Lopez v. Quezada

[Cite as Lopez v. Quezada, 2014-Ohio-367.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Maxwell Olavarria Lopez/dba :
Grown Sexy Entertainment,
: Nos. 13AP-389
Plaintiff-Appellee, and
: 13AP-664
v. (C.P.C. No. 12CV-10-12575)
:
Raul Quezada /dba Tipsy Bar & Grill, (REGULAR CALENDAR)
:
Defendant-Appellant.
:
D E C I S I O N
Rendered on February 4, 2014
Soroka & Sidoti, LLC, Roger Soroka, Todd D. Sidoti and
Joshua Bedtelyon, for appellee.
Lane, Alton & Horst LLC, Timothy J. Owens and Scott A.
Fenton, for appellant.
APPEALS from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Raul Quezada, appeals two judgments of the Franklin
County Court of Common Pleas: (1) a judgment that granted defendant-appellee, Maxwell
Olavarria Lopez, default judgment, and (2) a judgment that denied Quezada relief from
the default judgment. For the following reasons, we affirm in part and reverse in part the
default judgment, and we affirm the judgment denying relief from the default judgment.
{¶ 2} On October 3, 2012, Lopez filed suit against Quezada, alleging claims for
breach of contract and fraud in the inducement. The complaint alleged that Lopez owned
and operated a business called "Grown Sexy Entertainment" ("Grown Sexy"), and
Nos. 13AP-389 and 13AP-664 2
Quezada owned and operated a business called "The Tipsy Bar & Grill" ("Tipsy"). On
March 2, 2011, "Lopez, acting on behalf of his company, Grown Sexy Entertainment, did
enter into a written contract with The Tipsy Bar and Grill." (R. 2 at ¶ 5.) Under the
contract, the parties agreed that Grown Sexy would promote events at Tipsy in return for
all the profits generated from the "cover" charge paid by patrons to enter Tipsy on the
nights of the promotions. Although the parties agreed to a three-month contractual term,
Quezada terminated the contract after only one month.
{¶ 3} Lopez directed the Franklin County Clerk of Courts to serve Quezada at
1020 Oakland Park Avenue in Columbus, Ohio, by certified mail. The clerk complied. On
November 13, 2012, the certified mail was returned to the clerk stamped "unclaimed."
Lopez then requested that the clerk serve Quezada at the same address by ordinary mail.
The clerk sent a complaint and summons to Quezada by ordinary mail on November 27,
2012. That mail was not returned to the clerk.
{¶ 4} Quezada did not answer or otherwise respond to the complaint. Thus, on
January 15, 2013, Lopez moved for default judgment. The trial court granted Lopez's
motion and referred the matter to a magistrate for a damages hearing.
{¶ 5} Lopez appeared at the damages hearing and testified. Quezada did not
attend the hearing. After the hearing, the magistrate issued a decision recommending
that the trial court award Lopez $16,000 in compensatory damages and $32,000 in
punitive damages. In a judgment dated April 9, 2013, the trial court adopted the
magistrate's decision.
{¶ 6} On May 9, 2013, Quezada moved for relief from the April 9, 2013 judgment
under Civ.R. 60(B)(1) and (5). Quezada attached to his motion an affidavit in which he
stated that he owned the house located at the address served—1020 Oakland Park
Avenue—but he and his family had moved out of that house in March 2012. Quezada
denied receiving service of the complaint and summons. He claimed that he first learned
of Lopez's lawsuit against him when he received a copy of the magistrate's decision in the
mail at the Oakland Park house.
{¶ 7} On the same day that he moved for relief from the April 9, 2013 judgment,
Quezada filed a notice that he was appealing that judgment. We remanded the case to the
trial court so that it could rule on the motion for relief from judgment. After the remand,
Nos. 13AP-389 and 13AP-664 3
the trial court issued an entry stating that a hearing was necessary to determine the
validity of Quezada's assertion that he was not served. The trial court, therefore,
scheduled a hearing before a magistrate. That hearing never occurred. The parties filed a
stipulation stating that they "stipulate[d] and respectfully request[ed] that Defendant's
Motion for Relief from Judgment, filed May 9, 2013, be decided on the written briefing
submitted by the parties and that the August 5, 2013 hearing scheduled on the Motion be
vacated." (R. 72.)
{¶ 8} The trial court complied with the parties' wishes. On July 3, 2013, the trial
court entered judgment denying Quezada's motion for relief from judgment. Quezada
then appealed that judgment to this court, where we consolidated Quezada's two appeals.
{¶ 9} On appeal from the April 9, and July 3, 2013 judgments, Quezada assigns
the following errors:
1. The trial court erred in its Decision and Entry, dated July 3,
2013, by denying Defendant Raul Quezada's motion for relief
from judgment.
2. The trial court erred in its Decision and Entry, dated
July 3, 2013, by failing to consider Ohio law and the uncon-
troverted evidence presented by Defendant Raul Quezada that
Plaintiff failed to state a claim against Defendant for both
fraud and punitive damages.
3. The trial court erred by granting a default judgment against
Defendant Raul Quezada dba Tipsy Bar & Grill.
4. The trial court erred by granting a default judgment on
Plaintiff's fraud claim as such was not pleaded with
particularity.
5. The trial court erred by granting an award of punitive
damages without any allegations or evidence of ill will, hatred
or gross or egregious misconduct by Defendant Raul Quezada.
{¶ 10} We will begin our analysis with Quezada's third assignment of error. By
that assignment of error, Quezada argues that the trial court erred in granting default
judgment against him because he cannot be liable under the contract. We disagree.
{¶ 11} Under Civ.R. 55(A), when a party against whom judgment is sought fails to
plead or otherwise defend, the opposing party may apply to the court for a default
Nos. 13AP-389 and 13AP-664 4
judgment. An appellate court reviews a trial court's decision to grant or deny a motion for
default judgment for abuse of discretion. Bank of Am., N.A. v. Malone, 10th Dist. No.
11AP-860, 2012-Ohio-3585, ¶ 18; Discover Bank v. Schiefer, 10th Dist. No. 09AP-1178,
2010-Ohio-2980, ¶ 5.
{¶ 12} A default judgment is proper against an unresponsive defendant " 'as
liability has been admitted or "confessed" by the omission of statements refuting the
plaintiff's claims.' " Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn., 28
Ohio St.3d 118, 121 (1986), quoting Reese v. Proppe, 3 Ohio App.3d 103, 105 (8th
Dist.1981). Civ.R. 55 is logically consistent with Civ.R. 8(D), which provides that
"[a]verments in a pleading to which a responsive pleading is required, other than those as
to the amount of damage, are admitted when not denied in the responsive pleading."
Ohio Valley Radiology at 121. Pursuant to Civ.R. 8(D), an unresponsive defendant's
failure to deny the specific allegations in a complaint results in the admission of those
allegations. Shearer v. Creekview Village of Broadview Hts. Homeowners' Assn., Inc.,
8th Dist. No. 94549, 2010-Ohio-5786, ¶ 13; Burdge v. On Guard Security Servs., Inc., 1st
Dist. No. C-050522, 2006-Ohio-2092, ¶ 7. An admission to a factual allegation in a
pleading is equivalent to proof of the fact admitted, so the plaintiff does not have to prove
that allegation with evidence. Id.; Everett v. Cinque, 10th Dist. No. 99AP-1409 (Aug. 31,
2000). Consequently, when a defendant fails to contest the factual allegations raised in
the complaint, default judgment is appropriate because the defendant has admitted to the
facts that establish the plaintiff's claims.
{¶ 13} Importantly, the foregoing presupposes that the plaintiff pleaded sufficient
facts to support its claims. "A plaintiff still needs to allege a valid claim in order to prevail,
even against a neglectful defendant." Beach Body Tanning, Inc. v. Kovach, 8th Dist. No.
85142, 2005-Ohio-2629, ¶ 26; accord Vikoz Ents., LLC v. Wizards of Plastic Recycling,
Inc., 9th Dist. No. 25759, 2011-Ohio-4486, ¶ 7 ("A default judgment cannot lie against a
defendant for claims that were not asserted."). Therefore, where the plaintiff has failed to
state a claim, default judgment on that claim is improper. Id.; Whiteside v. Williams, 12th
Dist. No. 2006-06-021, 2007-Ohio-1100, ¶ 12; Girard v. Leatherworks Partnership, 11th
Dist. No. 2004-T-0010, 2005-Ohio-4779, ¶ 38; Kovach at ¶ 26; Morgan v. Chamberlin,
Nos. 13AP-389 and 13AP-664 5
2d Dist. No. 00CA0017 (Oct. 13, 2000); Ford v. Estate of Tonti, 10th Dist. No. 94APE10-
1488 (June 15, 1995).
{¶ 14} Here, Quezada argues that he cannot be liable under the contract because
he has never done business as "The Tipsy Bar & Grill," he did not sign the contract, and
the person who signed the contract on Tipsy's behalf is not his agent. While Quezada may
have pursued these defenses had he answered the complaint, his failure to answer means
that he has admitted facts contrary to these defenses. By not answering the complaint,
Quezada admitted that he is the owner and operator of Tipsy, and that he and Lopez
entered into the contract at issue. Based on these admissions, Quezada is liable under the
contract. The trial court, therefore, did not err in granting Lopez default judgment on his
claim for breach of contract. Accordingly, we overrule Quezada's third assignment of
error.
{¶ 15} By Quezada's fourth assignment of error, he argues that the trial court erred
in granting default judgment on Lopez's fraudulent inducement claim because it was not
pleaded with particularity. We agree.
{¶ 16} Civ.R. 9(B) provides that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity." To satisfy
this requirement, a pleading must contain allegations of fact that tend to show each and
every element of a cause of action for fraud. Sutton Funding, L.L.C. v. Herres, 188 Ohio
App.3d 686, 2010-Ohio-3645, ¶ 50 (2d Dist.). Moreover, the pleading must include the
time, place, and content of the false representation; the fact represented; the individual
who made the representation; and the nature of what was obtained or given as a
consequence of the fraud. Ford v. Brooks, 10th Dist. No. 11AP-664, 2012-Ohio-943, ¶ 26;
Carter-Jones Lumber Co. v. Denune, 132 Ohio App.3d 430, 433 (10th Dist.1999).
{¶ 17} Failure to specifically plead the facts constituting an alleged fraud results in
a defective claim that cannot withstand a Civ.R. 12(B)(6) motion for failure to state claim.
Brooks at ¶ 26; Herres at ¶ 50. As we stated above, when a plaintiff fails to state a claim, a
court cannot grant default judgment with regard to that alleged claim. Consequently, if
Lopez failed to plead his fraudulent inducement claim with particularity, the trial court
erred in granting default judgment on that claim.
Nos. 13AP-389 and 13AP-664 6
{¶ 18} A claim for fraudulent inducement arises when one person induces another
to enter into an agreement through fraud or misrepresentation. ABM Farms, Inc. v.
Woods, 81 Ohio St.3d 498, 502 (1998). To prove fraud in the inducement, "a plaintiff
must prove that the defendant made a knowing, material misrepresentation with the
intent of inducing the plaintiff's reliance, and that the plaintiff relied upon that
misrepresentation to her detriment." Id.{¶ 19} Here, the complaint contains no allegation that Quezada made any
knowing, material misrepresentations to Lopez with the intent of inducing Lopez's
reliance. Instead, the complaint merely states, "Prior to entering into a written contract,
Defendant did make certain oral representations to Plaintiff, including but not limited to
the potential financial gain of their joint business venture and the anticipated length of
said business venture." (R. 2 at ¶ 12.) While this allegation generally identifies the
content of Quezada's purported representations to Lopez, it does not specify the actual
facts represented or claim that those facts were untrue. There are also no allegations that
Quezada knew that the representations made were false or that Quezada made them with
intent to induce Lopez's reliance. Given the deficiencies in the complaint, we conclude
that Lopez failed to state a claim for fraudulent inducement. The trial court, therefore,
erred in granting Lopez default judgment on that claim. Accordingly, we sustain
Quezada's fourth assignment of error.
{¶ 20} By the fifth assignment of error, Quezada argues that the trial court erred in
awarding Lopez punitive damages when no such damages were demanded as relief in the
complaint. We agree.
{¶ 21} "[A] judgment by default is subject to the limitations of Rule 54(C)." Civ.R.
55(C). According to Civ.R. 54(C):
A judgment by default shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment.
Except as to a party against whom a judgment is entered by
default, every final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if the party
has not demanded the relief in the pleadings.
{¶ 22} Generally, a plaintiff need not specially plead or claim punitive damages.
Kalbfell v. Marc Glassman, Inc., 7th Dist. No. 02 CO 5, 2003-Ohio-3489, ¶ 42, 46;
Lambert v. Shearer, 84 Ohio App.3d 266, 273 (10th Dist.1992). Under the second
Nos. 13AP-389 and 13AP-664 7
sentence of Civ.R. 54(C), even if a plaintiff has not demanded punitive damages in its
complaint, it will receive those damages if it proves entitlement to them. However, the
second sentence does not apply to cases that end in default judgment. "[W]hen a default
judgment is rendered against a party, the only relief that the party seeking the default
judgment may obtain is relief that is requested in the pleadings or relief that is 'in kind' to
the relief requested in the pleadings." State ex rel. DeWine v. A & L Salvage, 7th Dist. No.
11 CO 39, 2013-Ohio-664, ¶ 27. This limitation on default judgment is to ensure that the
complaint notifies the defendant of the potential liability to which it is exposed so that it
may make a rational decision whether to defend the action. Fors v. Beroske, 6th Dist. No.
F-12-001, 2013-Ohio-1079, ¶ 12; White Oak Communities, Inc. v. Russell, 10th Dist. No.
98AP-1563 (Nov. 9, 1999). "The Civil Rules, along with fundamental due process, require
that a defendant not be subjected to an additional, unpled monetary liability as a
consequence of his failure to answer a complaint." Masny v. Vallo, 8th Dist. No. 84983,
2005-Ohio-2178, ¶ 18.
{¶ 23} Ohio courts have not specifically addressed whether a plaintiff may recover
punitive damages in a default judgment when the complaint does not include a demand
for such damages. Federal courts, however, have answered this question negatively,
withholding punitive damages because the defaulting party receives no notice that such
damages might be awarded. Dor Yeshurim, Inc. v. A Torah Infertility Medium of
Exchange, E.D.N.Y. No. CV 10-2837(JFB)(WDW) (Aug. 10, 2011), adopted, (Feb. 10,
2012) ("As the complaint did not put defendant on notice that it was potentially subject to
punitive damages, they may not be assessed as part of the default judgment."); Murphy v.
Islamic Republic of Iran, 740 F.Supp.2d 51, 79-80 (D.D.C.2010) (due to the dictates of
Fed.R.Civ.P. 54(c), "in this default judgment, the Court will only award punitive damages
to those plaintiffs who have demanded them"); Landstar Ranger, Inc. v. Parth Ents., Inc.,
725 F.Supp.2d 916, 923-24 (C.D.Cal.2010), quoting Family Tree Farms, LLC v. Alfa
Quality Produce, Inc., E.D.Cal. No. 1:08-cv-00481-AWI-SMS (Mar. 5, 2009), adopted,
(Apr. 20, 2009) (" '[I]t would be inappropriate for Plaintiff to recover punitive damages in
the instant application because such damages are beyond the scope of the complaint, and
thus no meaningful notice has been given of a demand for punitive damages.' "). As
Civ.R. 54(C) closely tracks the language Fed.R.Civ.P. 54(c), we find these cases persuasive
Nos. 13AP-389 and 13AP-664 8
and adopt their reasoning. See Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353,
¶ 18 (holding that, in interpreting an Ohio rule of civil procedure, "federal case law that
interprets [a similar] federal rule [of civil procedure], while not controlling, is
persuasive").
{¶ 24} Here, Lopez did not demand punitive damages in the complaint. Quezada,
therefore, had no notice that he could be liable for such damages. Consequently, under
Civ.R. 54(C), the April 9, 2013 default judgment could not award Lopez punitive damages.
Accordingly, we sustain Quezada's fifth assignment of error.
{¶ 25} Having addressed the assignments of error challenging the April 9, 2013
default judgment, we pause to summarize our conclusions. We first conclude that the
trial court erred in entering default judgment on Lopez's claim for fraudulent inducement
and in awarding Lopez punitive damages. This conclusion requires the reversal of the
default judgment to the extent that it awarded Lopez $32,000 in punitive damages. We,
however, also conclude that the trial court did not err in granting default judgment on
Lopez's claim for breach of contract. Thus, we affirm the default judgment to the extent
that it awarded Lopez $16,000 in compensatory damages.
{¶ 26} As part of the April 9, 2013 default judgment has survived our review, we
must turn to the remaining assignments of error, which challenge the trial court's denial
of Quezada's Civ.R. 60(B) motion for relief from judgment. Quezada's first assignment of
error contains two arguments: (1) the April 9, 2013 judgment must be vacated because
the trial court lacked personal jurisdiction over Quezada when it entered that judgment,
and (2) relief from judgment is appropriate under Civ.R. 60(B)(1) because Quezada has
demonstrated excusable neglect. We disagree with both arguments.
{¶ 27} By his first argument, Quezada contests the trial court's possession of
personal jurisdiction over him. Personal jurisdiction is the authority of a court to enter a
constitutionally binding judgment on a particular defendant. Green v. Huntley, 10th Dist.
No. 09AP-652, 2010-Ohio-1024, ¶ 12. A defendant must raise the lack of personal
jurisdiction in its first pleading, motion, or appearance. Evans v. Evans, 10th Dist. No.
08AP-398, 2008-Ohio-5695, ¶ 11. If a defendant appears and participates in the case
without objection, it waives any defense based on lack of personal jurisdiction. Id.;
Harris v. Mapp, 10th Dist. No. 05AP-1347, 2006-Ohio-5515, ¶ 11; accord State ex rel.
Nos. 13AP-389 and 13AP-664 9
Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220,
2011-Ohio-5452, ¶ 16 ("[A]ny objection to assumption of personal jurisdiction is waived
by a party's failure to assert a challenge at its first appearance in the case, and such
defendant is considered to have consented to the court's jurisdiction."); Beachler v.
Beachler, 12th Dist. No. CA2006-03-007, 2007-Ohio-1220, ¶ 17 ("If the defendant makes
an appearance in the action, either in person or through his or her attorney, without
raising the defense of lack of personal jurisdiction, then the defendant is considered to
have waived that defense."); NetJets, Inc. v. Binning, 10th Dist. No. 04AP-1257, 2005-
Ohio-3934, ¶ 6 ("Participation in the case can also waive any defect in personal
jurisdiction.").
{¶ 28} Here, Quezada's first action before the trial court was to move for relief from
judgment under Civ.R. 60(B). That motion does not raise the issue of personal
jurisdiction. Although Quezada alleged in his attached affidavit that he did not receive the
complaint and summons, he only used that allegation to support his excusable neglect
argument. Quezada, consequently, waived any challenge to the trial court's exercise of
personal jurisdiction over him.
{¶ 29} Moreover, even if no waiver occurred, Quezada's personal jurisdiction
argument fails. Quezada argues that his sworn statement that he did not receive service of
the complaint entitles him to relief from the April 9, 2013 judgment. Quezada is
incorrect. Quezada's statement only entitled him to a hearing on the question of whether
service was accomplished. Galbreath v. Martin, 10th Dist. No. 11AP-348, 2011-Ohio-
5852, ¶ 10; Green at ¶ 15. The trial court afforded Quezada the opportunity for that
hearing, but he voluntarily rejected it. Consequently, we conclude that the April 9, 2013
default judgment is not void for lack of personal jurisdiction.
{¶ 30} By Quezada's second argument, he contends that the trial court erred in
denying him relief from judgment under Civ.R. 60(B)(1). To prevail on a Civ.R. 60(B)
motion, a party must demonstrate that: (1) it has a meritorious claim or defense to
present if the court grants it relief; (2) it is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1) through (5); and (3) it filed the motion within a reasonable time
and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2), or (3), it filed the
motion not more than one year after the judgment, order, or proceeding was entered or
Nos. 13AP-389 and 13AP-664 10
taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),
paragraph two of the syllabus. If the moving party fails to demonstrate any of these three
requirements, the trial court should overrule the motion. Rose Chevrolet, Inc. v. Adams,
36 Ohio St.3d 17, 20 (1988). A trial court exercises its discretion when ruling on a Civ.R.
60(B) motion, and thus, an appellate court will not disturb such a ruling on appeal absent
an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).
{¶ 31} Here, Quezada sought relief under Civ.R. 60(B)(1), which allows a trial
court to relieve a party from a judgment on a showing of "mistake, inadvertence, surprise
or excusable neglect." The Supreme Court of Ohio has defined "excusable neglect" in the
negative, stating "that the inaction of a defendant is not 'excusable neglect' if it can be
labeled as a 'complete disregard for the judicial system.' " Kay v. Marc Glassman, Inc., 76
Ohio St.3d 18, 20 (1996), quoting GTE Automatic Elec., Inc. at 153. The inquiry into
whether a moving party's inaction constitutes excusable neglect must take into
consideration all the individual facts and circumstances in each case. Colley v. Bazell, 64
Ohio St.2d 243, 249 (1980).
{¶ 32} Quezada argues that his failure to timely answer or otherwise defend was a
result of his failure to receive service of the complaint and summons. According to
Quezada, he did not learn of the instant action until April 25, 2013, when he received a
copy of the magistrate's April 8, 2013 decision in the mail. Thus, Quezada concludes, he
did not participate in the action because he was unaware of it, not because of disregard for
the judicial system.
{¶ 33} The trial court did not believe Quezada's claim of ignorance. The complaint
and summons were mailed to a residence that Quezada owned, although he did not reside
there. Quezada received mail at that address, as demonstrated by his receipt of the
magistrate's decision. The trial court, therefore, concluded that Quezada's failure to
respond to the action did not stem from excusable neglect, but from an intentional
decision to ignore the action. We perceive no abuse of discretion in the trial court's
conclusion. As Quezada failed to prove excusable neglect, the trial court did not err in
denying his motion on that ground.
{¶ 34} In sum, we reject both of the arguments included in Quezada's first
assignment of error. Accordingly, we overrule that assignment of error.
Nos. 13AP-389 and 13AP-664 11
{¶ 35} By his second assignment of error, Quezada argues that the trial court erred
in denying his request for relief under Civ.R. 60(B)(5), which allows relief from judgment
"for any other reason justifying" such relief. Quezada asserts that Lopez's failure to state
any claim in the complaint entitles him to relief under Civ.R. 60(B)(5).
{¶ 36} Our court has rejected failure to state a claim as a Civ.R. 60(B)(5) ground
for relief from judgment. In Taris v. Jordan, 10th Dist. No. 95APE08-1075 (Feb. 20,
1996), we stated, "While the failure of a complaint to state a claim may constitute a
meritorious defense meeting one of the three prongs of GTE Automatic Electric v. ARC
Industries (1976), 47 Ohio St.2d 146, the failure to state a claim upon which relief may be
granted, in itself, generally does not constitute grounds for relief from judgment."
{¶ 37} Moreover, even if failure to state a claim could fit within Civ.R. 60(B)(5),
Quezada would not prevail here. To show entitlement to relief from judgment, Quezada
would have to establish that Lopez failed to state a claim for both fraudulent inducement
and breach of contract. Quezada maintains that Lopez failed to state a claim for breach of
contract because the complaint failed to allege that Quezada entered into a contract with
Lopez. Quezada is incorrect. Such an allegation is in the complaint. Accordingly, we
overrule Quezada's second assignment of error.
{¶ 38} For the foregoing reasons, we overrule the first, second, and third
assignments of error, and we sustain the fourth and fifth assignments of error. We affirm
in part and reverse in part the April 9, 2013 judgment of the Franklin County Court of
Common Pleas, and we affirm the July 3, 2013 judgment of the Franklin County Court of
Common Pleas.
April 9, 2013 judgment affirmed in part and reversed in part;
July 3, 2013 judgment affirmed.
CONNOR and O'GRADY, JJ., concur.