause of action.
{¶7} On that same date, Appellant filed a motion for summary judgment seeking
summary judgment on her spoliation claim. She did not attach, reference, or quote any
Civ.R. 56 compliant evidence in this summary judgment motion. (May 2, 2022 Motion for
Summary Judgment.)
{¶8} On May 10, 2022, Appellees moved to strike the allegedly improperly filed
summary judgment and suppression motions.
{¶9} Appellees filed a joint motion for summary judgment and urged the court to
find they owed no duty to Appellant since the condition on which she tripped was open
and obvious. Thus, Appellees claimed they owed no duty or obligation with regard to the
condition. In support, they relied on the separately filed deposition testimony of Lisa Alexi,
Hanger’s employee. (May 12, 2022 Joint Motion for Summary Judgment.)
{¶10} On May 16, 2022, Appellant filed a document titled in part, “Answer to Court,
Statement of the Facts, Motion to Strike Open and Obvious Doctrine.” In the body of this
filing, Appellant averred that on the date of her accident, the entryway door was closed,
so “there was no open and obvious.” She also asserted “Auto Door opened & closed. It
snapped close quickly making it difficult to get through safely.” And in an apparent
response to the defense witnesses’ deposition testimony, Appellant asserted she was
“only carrying a cup of coffee into my appointment that day, my shoes [were] on my feet.”
(May 16, 2022 Answer to Court.) However, none of these factual assertions were
contained in an affidavit or Civ.R. 56 compliant evidence.
{¶11} In this filing, Appellant also claimed the threshold and floor elevations were
in violation of commercial building codes, and thus, Appellees were negligent per se. She
also listed the name and address of her expert witness and attached a copy of his
Case No. 22 MA 0079
–4–
curriculum vitae and portions of the 2005 Ohio Building Code. (May 16, 2022 Answer to
Court.)
{¶12} The trial court issued a judgment on May 19, 2022 and denied Appellant’s
motion for summary judgment on spoliation. It found Appellant’s complaint did not include
a spoliation claim. However, the court granted her leave to file an amended motion with
supporting evidence as to why certain evidence should be excluded based on alleged
spoliation. (May 19, 2022 Judgment.)
{¶13} Thereafter, Appellant filed an amended complaint on May 23, 2022 and filed
her motion for leave to file her amended complaint two days later on May 25, 2022. Her
motion to amend seeks to add an additional party defendant, Long Cove Holdings 6 LLC
and “to support case and to add expert witness * * *.” (May 25, 2022 Motion to Amend
Complaint.)
{¶14} Appellees moved the court to dismiss or strike her amended complaint as
untimely and filed without leave of court. The court denied Appellant’s motion to amend
her complaint to add a new party defendant and spoliation claim. It ordered her amended
complaint stricken from the record. However, the court indicated it would address her
motion to exclude certain evidence. (June 9, 2022 Judgment.)
{¶15} On June 13, 2022, Appellees filed a motion to exclude evidence, specifically
Appellant’s “alleged expert testimony”; uncertified photocopies of an expert’s report; the
expert’s supporting documents and drawings; and copies of the Ohio Building Code
regulations. Appellees asserted this evidence was not Civ.R. 56 compliant. Appellees
also filed a joint reply in support of summary judgment on June 16, 2022.
{¶16} Appellant responded in her June 24, 2022 “Answer to the Court” and
explained she had provided the building codes during discovery and advised Appellees
about her expert during discovery. She also provided her expert’s notarized report as an
attachment, and among other things, attached a copy of the 2017 building code
regulations as exhibits.
{¶17} The trial court responded to the foregoing cross-motions via its June 28,
2022 decision. It overruled Appellant’s motions to suppress and exclude evidence. The
court also denied Appellant’s summary judgment motion.
{¶18} This June 28, 2022 decision also granted Appellees’ summary judgment. It
found “the condition of the entrance was open and obvious,” and thus, Appellees owed
Case No. 22 MA 0079
–5–
no duty toward Appellant. The trial court explained it did not address Appellant’s factual
contention that the property was “made more dangerous by doors that quickly snapped
closed” because “this assertion was not contained in her complaint or presented * * * in
any form [of evidence] that could be considered for purposes of a motion for summary
judgment.” Last, the court noted any pending or motions not expressly addressed by this
judgment were overruled. (June 28, 2022 Judgment.)
{¶19} Appellant appealed.
Assignments of Error
{¶20} Appellant does not identify succinct assignments of error but generally
makes two arguments. First, she contends Appellees’ entryway and threshold were not
in compliance with applicable Ohio building code regulations, and as such, Appellees are
negligent per se. Thus, she claims the open and obvious doctrine is inapplicable and
reversal is required.
{¶21} Second, she argues genuine issues of material fact exist about the entryway
and the cause of her fall, which preclude the application of the open and obvious doctrine
and an award of summary judgment in Appellees’ favor. For the following reasons, both
arguments lack merit.
{¶22} Appellate courts review summary judgment decisions anew and apply the
same standard used by the trial court. Civ.R. 56(C) dictates
the summary judgment standard.
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, * * * 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.
Civ.R. 56(C).
Case No. 22 MA 0079
–6–
Negligence per se
{¶23} Appellant’s claim that the entryway and threshold did not comply with
applicable Ohio building codes was sufficiently raised to the trial court via Appellant’s
arguments and her citation to building code regulations. “Ohio law does not require
negligence per se to be pled with particularity because negligence and negligence per se
are closely intertwined concepts and Ohio's Civ.R. 8 requires only notice pleading.” Base-
Smith v. Lautrec, Ltd., 12th Dist. Butler No. CA2013-07-115, 2014-Ohio-349, ¶ 4, fn.
2; Gress v. Wechter, 6th Dist. Huron No. H-12-023, 2013-Ohio-971.
{¶24} Appellant argues the open and obvious doctrine does not apply here
because Appellees’ entryway or threshold on which she tripped and fell was in violation
of Ohio’s commercial building code. Thus, she contends they were negligent per se.
{¶25} To succeed in an action for negligence, a plaintiff must show the existence
of a duty, a breach of duty, and the breach of duty was the proximate cause of the
plaintiff's injuries. Galo v. Carron Asphalt Paving, Inc., 9th Dist. Lorain No. 08CA009374,
2008-Ohio-5001, ¶ 8, citing Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565, 697
N.E.2d 198 (1998). The practical effect of a statutory violation or negligence per se is the
statutory violation satisfies the breach and duty elements of negligence. Lang v. Holly
Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 15. A plaintiff
must still prove causation and damages. Id. Negligence per se is an exception to the
open and obvious doctrine. It “does not override statutory duties.” Id. at ¶ 14.
{¶26} The Ohio Building Code, however, consists of administrative rules enacted
and created by administrative agency employees. Because administrative rules are not
legislation enacted by the General Assembly, a violation does not
constitute negligence per se and the open and obvious doctrine still applies. Lang, supra,
at ¶ 20; Chambers, supra, at 568; Cika-Heschmeyer v. Young, 7th Dist. Mahoning No. 18
MA 0048, 2019-Ohio-502, ¶ 23.
{¶27} Because the codes Appellant claims were violated are administrative code
violations, negligence per se does not apply. Thus, the open and obvious doctrine is still
viable. Id.{¶28} In support of this argument, Appellant relies on McHugh v. Zaatar, 9th Dist.
Lorain No. 14CA010591, 2015-Ohio-143, for the proposition that a building code violation
amounts to negligence per se. However, Zaatar explicitly held that a building code
Case No. 22 MA 0079
–7–
violation does not amount to negligence per se. Id. at ¶ 25. Instead, it was the landlord’s
violation of R.C. 5321.04(A)(1) and (A)(2) that constituted negligence per se in that case.
These sections of the Ohio Revised Code are legislative enactments. Among other
things, R.C. 5321.04(A)(1) and (A)(2) require a landlord, who is a party to a residential
rental agreement, to comply with applicable building code regulations affecting health,
safety, and keeping the premises in a fit and habitable condition. Id. at ¶ 24. Here, the
property at issue was commercial and not residential. Moreover, Appellant does not
allege Appellees violated these sections of the Revised Code or any section of the
Revised Code.
{¶29} Accordingly, Appellant’s first argument lacks merit.
Genuine Issues of Material Fact
{¶30} Appellant’s second argument asserts the trial court erred in granting
summary judgment because genuine issues of material fact exist. A “material fact”
for summary judgment depends on the type of claim being litigated. Hoyt, Inc. v. Gordon
& Assocs., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995),
citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505 (1986).
[W]e must be mindful that “‘[s]ummary judgment is a procedural device to
terminate litigation and to avoid a formal trial where there is nothing to try.
It must be awarded with caution, resolving doubts and construing evidence
against the moving party, and granted only when it appears from the
evidentiary material that reasonable minds can reach only an adverse
conclusion as to the party opposing the motion. * * * ’ ” (Citations
omitted.) Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, 24 O.O.3d
1, 2, 433 N.E.2d 615, 616, quoting Vetovitz Bros., Inc. v. Kenny Constr.
Co. (1978), 60 Ohio App.2d 331, 332, 14 O.O.3d 292, 293, 397 N.E.2d 412,
414.
Osborne v. Lyles, 63 Ohio St.3d 326, 333, 587 N.E.2d 825 (1992).
{¶31} Furthermore, “the trial court is not permitted to weigh the evidence or
choose among reasonable inferences. Dupler v. Mansfield Journal Co. (1980), 64 Ohio
St.2d 116, 121, 413 N.E.2d 1187. Rather, the court must evaluate the evidence, taking
all permissible inferences and resolving questions of credibility in favor of the non-moving
Case No. 22 MA 0079
–8–
party. Id.” Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, 893 N.E.2d 245, ¶ 10
(9th Dist.).
{¶32} As stated, to establish actionable negligence, Appellant must show the
existence of a duty, a breach of duty, and an injury proximately resulting from the
breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680,
693 N.E.2d 271 (1998); Zuzan v. Shutrump, 155 Ohio App.3d 589, 2003-Ohio-7285, 802
N.E.2d 683, ¶ 6 (7th Dist.).
{¶33} The legal duty owed by a landowner to one who enters upon his land
depends on the status of the entrant. Shump v. First Continental-Robinwood Assoc., 71
Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). Appellant was a business invitee at the
time she fell. As a business invitee, Appellees owed her a duty of “ordinary care in
maintaining the premises in a reasonably safe condition so that its customers are not
unnecessarily and unreasonably exposed to danger. * * * A shopkeeper is not, however,
an insurer of the customer's safety.” (Citations omitted.) Paschal v. Rite Aid Pharmacy,
Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985).
{¶34} A storeowner has a duty to exercise ordinary care and to protect customers
by maintaining the premises in a safe condition. This duty includes warning invitees of
latent defects of which it has actual or constructive knowledge. Allen v. 5125 Peno, LLC,
2017-Ohio-8941, 101 N.E.3d 484, ¶ 10 (11th Dist.).
{¶35} However, if a condition on one's property is open and obvious, then an
owner has no duty to warn her guest of the danger because the landowner may
reasonably expect individuals encountering the condition to discover the danger and take
appropriate measures to protect themselves from it. Simmers v. Bentley Constr. Co., 64
Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The rationale for the doctrine is the open
and obvious nature of the hazard itself is sufficient warning to the individual encountering
it. Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d 1161, ¶ 10 (2d
Dist.), quoting Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, ¶ 13. The open-and-obvious test “ ‘properly considers the nature of the dangerous
condition itself, as opposed to the nature of the plaintiff's conduct in encountering it.’ ” Id.{¶36} The critical inquiry is whether the danger is “discoverable or discernible by
one acting with ordinary care under the circumstances.” Holcomb v. Holcomb, 12th Dist.
Clermont No. CA 2013-10-080, 2014-Ohio-3081, ¶ 16, quoting Vanderbilt v. Pier 27, LLC,
Case No. 22 MA 0079
–9–
2013-Ohio-5205, 2 N.E.3d 966, ¶ 12 (12th Dist.). The injured party must not have actually
seen the condition before encountering it. Instead, we must decide whether a reasonable
person exercising ordinary care in the same circumstances would have perceived the
risk, avoided it, and prevented injury. Id.{¶37} Whether a person owes a duty of care to protect individuals against an open
and obvious danger is generally an issue of law for a court to decide. However, whether
the hazard in a case is open and obvious is a fact-driven issue which “may involve a
genuine issue of material fact, which a trier of fact must resolve.” Henry v. Dollar Gen.
Store, 2d Dist. Greene No. 2002-CA-47, 2003-Ohio-206, ¶ 10, citing Mussivand v. David,
45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶38} Whether a risk is open and obvious can be decided by a court as a matter
of law when only one conclusion can be drawn from the established facts. McDonald v.
Marbella Restaurant, 8th Dist. Cuyahoga No. 89810, 2008-Ohio-3667, ¶ 30; Ray v. Wal-
Mart Stores, Inc., 4th Dist. Washington No. 08CA41, 2009-Ohio-4542, ¶ 29. If reasonable
minds could disagree about whether the condition presents an open and obvious danger,
then the trier of fact must resolve this issue before a court determines as a matter of law
that the landowner has a duty. Schmitt v. Duke Realty, LP, 10th Dist. Franklin No. 04AP-
251, 2005-Ohio-4245; Henry, supra, at ¶ 11.
{¶39} Here, the undisputed facts in evidence do not permit reasonable minds to
reach different conclusions, and as such, a jury question does not exist.
{¶40} Appellant identifies two facts as precluding the application of the open and
obvious doctrine. She argues the threshold in the entryway was not an open condition
based on the fact that the rise or elevation difference was obstructed from her view as
she traversed through the doorway because the door was closed. Appellant, however,
does not identify evidence showing the threshold or doorway was obstructed in this
manner. Although she did raise arguments of fact in certain trial court filings, she did not
produce, offer, or file evidence supporting these contentions. She provided no evidence
in furtherance of her contentions.
{¶41} Appellant also claims the automatic door snapped closed quickly which
caused her to fall. This factual allegation is likewise in Appellant’s trial court filing but is
not contained in evidentiary materials. Appellant did not file or attach an affidavit or
deposition testimony in support of her assertions. Thus, we cannot consider the
Case No. 22 MA 0079
– 10 –
allegations since they are not in evidence. See Vahila v. Hall, 77 Ohio St.3d 421, 429,
674 N.E.2d 1164 (1997); Civ.R. 56(E) (requiring the nonmoving party to put forth
summary judgment compliant evidence that sets forth specific facts showing there is a
genuine issue for trial).
{¶42} The only deposition testimony submitted was the deposition of Lisa Alexi,
an employee of Hanger Clinic. Neither Appellant nor her representatives were present
for the deposition, yet defense counsel stated on the record that Appellant was notified
and did not attend.
{¶43} Alexi was employed by Hanger Clinic as a billing specialist. She testified
Appellant was a patient at the clinic before and after her fall at Hanger’s Boardman, Ohio
location. Alexi was the senior office administrator at the time of her deposition and was
present on the day Appellant fell.
{¶44} Appellant was at the business to have her orthotic adjusted. This was not
her first visit to this location. Alexi could not recall what type of orthotic Appellant had.
{¶45} On the day of the accident, Appellant entered the office through the patient
entrance, which is the front door. The door has a button which enables it to be opened
automatically.
{¶46} Alexi, as part of her job, had to unlock and lock this door. Alexi is not aware
of any other customers falling in this entryway. Alexi used a different entrance or the
employee entrance.
{¶47} Alexi agreed the photo exhibits shown to her during the deposition
accurately depicted the area on the date of Appellant’s fall. The photographs depict the
front door threshold over which patients entered the building. Alexi agreed this photo
depicted the entranceway floor and threshold leading from outside as consisting of three
different materials. Upon entering this office from outside, one would encounter three
different surfaces. Outside there was a black “pressure pad to recognize weight.” Then,
there is a bricked area bordering the black pad. Next, is a metal threshold. And inside
the entrance, was a tiled floor. The different flooring types and materials were readily
discernible. (Depo. p. 17.)
{¶48} The photographs show the entranceway as consisting of one door, which
per the testimony came from the outside. Then there is a tiled breezeway and a second
Case No. 22 MA 0079
– 11 –
door, which is closed in the photos. Between the two doors, there are two rubber-edged
floor mats and a heat register.
{¶49} Defense counsel asked Alexi about the weather that day and if it was light
out at the time, and Alexi could not recall. Defense counsel also asked Alexi if there “were
* * * problems with wet surfaces or anything like that.” Alexi again said she did not
remember. (Depo. p. 16-17.)
{¶50} Alexi agreed the outside door was automatic and allowed patrons entering
from the parking lot to push a button, which activated the door and caused it to open
automatically. Alexi was not asked and did not state whether Appellant used this
automatic door function on the date of her fall or if Appellant manually opened it. (Depo.
p. 18.)
{¶51} According to Alexi, Appellant was carrying a cup of coffee at the time of her
fall, and Alexi heard it hit the floor. Alexi did not see her fall. She went to assist Appellant
and noticed she was also carrying a bag of shoes, her purse, and a thermos. Appellant
was alone at the time. Alexi agreed that nothing was wrong with the lighting that day.
{¶52} Alexi also confirmed Appellant did not complain about being distracted “by
anything or anyone as she” entered the building. (Depo. p. 20.) Alexi also agreed there
was no gap or step in the entryway flooring and “this threshold is kind of flush with the
ground.” (Depo. p. 23.) After Appellant fell, Alexi agreed she did not observe a “defect
or problem in that area * * *.” Alexi was not asked and did not identify what caused
Appellant to fall.
{¶53} Alexi explained depending on the day of the week, Hanger would have
anywhere from 10 to 50 patients per day. Hanger was at this location for about 18 years,
and the photo exhibits depict how the entrance looked for the duration of this time. Alexi
agreed that during this period, she was not aware of any other individuals falling.
{¶54} Appellees claim the nature of the entryway and threshold were discernable
and visible, not hidden, and Appellant would not have fallen had she been watching where
she was walking.
{¶55} The evidence presented by way of deposition testimony and photographs
establishes the nature of the entryway as consisting of three different flooring materials.
Further, the metal threshold in between the brick and floor tile is readily apparent in the
photographs and is consistent with Alexi’s testimony. Whether Appellant was aware of
Case No. 22 MA 0079
– 12 –
the threshold and different flooring types upon opening the door that day is not in
evidence. But what is in evidence shows the nature of the doorway and the open and
visible nature of the different flooring materials and the metal threshold were readily
visible. Thus, the condition was open and obvious. Armstrong v. Best Buy Co., 99 Ohio
St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13.
{¶56} Accordingly, because the condition of the entryway was open and
observable, the trial court correctly applied the open and obvious doctrine, and found
Appellees owed no duty of care. Id. The factual allegations on which Appellant relies are
not in evidence, and thus, we cannot consider them.
Conclusion
{¶57} Based on the foregoing, Appellant’s arguments on appeal lack merit, and
the trial court’s decision is affirmed.
Waite, J., concurs.
Powell, J., concurs.
Case No. 22 MA 0079
[Cite as Dintino v. Hanger Prosthetics & Orthotics E., Inc., 2023-Ohio-797.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.