Barcy v. St. Vincent Charity Med. Ctr. ( 2022 )

[Cite as Barcy v. St. Vincent Charity Med. Ctr., 2022-Ohio-1064.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
KEVIN BARCY, :
Plaintiff-Appellee, :
No. 110584
v. :
ST. VINCENT CHARITY
MEDICAL CENTER, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-912342
Appearances:
Paul Knott, for appellee.
Davis & Young, Thomas W. Wright, and Matthew P.
Baringer, for appellant St. Vincent Charity Medical
Center.
EILEEN T. GALLAGHER, J.:
Defendants-appellants, St. Vincent Charity Medical Center (“SVCMC”)
and Outreach Professional Services, Inc., d.b.a. St. Vincent Medical Group
(“Outreach”) (together the “appellants”), appeal from the trial court’s partial
judgment in favor of plaintiff-appellee, Kevin Barcy (“Barcy”), following a bench trial.
Appellants raise the following assignments of error for review:
1. The trial court erred in issuing declaratory judgment that
[appellants] are precluded from billing plaintiff for medical services
they provided because [appellants] did not comply with Ohio
Adm.Code 5160-1-13.1.
2. The trial court erred in not finding that plaintiff was equitably
estopped from challenging the validity and enforceability of the Letters
of Protection, Waivers, and Assignments.
After careful review of the record and relevant caselaw, we affirm the trial
court’s judgment.
I. Procedural and Factual History
SVCMC is a not-for-profit hospital located in Cleveland, Ohio. Outreach
is a professional group that employs physicians who have privileges at SVCMC.
SVCMC and Outreach are separate and distinct entities that maintain separate
locations, employ separate employees, have separate billing offices, and bill separately
for services rendered.
Barcy has a history of severe mental illness, including diagnoses of
depression, anxiety, mood disturbance, bipolar disorder, and hallucinations. Due to
his condition, Barcy was last employed in 2013, and was approved for social security
disability benefits in January 2016. At all relevant time periods, Barcy was a
Medicaid-eligible recipient and received Medicaid benefits through “United
Healthcare Community Plan - Medicaid.”
On July 24, 2014, Barcy slipped and fell in a grocery store. He suffered a
fractured ankle and aggravated a preexisting degenerative disc disease in his lower
back. As a result of his injuries, Barcy filed suit against Marc Glassman, Inc. in
Cuyahoga C.P. No. CV-17-881388, wherein Barcy sought compensation for the
injuries sustained as a result of his fall.
Defendant Banyan Finance, L.L.C. (“Banyan”) is a Delaware Limited
Liability Company that is engaged in the business of purchasing patient account
receivables from medical providers. Defendant Red Fern, L.L.C. (“Red Fern”) is a
former Delaware Limited Liability Company that operated as an agent of Banyan and
located medical providers from whom Banyan could purchase patient accounts.
On August 12, 2014, Banyan entered into a Casualty Medical Plan
Provider Agreement (the “Provider Agreement”) with Outreach. Under the terms of
the Provider Agreement, Banyan agreed to pay Outreach a “guaranteed-minimum
reimbursement” for medical services rendered to patients by Outreach. In exchange,
Outreach agreed to assign Banyan its full bill for services rendered to such patients.
The minimum-guaranteed reimbursement was 42 percent of the total charges billed
by Outreach for procedures, and 50 percent of the total charges billed by Outreach for
consultations. The Provider Agreement also contained a provision that entitled
Outreach to additional payments depending on the percentage of the medical
receivables collected by Banyan and whether the collection occurred within 24
months of the parties’ assignment agreement. Finally, the Provider Agreement
contained a confidentiality clause that prevented Outreach from disclosing the terms
of the agreement to “any outside party,” including Outreach’s patients.
On June 24, 2015, Banyan delivered a fax message to Outreach officials
that notified Outreach that Barcy had been approved for “a minimum guaranteed
payment for [a] Neuro Consult through the Banyan Casualty Plan.” (Plaintiff’s exhibit
No. 4.) The fax message included a Letter of Protection Form (the “LOP”) and a cover
sheet with instructions for Outreach to have “the patient sign [the LOP] at the time of
their appointment.” The LOP attached to the fax message provided as follows:
I, Barcy, Kevin (the “Patient”), injured and pursuing a personal injury
claim or cause of action, acknowledge that [Outreach] has provided
medical services to me in connection with the injuries that I sustained
in the accident(s) or other event(s) in which I was involved that
occurred on 07/24/2014 (the “injury”). In recognition of the foregoing,
I hereby authorize and direct The Podor Law Firm, L.L.C. (the
“Attorney”), upon receipt by the Attorney of any proceeds of my claim
or lawsuit relating to my injury (whether such proceeds arise from a
settlement, judgment, structured settlement or otherwise) (collectively
“Proceeds”), to pay directly to [Outreach] my entire bill for services
rendered to me by [Outreach]. Payment of my services bill shall be paid
to [Outreach] prior to the attorney disbursing any proceeds to me.
To the extent that I have health insurance benefits, I hereby relinquish
those rights voluntarily, knowingly, and intentionally. I fully
understand that I am directly responsible to [Outreach] for the entire
amount of the services bill. Furthermore, I understand that my
payment obligation is not contingent on my recovery of any proceeds.
In order to secure my obligation to pay the amount of my services bill
to [Outreach], and in consideration for [Outreach’s] agreement to
forebear from taking any action to collect the services bill while I am
pursuing my lawsuit relating to the injury, I hereby grant [Outreach],
in accordance with the Uniform Commercial Code as in effect in the
applicable jurisdiction, a security interest and lien upon: (i) the
proceeds, and (ii) all proceeds thereof, in each case whether now owned
or hereafter existing, acquired or arising, and wherever located.
The LOP did not contain Barcy’s signature at the time it was delivered to Outreach.
However, the document did contain the rubber-stamp signature of Barcy’s attorney.
At some point thereafter, the LOP was presented to and signed by Barcy.
(Defendants’ exhibit A.)
On July 9, 2015, Barcy met with Outreach employee, Dr. James Anderson
(“Dr. Anderson”), to address his ongoing back pain. At the conclusion of the
consultation, Dr. Anderson recommended that Barcy undergo spine surgery. Barcy
did not immediately agree to undergo the surgery but stated that he would consider
Dr. Anderson’s recommendations. On July 13, 2015, Outreach faxed a copy of Dr.
Anderson’s office notes to Banyan along with a coversheet that identified Barcy’s
health plan as United Health Care Community Plan. (Plaintiff’s exhibit No. 5.)
On July 23, 2015, Barcy and his attorney executed a Patient
Acknowledgement and Waiver form (the “Waiver form”), wherein Barcy confirmed
that he was a patient at “St. Vincent,” and made the following acknowledgments:
Despite any requirement * * * for [Outreach] to submit claims for
services and treatments to my Health Plan within a particular time
period, and despite any statement * * * notifying [Outreach] that failure
to submit claims for services within a specific timeframe will preclude
payment to [Outreach] and prohibit [Outreach] from charging me for
said services, [Outreach] will not be submitting claims to my health
plan for any services he/she has rendered to me[.]
***
I will be responsible for payment in full for all services rendered to me
by [Outreach];
In lieu of [Outreach] billing me or my health plan for my services,
[Outreach] will enter into a Letter of Protection with my attorney
whereby [Outreach] will be compensated for all services that he/she
provides to me, as a direct or indirect result of my personal injury case,
from the proceeds of my settlement of said personal injury case; and
The compensation that [Outreach] will receive under the LOP will
likely exceed the compensation that [Outreach] would have received if
[Outreach] would have submitted claims to my health provider for my
services, and I believe that such additional compensation is equitable
in the light of the nature of the services that [Outreach] will be
furnishing to me.
(Plaintiff’s exhibit No. 6.)
On August 19, 2015, and September 23, 2015, Banyan provided
Outreach with separate commitment letters wherein Banyan agreed to make
guaranteed minimum reimbursements to Outreach “with respect to the medical
receivables arising from [Outreach’s] performance of [medical services] for Kevin
Barcy.” (Plaintiff’s exhibit Nos. 7 and 8.) The commitment letters were subject to
certain conditions, including Outreach’s obligation to (1) deliver a fully executed LOP
“in form and substance acceptable to Banyan,” (2) provide a bill showing the gross
charges for the medical services rendered, and (3) deliver to Banyan a fully executed
assignment agreement.
On October 16, 2015, Barcy met with Dr. Anderson and agreed to
undergo the recommended surgery procedure. Outreach then faxed Medicaid a
completed clinical information request form seeking preapproval for Barcy’s surgery.
The procedure was preapproved by Medicaid on October 19, 2015, and Barcy
underwent surgery at SVCMC on October 20, 2015. (Plaintiff’s exhibit No. 10.)
On November 2, 2015, Outreach submitted its bill for the surgery in the
amount of $11,939 to Medicaid for payment. (Plaintiff’s exhibit No. 22.) On
November 24, 2015, Outreach received payment from Medicaid in the amount of
$1,525.84 as payment in full for Dr. Anderson’s surgical bill. (Id.)
Despite accepting payment from Medicaid, however, Outreach also
assigned to Red Fern its entire bill in the amount of $12,235.00 for the medical
services rendered to Barcy on October 20, 2015. (Plaintiff’s exhibit No. 10.) Red Fern
subsequently assigned its interest in the medical receivables to Banyan on November
10, 2015. (Defendant’s exhibit D.) On December 18, 2015, Outreach received
payments from Banyan totaling $5,162.38 as payment in full for Dr. Anderson’s
surgical bill. (Plaintiff’s exhibit No. 22.) Based on this duplicate payment, Medicaid
recouped the sum of $1,135.00 from Outreach between February 26, 2016, and
October 3, 2017. (Id.) However, Outreach continues to hold the sum of $390.84 that
Medicaid paid towards Outreach’s bill for the rendered medical services.
Unlike Outreach, SVCMC did not enter into a Provider Agreement with
Banyan. In addition, Barcy did not execute a LOP or Waiver form with SVCMC.
Nevertheless, SVCMC assigned to Red Fern its entire bill in the amount of $32,361.30
for the medical services rendered to Barcy. (Plaintiff’s exhibit No. 15.) Red Fern
subsequently assigned its interest in the medical receivables to Banyan on November
24, 2015. (Defendant’s exhibit D.) On December 1, 2015, SVCMC received payment
from Banyan in the amount of $13,591.75. (Plaintiff’s exhibit No. 24.)
In addition to the assignment of medical bills relating to the surgery
performed on October 20, 2015, Outreach and SVCMC also assigned to Red Fern
various medical bills relating to pre- and post-operation appointments. These rights
were later assigned to Banyan. Collectively, the medical receivables assigned to
Banyan totaled $53,303.30.
On December 17, 2018, Barcy settled his personal injury case against
Marc Glassman, Inc. The settlement did not include compensation for the medical
services rendered by Outreach and SVCMC. Accordingly, Banyan sought a lien
against Barcy’s settlement proceeds in the amount of $53,303.30 pursuant to its
rights under the various assignment agreements with appellants.
On March 11, 2019, Barcy filed a civil complaint, seeking a declaratory
judgment against appellants and defendants Banyan, Red Fern, the Ohio Department
of Medicaid (“ODM”),1 and Prime Case Funding, L.L.C. (“PCF”).2 Relevant to this
appeal, Barcy sought a declaratory judgment as follows:
1. The Letter of Protection, Waiver and Assignment fail and are
unenforceable against plaintiff because defendants failed to comply
with Ohio Administrative Code Section 5160 1-13.1(c)(3).
2. That the Letter of Protection, Waiver and Assignment are
unenforceable against plaintiff because they fail for want of
consideration.
3. That the Letter of Protection, Waiver and Assignment of Defendant
[SVCMC]’s medical bills to defendant Banyan fail and are
unenforceable against plaintiff because the Letter of Protection fails to
mention defendant [SVCMC].
4. That the Letter of Protection, Waiver and Assignment of any of
[Outreach]’s bills after the date upon which the Letter of Protection was
executed fails and is unenforceable against plaintiff because the Letter
1 Defendant ODM possessed a statutory lien against Barcy’s settlement proceeds
and was joined in this action pursuant to R.C. 2721.12. Per stipulation, ODM did not
appear or participate in the bench trial.
2 Defendant PCF possessed a lien against Barcy’s settlement proceeds and was
joined in this action pursuant to R.C. 2721.12.
of Protection does not mention any future medical treatment and
plaintiff did not agree to be personally responsible for future medical
bills.
5. That Defendant Banyan’s claimed lien against the settlement
proceeds fails because plaintiff was not compensated for injuries which
gave rise to the medical expenses that were assigned to defendant
Banyan.
On May 13, 2019, Banyan and Red Fern filed a joint answer and set forth
counterclaims against Barcy for breach of contract and unjust enrichment. The
counterclaims sought to recover unpaid medical receivables in the amount of
$53,303.00.
On November 25, 2019, Barcy was granted leave to file an amended
complaint. The amended complaint restated Barcy’s request for a declaratory
judgment, but also set forth a claim for violations of the Consumer Sales Practices Act
(“CSPA”).
On February 21, 2020, appellants filed a joint motion for summary
judgment, arguing that Barcy was not entitled to a declaratory judgment pursuant to
the doctrine of equitable estoppel. Appellants maintained that it would be inequitable
to grant Barcy declaratory relief when the evidence demonstrates that Barcy and his
former attorney represented to appellants that Barcy intended to pay for his spinal
surgery pursuant to his own arrangement with Banyan. Appellants asserted that they
relied on Barcy’s representations and “entered into [a] payment arrangement [with
Banyan] at the express request of Barcy.” Appellants stated that they had no
obligation to advise Barcy of the Medicaid consequences of his agreement with
Banyan or otherwise interfere with the legal advice provided by Barcy’s attorney.
Appellants supported their joint motion for summary judgment with
portions of the deposition testimony of SVCMC’s former Director of Revenue Cycle
Operations, Nanette Woldin (“Woldin”), and copies of the Provider Agreement, the
LOP, the Waiver form, Banyan’s commitment letters, and the assignments of medical
receivables to Banyan.
Banyan and Red Fern also sought summary judgment against Barcy,
arguing that (1) Banyan had no duty to advise Barcy that any medical services were
covered by Medicaid, (2) the LOP signed by Barcy does not fail for lack of
consideration, and (3) the CSPA is not applicable because the instant matter involved
exempt transactions under R.C. 1345.01. Regarding Barcy’s reliance on Ohio
Adm.Code 5160-1-13.1(C) in his complaint, Banyan and Red Fern maintained that (1)
they were not the “provider” as contemplated under the administrative code, (2) they
had “no knowledge that Barcy was Medicaid eligible or had any such coverage in
place,” and (3) “notwithstanding the foregoing, all of the conditions of [the
administrative code] were met through Barcy’s execution of the LOP and the Waiver.”
Finally, Banyan and Red Fern argued they were entitled to summary judgment on
their breach-of-contract and unjust-enrichment counterclaims because Barcy agreed
to pay SVCMC and Outreach his full medical bill upon recovery of any proceeds in his
slip-and-fall case and, in turn, those rights to recovery were assigned to Banyan.
In support of their joint motion for summary judgment, Banyan and
Red Fern attached copies of the LOP and the Waiver form that were signed by Barcy
and his attorney. The motion also attached copies of the pertinent commitment
letters and assignments of medical receivables.
On March 24, 2020, Barcy filed a brief in opposition to summary
judgment. In his opposition brief, Barcy argued that summary judgment was
premature because “material questions of fact exist as to whether defendants violated
not only the [Ohio Administrative Code], but also the [CSPA], because of the
numerous deficiencies in the documents upon which defendants base their claims.”
Barcy supported his opposition brief with his own affidavit and references to the
Provider Agreement, the LOP, the Waiver form, Dr. Anderson’s office notes, Banyan’s
commitment letters, and the various assignments of medical receivables.
On August 26, 2020, the trial court granted partial summary judgment
in favor of each defendant, stating:
Upon due consideration, the court finds there remain no material
issues of fact and defendants are entitled to judgment as a matter of law
on [Barcy]’s claim for a declaratory judgment that the [LOP], [Waiver
form], and assignments are unenforceable against [Barcy] because they
fail for want of consideration. The court grants defendants’ summary
judgment on that claim only.
The court, however, determined that there remained genuine issues of
material fact on Barcy’s remaining requests for declaratory relief and the defendants’
counterclaims, stating:
The court finds there remain material issues of fact and that defendants
have not shown they are entitled to judgment as a matter of law on
[Barcy]’s other claims or defendants’ counterclaims. The court
therefore denies defendants’ motion for summary judgment on all
claims and counterclaims other than that described above.
The matter proceeded to a bench trial on February 22, 2021. At trial,
Woldin was called to testify as if on cross-examination. Woldin testified that she was
formerly employed as SVCMC’s Director of Revenue Cycle Operations and was
responsible for SVCMC’s billing procedures at the time of Barcy’s surgery. Relevant
to this appeal, Woldin confirmed that SVCMC and Outreach are distinct entities that
have separate offices, separate employees, and separately bill patients for medical
services. Throughout her testimony, Woldin was questioned about the Provider
Agreement, the LOP, and the Waiver form. When asked what relevance these
documents had to SVCMC’s interests, Woldin confirmed that SVCMC did not enter
into a provider agreement with Banyan or Red Fern, and that she was not aware of
any LOP or Waiver form entered into between SVCMC and Barcy. Woldin agreed that
although the Waiver form listed “St. Vincent” as the medical-services provider, the
form’s incorporation of the LOP entered into between Barcy and Outreach
demonstrated that the Waiver form was only intended to apply to Outreach.
Accordingly, Woldin was not aware of any documents that were executed between
Barcy and SVCMC concerning the payment of his medical bills. (Tr. 48-49.)
Woldin was also questioned at length regarding the scope and nature of
SVCMC’s assignments of medical receivables to Red Fern, who then assigned their
interests to Banyan. Woldin testified that her understanding of the assignments was
that SVCMC was assigning its right to collect the full bill for medical services rendered
to Barcy in exchange for “Banyan/Red Fern’s” agreement to pay SVCMC a guaranteed
minimum payment for said medical services. (Tr. 58-59.) Woldin confirmed that
SVCMC did not notify Barcy that his medical bills were assigned to Banyan/Red Fern.
(Tr. 60-61.)
Finally, Woldin testified that although SVCMC understood Barcy was a
Medicaid-eligible patient, SVCMC did not engage in any discussions with Barcy
concerning the fact that his medical services were Medicaid provider services and that
Medicaid would pay for the medical services. (Tr. 50.) In addition, Woldin confirmed
that SVCMC did not advise Barcy in writing that the charges for his rendered medical
services would not be submitted to ODM. (Tr. 61.)
On direct examination, Woldin testified that SVCMC did not submit
Barcy’s medical bills to ODM because “Medicaid is the payer of last resort.” (Tr. 62.)
Woldin explained that pursuant to Medicaid regulations, “if someone else is ready and
willing to pay a bill, [SVCMC] must bill them before billing Medicaid.” (Tr. 62.) In
this matter, SVCMC perceived Banyan as the primary insurance company based on
the information it received from “the medical group,” i.e., Outreach. (Tr. 63.) Woldin
later conceded, however, that SVCMC would ordinarily have no right to directly bill a
patient for rendered medical services if that patient is a Medicaid-eligible patient. She
further testified that she had no knowledge of “what the arrangement is between Mr.
Barcy and Banyan.” (Tr. 66.)
Linda Riegelmayer (“Riegelmayer”), testified as if on cross-
examination. She testified that in 2014, she was employed by Outreach and served as
Dr. Anderson’s secretary. Riegelmayer stated that she was responsible for seeking
preapproval of payment for surgeries performed by Dr. Anderson. Relevant to this
case, Riegelmayer testified that Outreach was aware Barcy was a Medicaid-eligible
patient, but that “Banyan was covering [the payment] of his medical bills.” (Tr. 78.)
Riegelmayer stated that she was under the impression Barcy understood his medical
bills would be submitted to Banyan. However, Riegelmayer confirmed that Outreach
did not notify Barcy in writing that his medical bills would be submitted to Banyan
and not to ODM.
Regarding the preapproval process, Riegelmayer testified that although
Outreach received commitment letters from Banyan that authorized Outreach to
proceed with the surgery, Outreach also sought preapproval from Medicaid.
Riegelmayer explained that she was advised to seek preapproval from Medicaid “just
in case Banyan did not pay for it, [Outreach] had something to fall back on[.]” (Tr.
91.) Barcy, however, was not notified that Medicaid had preapproved payment of his
medical services. (Tr. 92.)
On direct examination, Riegelmayer explained how Dr. Anderson’s
office became aware of Banyan, stating:
We received an email from [SVCMC] that we may or may not be getting
referrals with patients who have the Banyan coverage and we were to
treat it as a coverage, see the patient, and just proceed with the
insurance company how we do with insurance companies, make sure
we do the proper paperwork and get the proper okays.
(Tr. 97.)
Riegelmayer stated that her office later received a fax message from
Banyan, advising Outreach that Barcy “had been approved for a minimum guaranteed
payment for a Neuro Consult through the Banyan Casualty Medical Plan.” (Plaintiff’s
exhibit No. 4.) Riegelmayer testified that she spoke with Barcy about Outreach getting
approval from Banyan to proceed with his surgery and that Barcy did not question
why Outreach was billing Banyan.
Director of Finance at Outreach, Theresa Wrabel (“Wrabel”), testified
as if on cross-examination. She confirmed that Outreach understood Barcy was
insured under a Medicaid-healthcare plan and that Barcy would not have been
personally liable for his medical bills if they were submitted to, and paid by, Medicaid.
Wrabel confirmed that prior to Barcy’s surgery, Outreach and Banyan entered into
the Provider Agreement, whereby Banyan agreed to pay Outreach a certain
percentage of the patient’s medical-service charges in exchange for Outreach’s
agreement to assign the outstanding balance of the patient’s medical bill in favor of
Banyan. The terms and conditions of the Provider Agreement were not disclosed to
Barcy.
Wrabel further confirmed that despite its commitment from Banyan,
Outreach submitted a bill to Medicaid in an amount of $11,939, and received payment
in the amount of $1,525.84 from Barcy’s Medicaid provider. Thereafter, Outreach
also received payment for the same medical services from Banyan in an amount
approximately five times greater than what was paid by Medicaid. Wrabel
acknowledged that once Outreach receives a payment from Medicaid, it is not entitled
to bill the patient for the remaining balance of the bill. Nevertheless, Outreach
accepted the guaranteed-minimum reimbursement payment from Banyan pursuant
to the Provider Agreement, proceeded with its obligations to execute an assignment
agreement in favor of Banyan/Red Fern, and returned all but $390 to Medicaid.
On direct-examination, Wrabel explained that Outreach was not
financially incentivized to bill Banyan instead of Medicaid. Rather, she indicated that
Banyan was billed for Barcy’s medical services based on her understanding that “Mr.
Barcy executed certain documents indicating that is how he wanted his bills to be
paid[.]” (Tr. 127.) Wrabel later clarified her statement on redirect-examination,
stating that Outreach billed Banyan because “I ha[d] documentation from Banyan
that said that we should be billing them.” (Tr. 133.)
General counsel for Banyan, Brandon Marton (“Marton”), testified on
behalf of defendants Banyan and Red Fern. He explained that Banyan is in the
business of purchasing medical receivables on a “LOP/lien basis” for patients with
personal injury cases. In turn, Red Fern served as a broker that looked nationwide
for receivables that would be appropriate for Banyan to purchase. Marton testified
that Banyan generated the LOP that was sent to Outreach and signed by Barcy in this
case. He clarified, however, that the LOP is presented to the patient by the medical
provider and not Banyan.
Marton testified that he was not aware that Barcy had Medicaid
coverage. In addition, he had no knowledge that Outreach and SVCMC were two
separate entities. However, he confirmed that Banyan paid Outreach and SVCMC
approximately “40 to 50 percent of [Barcy’s] medical bill” upfront in order to obtain
the assignments of Barcy’s outstanding medical bill, which totaled $53,303.30.
Barcy testified on his own behalf. He summarized his history of mental
illness and confirmed that he receives social security disability income. He further
described the circumstances of his slip-and-fall case and the severity of the resulting
injuries to his ankle and back. Barcy testified that at all relevant time periods he had
medical insurance with “UnitedHealth Community Plan through [ODM].” (Tr. 140.)
Barcy stated that when he arrived at Dr. Anderson’s office, he presented his
identification card and his UnitedHealth insurance card.
Regarding the LOP and the Waiver form, Barcy testified that he had no
recollection of signing either document and had no recollection of being told by
appellants’ representatives that Banyan intended to pay for his spinal surgery. The
only conversation Barcy recalled concerning his insurance coverage was a statement
from Dr. Anderson’s office that it was waiting for preapproval from Barcy’s Medicaid
provider before his surgery could be scheduled. Accordingly, Barcy maintained that
he was never advised or provided written notice that his surgical bill would not be
submitted to the ODM for payment. Barcy further stated that no one explained to him
that the medical services provided by appellants, including his surgery, were covered
Medicaid services and that other Medicaid providers may have rendered the medical
services at no charge to him.
On cross-examination, Barcy reiterated that although his signature and
the signature of his former attorney were present on the LOP and the Waiver form, he
did not recall having conversations with his former attorney about the documents or
a financial arrangement with Banyan. Barcy stated that he understood Banyan was
attempting to recover approximately $53,000 from his settlement proceeds because
they “paid for some of [his] medical procedures including [his] surgery.” (Tr. 158.)
However, he maintained that he had no knowledge of why Banyan would have
advanced payments for his spinal surgery, stating “I would never intentionally or
knowingly give up my Medicaid rights.” (Tr. 158.)
On May 14, 2021, the trial court issued findings of fact and conclusions
of law, granting partial judgment in favor of Barcy. In pertinent part, the trial court
found (1) appellants “were precluded from billing Barcy for services rendered due to
its failure to comply with Ohio Adm.Code 5160-1-13.1,” (2) “equitable estoppel does
not remove [appellants’] obligation to comply with Ohio Adm.Code 5160-1-13.1(C),”
(3) Banyan’s breach-of-contract claim against Barcy fails because the assigned claims
of appellants are unenforceable against Barcy, (4) Banyan failed to prove its claim for
unjust enrichment, and (5) the defendants did not violate the CSPA. The trial court
summarized its judgment as follows:
WHEREFORE, for the foregoing reasons, the court finds (1) for [Barcy]
on Count One of the complaint and declares the Letter of Protection,
Waiver and Acknowledgement and Assignments to be in violation of
Ohio Adm. Code 5160-1-13.1 and unenforceable against [Barcy] and
further declares that Banyan’s claimed lien against the settlement
proceeds fails for the same reasons; (2) for the defendants on Count
Two of the complaint; and (3) for [Barcy] on Banyan’s counterclaims.
The court orders that the settlement proceeds that remain in [former
attorney’s] IOLTA account should be disbursed first to attorney fees
and any remaining costs advances and unpaid litigation expenses, then
to satisfy [ODM]’s lien in the amount of $805.13 and the balance to be
distributed to Plaintiff Kevin Barcy.
Appellants now appeal from the trial court’s judgment.
II. Law and Analysis
A. Ohio Adm.Code 5160-1-13.1
In their first assignment of error, appellants argue the trial court erred
by granting partial judgment in favor of Barcy and declaring that they are precluded
from billing Barcy for medical services due to their failures to comply with Ohio
Adm.Code 5160-1-13.1.
Under the Ohio Declaratory Judgment Act, “courts of record may
declare rights, status, and other legal relations whether or not further relief is or could
be claimed.” R.C. 2721.02(A). The purpose of a declaratory judgment action is “‘to
serve the useful end of disposing of uncertain or disputed obligations quickly and
conclusively.’” Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d
977, ¶ 46 quoting Ohio Farmers Indemn. Co. v. Chames, 170 Ohio St. 209, 213, 163
N.E.2d 367 (1959). In order to obtain declaratory judgment relief, a party must
establish (1) a real controversy exists between the parties, (2) the controversy is
justiciable, and (3) speedy relief is necessary to preserve the rights of the parties.
Burger Brewing Co. v. Ohio Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d
261 (1973), citing Am. Life & Acc. Ins. Co. v. Jones, 152 Ohio St. 287, 89 N.E.2d 301(1949).
In this case, the trial court’s judgment relied extensively on Ohio
Adm.Code 5160-1-13.1, titled Medicaid Recipient Liability. The version of Ohio
Adm.Code 5160-1-13.1(C) in effect during the applicable time periods provided as
follows:
(C) Providers are not required to bill the Ohio department of medicaid
(ODM) for medicaid-covered services rendered to eligible consumers.
However, providers may not bill consumers in lieu of ODM unless:
(1) The consumer is notified in writing prior to the service being
rendered that the provider will not bill ODM for the covered service;
and
(2) The consumer agrees to be liable for payment of the service and
signs a written statement to that effect prior to the service being
rendered; and
(3) The provider explains to the consumer that the service is a covered
medicaid service and other medicaid providers may render the service
at no cost to the consumer.
Applying the foregoing provisions to the facts adduced at trial, the court
rendered the following conclusions of law:
In all instances, Outreach and SVCMC failed to fully comply with the
requirements of Ohio Adm.Code 5160-1-13.1(C) listed above. The LOP
and [Waiver form] do not indicate that the provider will not bill ODM.
No written statement was signed prior to each service being rendered,
and there is no evidence that Outreach and SVCMC explained to
[Barcy] that the services were covered Medicaid services and that other
Medicaid providers may render the service at no cost to him.
The court finds that [Barcy] is entitled to a declaratory judgment that
defendants Outreach and SVCMC did not comply with Ohio Adm.Code
5160-1-13.1 and therefore may not bill [Barcy] for the subject services.
***
Because, for the reasons discussed above, [Barcy] is not obligated to
pay Outreach or SVCMC for the services in the assigned invoices,
[Barcy] is not obligated to pay Banyan or Red Fern for the assigned
services. [Barcy] is entitled to judgment on defendants’ breach of
contract claim because defendants have not demonstrated that [Barcy]
failed to fulfill its contractual obligations without legal excuse.
The court further finds that [Barcy] is entitled to a declaration that
defendants, including Banyan, may not seek to enforce a lien against
the settlement proceeds to recover for the assigned bills.
On appeal, appellants argue “the trial court’s decision was against the
manifest weight of the evidence and/or was an erroneous application of the law.”
Appellants contend that “applying [Ohio Adm.Code 5160.-1-13.1(C)] to the facts in
this case demonstrates that Outreach and SVCMC complied with the provisions
through the documents produced by and signed by [Barcy] and his attorney.”
Specifically, appellants assert that the language contained in the LOP and the Waiver
form satisfied the requirements of the administrative code.
In an appeal from a civil bench trial, this court generally reviews the trial
court’s judgment under a manifest weight standard of review. Huntington Natl. Bank
v. Slodov, 8th Dist. Cuyahoga No. 110113, 2021-Ohio-2932, ¶ 47. In assessing whether
a verdict in a civil bench trial is against the manifest weight of the evidence, we
examine the entire record, weigh the evidence and all reasonable inferences, consider
the witnesses’ credibility, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the verdict must be overturned and a new trial ordered. Sonis v.
Rasner, 2015-Ohio-3028, 39 N.E.3d 871, ¶ 53 (8th Dist.), citing State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In weighing the evidence, we
are guided by a presumption that the findings of the trier of fact are correct. Id. at
¶ 54, citing Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
Thus, “a reviewing court will generally uphold a trial court’s judgment as long as the
manifest weight of the evidence supports it — that is, as long as ‘some’ competent and
credible evidence supports it.” Patel v. Strategic Group, L.L.C., 2020-Ohio-4990, 161
N.E.3d 42, ¶ 20 (8th Dist.), quoting MRI Software, L.L.C. v. W. Oaks Mall FL, L.L.C.,
2018-Ohio-2190, 116 N.E.3d 694, ¶ 12 (8th Dist.).
We note, however, that “[i]n reviewing a declaratory judgment case,
legal questions are subject to de novo review whereby no deference is given to the trial
court’s decision.” Gill v. Guru Gobind Sikh Soc. of Cleveland, 8th Dist. Cuyahoga No.
104634, 2017-Ohio-7163, ¶ 29 (citations omitted). Here, appellants present hybrid
arguments that challenge the trial court’s resolution of facts, as well as the court’s
interpretation of the terms contained within the documents executed by Barcy and his
attorney. To the extent appellants dispute the trial court’s interpretation of the LOP
and the Waiver form, we apply the de novo standard of review. In contrast, we apply
the manifest weight of the evidence standard to all arguments pertaining to the court’s
interpretation of competing facts and its consideration of witness credibility.
In addressing appellants’ challenges to the court’s interpretation of the
relevant documents signed by Barcy and his attorney, we must preliminarily
acknowledge that Outreach and SVCMC are distinct and independent entities. Each
entity was required to separately comply with the requirements of Ohio Adm.Code
5160-1-13.1 given Barcy’s status as a Medicaid-eligible patient. Relevant to this point,
the testimony adduced at trial established that Outreach was the only medical-service
provider implicated by the Provider Agreement, the LOP, and the Waiver form. The
LOP and the Waiver form were presented to Barcy by representatives of Outreach and
each document lists Outreach as the medical-service provider.3 Thus, our review of
the language contained in the foregoing documents is only pertinent to the interest of
Outreach and whether its agreements with Barcy satisfied the requirements of Ohio
Adm.Code-1-13.1. SVCMC’s compliance with the administrative code must be
separately addressed upon consideration of the testimony presented at trial.
As discussed, the LOP and Waiver form entered in favor of Outreach
were signed by Barcy and his attorney before Barcy underwent his spinal surgery.
Undoubtedly, these documents evidenced Barcy’s intent to relinquish significant
rights and take on equally significant personal liabilities. In the LOP, Barcy expressly
acknowledged that he (1) agreed to pay Outreach his “entire bill” with the proceeds of
his slip-and-fall settlement, (2) was relinquishing his health insurance benefits, (3)
understood that he was directly responsible to Outreach for the entire amount of his
services bill, and (4) was granting Outreach a security interest and lien on the
proceeds of his slip-and fall settlement. Similarly, Barcy acknowledged in the Waiver
form that (1) Outreach would “not be submitting claims to [his health plan] for any
services [Outreach] has rendered to [him],” (2) he would “be responsible for payment
in full for all services rendered by [Outreach],” and (3) Outreach was entering into an
LOP with Barcy in lieu of billing his healthcare provider. Barcy is presumed to have
knowledge and an understanding of the terms he agreed to by signing the LOP and
3 As discussed at trial, the Waiver form lists the medical-services “provider” as “St.
Vincent.” However, because the Waiver form incorporates the LOP, which was
exclusively executed in favor of Outreach, the representatives of Outreach and SVCMC
did not dispute that SVCMC was not a party to the LOP or the Waiver form.
the Waiver form. Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga No. 81593,
2003-Ohio-1734, ¶ 35 (“The parties to an agreement should be able to rely on the fact
that affixing a signature which acknowledges one has read, understood, and agrees to
be bound by the terms of an agreement means what it purports to mean.”).
Given the significance of the rights and responsibilities addressed in the
LOP and the Waiver form, it is reasonable to argue Barcy was afforded the protections
contemplated under Ohio Adm.Code 5160-1-13.1(C)(1) and (2) because Barcy
expressly relinquished his health insurance benefits (United Healthcare Community
Plan -Medicaid) and agreed to be directly responsible for Outreach’s entire bill. This
is true even though the LOP and the Waiver form do not directly reference ODM.
Nevertheless, even if this court were to construe the first and second
requirements of the administrative rule in favor of the appellants, we find the trial
court correctly concluded that there is no language in the LOP or the Waiver form to
suggest Outreach complied with the express requirement of Ohio Adm.Code 5160-1-
13.1(C)(3). The documents simply contain no language indicating that Barcy was
advised that his medical services were covered Medicaid services and that other
Medicaid providers could render his medical services at no cost to Barcy. Contrary to
appellants’ joint position on appeal, advising Barcy that he would be directly liable for
his medical bills and that his health plan provider would not be billed is not the same
as advising Barcy that his covered medical services would have been paid by Medicaid
at no cost to him. The explanation set forth in then Ohio Adm.Code 5160-1-13.1(C)(3)
is the heart of the administrative code section governing the billing of Medicaid-
eligible patients. Accordingly, we find the trial court’s interpretation of the terms set
forth in the LOP and the Waiver form did not constitute an erroneous application of
the law.
Recognizing that Ohio Adm.Code 5160-1-13.1(C)(3) does not require the
explanation to be in writing, we further find that competent and credible evidence
supports the court’s conclusion that there was no evidence that Outreach orally made
the necessary explanation to Barcy. At trial, Wrabel testified on behalf of Outreach
and conceded that Outreach understood Barcy was a Medicaid-eligible patient. (Tr.
105.) She further testified that she was not familiar with the requirements of the
administrative code or the advisements that are required before a Medicaid-eligible
patient may be billed for rendered medical services. (Tr. 107-108.) Thus, Wrabel
confirmed that there was no practice in place at Outreach to provide Medicaid-eligible
patients who were to be billed directly with information about their rights under the
administrative code. (Tr. 109.) Under these circumstances, we find the evidence
supports the trial court’s determination that “no one explained to [Barcy] that the
services provided by Outreach and to be provided by Outreach, including the surgery,
were covered Medicaid services and other Medicaid providers may render the services
at no charge to [Barcy].”
With respect to SVCMC, we reiterate that SVCMC was not a party to the
LOP or the Waiver form executed between Barcy and Outreach. In the absence of a
written agreement to interpret, SVCMC’s contention that it complied with Ohio
Adm.Code 5160-1-13.1(C) presents an issue of fact. Here, Woldin testified on behalf
of SVCMC and confirmed that she was “not aware of any documents that were
executed between Mr. Barcy and [SVCMC] concerning payment.” (Tr. 48-49.)
Woldin further testified that because SVCMC understood Barcy was a Medicaid-
eligible patient, SVCMC did not offer Barcy consumer finance education or have him
speak with a financial counselor. (Tr. 54.) In the absence of an open dialogue, Barcy
was not advised of SVCMC’s intentions to assign his medical receivables to Banyan.
(Tr. 60-61.) Nor was Barcy advised in writing of his potential personal liability for the
rendered medical services or that the charges for his medical services would not be
submitted to ODM. (Tr. 60-61.) Finally, Woldin conceded that SVCMC did not
engage in any discussions with Barcy concerning the fact that his medical services
were Medicaid-provider services and that Medicaid would pay for the medical
services. (Tr. 50.) Viewing these facts collectively, we find competent and credible
evidence supporting the trial court’s determination that, “in all instances, SVCMC
failed fully to comply with the requirements of Ohio Adm.Code 5160-1-13.1(C) listed
above.”
Based on the foregoing, we find the trial court’s declaratory judgment
in favor of Barcy is not against the manifest weight of the evidence and is consistent
with this court’s interpretation of Ohio Adm.Code 5160-1-13.1 and the relevant
exhibits submitted in this matter.
The first assignment of error is overruled.
B. Equitable estoppel
In their second assignment of error, appellants argue the trial court
erred by failing to conclude that Barcy was equitably estopped from challenging the
validity and enforceability of the LOP, the Waiver form, and the assignments to
Banyan.
Under the doctrine of equitable estoppel, “‘a representation of past or
existing fact made to a party who relies upon it reasonably may not thereafter be
denied by the party making the representation if permitting the denial would result in
injury or damage to the party who so relies.’” Hortman v. Miamisburg, 110 Ohio St.3d
194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 20, quoting 4 Richard A. Lord, Williston on
Contracts, Section 8:3, at 28-31 (4th Ed.1992). “‘The purpose of equitable estoppel is
to prevent actual or constructive fraud and to promote the ends of justice.’” Doe v.
Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268,
¶ 43, quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145, 555
N.E.2d 630 (1990).
The party claiming estoppel “‘must demonstrate: (1) that the defendant
made a factual misrepresentation; (2) that is misleading; (3) that
induces actual reliance which is reasonable and in good faith; and (4)
which causes detriment to the relying party.’” Clark v. Univ. Hosps. of
Cleveland, 8th Dist. Cuyahoga No. 78854, 2001 Ohio App. LEXIS
3832, 14-15 (Aug. 30, 2001), quoting Livingston v. Diocese of
Cleveland, 126 Ohio App.3d 299, 710 N.E.2d 330 (8th Dist.1998).
N. Frozen Foods, Inc. v. Farro, 2019-Ohio-5344, 138 N.E.3d 1223, ¶ 25 (8th Dist.).
In this case, appellants argued at trial that their decision to assign
certain medical receivables to Banyan in lieu of billing ODM was made, entirely, at
the request of Barcy and his former attorney. The appellants insisted that Barcy
presented them with certain documents representing that he wanted his medical bills
to be paid by Banyan/Redfern, and that Outreach and SVCMC had no duty to interfere
with Barcy’s arrangement with Banyan or otherwise provide him legal advice. In
contrast, Barcy testified at trial that he only agreed to undergo the spinal surgery
under the belief that his medical bills would be submitted to ODM for payment. He
emphasized that he would never knowingly instruct his medical providers to enter
into a payment arrangement that would relinquish his Medicaid rights.
In its finding and facts and conclusions of law, the trial court rejected
appellants’ reliance on the doctrine of equitable estoppel, stating:
Equitable estoppel does not remove SVCMC and Outreach’s obligation
to comply with Ohio Adm.Code 5160-1-13.1.
Defendants have not demonstrated factual misrepresentations or fraud
requiring [Barcy] to be equitably estopped from raising SVCMC and
Outreach’s failure to comply with Ohio Adm.Code 5160-1-13.1 as a
defense to Banyan and Red Fern’s claims.
Finding that [Barcy] is equitably estopped from raising SVCMC and
Outreach’s failure to comply with Ohio Adm.Code 5160-1-13.1 would
not promote the ends of justice.
On appeal, appellants argue the trial court’s application of the doctrine
of equitable estoppel is against the manifest weight of the evidence. Appellants
contend they established a prima facie case of equitable estoppel by presenting
evidence that (1) Barcy and his attorney presented an arrangement to appellants
concerning how Barcy wished to pay for his spinal surgery, (2) appellants were
provided documents evidencing this arrangement that guaranteed appellants a
guaranteed payment from Banyan in exchange for the assignment of medical
receivables to Banyan, and (3) appellants relied on Barcy’s representations, to their
detriment. Again, appellants reiterate their position that because they entered into
the disputed billing arrangement “at the express direction of [Barcy] and his
attorney,” they were not required to warn Barcy of the Medicaid consequences of his
requests. (Emphasis sic.)
Viewing the trial testimony and the incorporated documents in their
entirety, we find competent, credible evidence supports the trial court’s determination
that the doctrine of equitable estoppel was inapplicable in this matter.
To the extent appellants’ position on appeal can be interpreted as an
argument that they should be excused from their obligation to comply with the
express requirements of Ohio Adm.Code 5160-1-13.1(C) because Barcy represented
his intent to relinquish certain rights by signing the LOP and the Waiver form, we are
unpersuaded. As discussed, there is no dispute that by signing the LOP and the
Waiver form, Barcy acknowledged that he was knowingly relinquishing his health
benefits and agreeing to be responsible for payment in full of his medical bills.
However, the administrative code clearly mandates that Medicaid-eligible patients
may not be billed for medical services unless the medical-service provider satisfies
each requirement of Ohio Adm.Code 5160-1-13.1(C). These requirements are in place
to ensure that a Medicaid-eligible patient fully understands the protections afforded
to him or her as it pertains to billing. Given the intent of the administrative code
provision and the competing financial interests of the medical-service providers in
this case, we are unable to conclude that the ends of justice would be served by
relieving appellants of their obligation to explain that the medical service could have
been provided by another provider at no cost to Barcy. Had the advisement under
Ohio Adm.Code 5160-1-13.2(C)(3) been provided in this matter, it would not have
constituted legal advice or an interference with Barcy’s relationship with his attorney.
Rather, the advisement would have constituted compliance with an unambiguous
section of the administrative code. A holding to the contrary would be inconsistent
with the goals of Ohio Adm.Code 5160-1-13.1.
Finally, to the extent appellants’ position on appeal can be interpreted
as an argument that they should be excused from their obligations under Ohio
Adm.Code 5160-1-13.1(C) because Barcy expressly directed them to enter into a
payment arrangement with Banyan, we are equally unpersuaded. Significantly, the
greater weight of the evidence supports the conclusion that Barcy did not make a
factual misrepresentation to Outreach or SVCMC concerning Banyan or his desire to
be billed in accordance with an independent financial arrangement with Banyan.
In reaching this conclusion, we are aware that Wrabel testified that
Outreach billed Banyan in lieu of ODM because “Barcy executed certain documents
indicating that is how he wanted his bills to be paid,” and that “[Outreach] had a
patient of Banyan’s and per the documentation we were supposed to bill Banyan.”
(Tr. 127; 131.) In turn, Woldin testified that SVCMC was notified by Outreach that
Barcy “would be coming for services” and that his medical services would be paid
pursuant to an arrangement with Banyan. (Tr. 63; 66.) While the foregoing
testimony reflects Wrabel and Woldin’s personal belief that they were following the
wishes of Barcy, their testimony contains no direct references to statements made by
Barcy to officials of SVCMC or Outreach.
In addition, we find no information in the documentary evidence to
suggest that Barcy directly instructed SVCMC and Outreach to receive payment from
Banyan in lieu of billing ODM. Here, the unambiguous evidence introduced at trial
demonstrated that Outreach’s relationship with Banyan began well before Barcy was
referred to Dr. Anderson. In particular, Outreach and Banyan entered into the Policy
Agreement in 2014, wherein the parties agreed to a billing structure that is consistent
with the structure employed in this case. Moreover, contrary to the claim that Barcy
directed appellants to accept payment from Banyan, the evidence reflects that the
financial arrangement between appellants and Banyan arose once Banyan contacted
Outreach in a fax message dated June 24, 2015. There is no language in the fax
message to suggest Banyan contacted Outreach at the behest of Barcy. Rather, the
language used in the fax message, including Banyan’s advisement that Barcy was
approved for a minimum-guaranteed reimbursement, was consistent with the parties’
corresponding rights and obligations under the Provider Agreement.
Presumably, Wrabel’s testimony that Outreach’s decision to enter into
an arrangement with Banyan was based on Barcy’s execution of “certain documents”
referred to the LOP and the Waiver form. These documents, however, were provided
to Outreach by Banyan — not Barcy. (Tr. 80; 131.) Moreover, the documents do not
reference Banyan and there is no language in the documents to support Wrabel’s
assertion that Barcy’s signature constituted a directive to accept payment from
Banyan for his medical services. To the contrary, the terms of each agreement only
contemplate a financial arrangement that was exclusively entered into between
Outreach and Barcy. In turn, the subsequent commitment letters and assignment
agreements consist of communications and financial arrangements that are
exclusively between Banyan and appellants. Barcy is not a party to their exchanged
correspondences or a signatory on the relevant assignment agreements. In fact,
representatives of Outreach confirmed that Barcy was not notified of its relationship
with Banyan pursuant to the confidentiality clause of the Provider Agreement. (Tr.
111.) Similarly, Woldin confirmed that Barcy would not have been notified by SVCMC
that his medical receivables were assigned to Banyan. (Tr. 61.) Under the foregoing
circumstances, we find the LOP and the Waiver form fail to establish a link between a
representation made by Barcy and appellants’ decision to enter into a favorable billing
arrangement with Banyan.
This court is aware that Banyan is in the business of solicitation and that
the signature of Barcy’s former attorney was present on the LOP at the time it was
attached to the fax message Banyan sent to Outreach. However, the scope of former
counsel’s authority and nature of his alleged dealings with Banyan were not fully
developed at trial. It is well settled that to succeed on a claim of equitable estoppel,
“[t]he party raising the defense bears the burden of demonstrating its applicability.”
Machnics v. Sloe, 11th Dist. Geauga No. 2004-G-2554, 2005-Ohio-935, ¶ 68, citing
MatchMaker Internatl., Inc. v. Long, 100 Ohio App.3d 406, 408, 654 N.E.2d 161 (9th
Dist.1995). On this record, the weight of the evidence supports the trial court’s
determination that appellants failed to satisfy their respective burden of proof. The
second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR