Zimmerman v. Bowe

[Cite as Zimmerman v. Bowe, 2019-Ohio-2656.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Joel R. Zimmerman, et al. Court of Appeals No. L-18-1200
Appellants Trial Court No. CI0201703587
v.
Carolina E. Bowe, et al. DECISION AND JUDGMENT
Appellees Decided: June 28, 2019
*****
Patrick R. Millican, for appellants.
Sheila A. McKeon and Joseph S. Center, for appellees.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas which denied appellants’ motion to enforce settlement. For the reasons set forth
below, this court affirms the judgment of the trial court.
{¶ 2} On August 3, 2017, and as amended by leave of court on November 30,
2017, plaintiffs Joel R. Zimmerman and Kathleen M. Zimmerman (hereafter, the
“appellants”) filed a complaint in Lucas County Common Pleas Court against defendants
Carolina E. Bowe, Mary L. Bowe, Patrick E. Bowe (hereafter, the “appellees”), and co-
defendant Paramount Insurance Company. Appellants alleged on July 21, 2016, Carolina
E. Bowe negligently drove a vehicle in Monclova Township, Lucas County, Ohio, and
collided with the vehicle driven by Joel R. Zimmerman, causing various damages,
including permanent personal injuries. Appellants further alleged loss of consortium for
Joel R. Zimmerman’s wife, Kathleen M. Zimmerman. Appellants further alleged Mary
L. Bowe and Patrick E. Bowe negligently entrusted the vehicle they owned to their
daughter, Carolina E. Bowe. Appellants further alleged Joel R. Zimmerman’s health care
insurer’s plan administrator, Paramount Insurance Co., had a claim of subrogation to
appellants’ claims. The relief appellants sought included damages “in the amount of at
least Twenty Five Thousand ($25,000.00) Dollars plus interest and costs and all other and
further relief as this Court determines Plaintiffs are entitled to in law or in equity.”
{¶ 3} Following a period of pleadings involving various answers and cross- and
counter-claims by Paramount Insurance Co. and discovery efforts among the parties, the
trial court held a status conference on June 18, 2018. While no transcript of the telephone
conference is in the record, the trial court’s June 20, 2018 journalized order states:
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This matter is before the Court for Telephone Conference. Present
were Counsel for Plaintiff, PATRICK MILLICAN, and Counsel for Bowe
Defendants, SHEILA MCKEON. Parties reported to the Court that they
had entered into a settlement agreement. However, Plaintiffs’ Counsel has
reported they do not intend to sign the Defendants’ Release, requested by
Defendants. It is therefore ORDRED that the parties brief the issue, as to
whether a release is required. Defendant is to file her Brief on or before
July 18, 2018. Plaintiff shall respond to Defendants’ Brief, in accordance
with the Local Rule. It is further ORDERED that Attorney Millican shall
hold in good faith, any settlement check(s) issued to Plaintiffs until further
order of this Court. It is further ORDERED that interest shall not accrue
during the pendency of this case. (Emphasis sic.)
{¶ 4} Prior to any briefing as ordered by the trial court, on June 28, 2018,
appellants filed a motion to enforce the settlement agreement they claimed occurred on
June 5, 2018. According to appellants, the settlement agreement had three parts:
appellees to pay appellants $38,000; appellees to pay Paramount Insurance $2,000; and
“The claims of all parties are to be dismissed with prejudice at Defendants (sic) costs.”
Separately, appellants argued they were entitled to interest accrual on the settlement
funds from June 5, 2018, until paid in full. In the accompanying affidavit by appellants’
attorney, “The Plaintiffs have not received their settlement proceeds as of this date.”
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{¶ 5} Appellees opposed the motion on July 19, 2018, and Paramount Insurance
Co. did not. Appellees argued only some terms of the litigation were settled on June 5,
2018. Appellees argued a settlement occurred only after they waived the requirement of
a release on July 5, 2018: “We will forego a release and rely on the dismissal with
prejudice.” Also on July 5, 2018, appellees delivered to appellants’ attorney two checks:
one for $38,000, and one for $87.60 for interest. Appellees argued they paid interest in
good faith “at 4% per annum for 21 days” plus a slightly greater amount “to allow for
normal turnaround time for process and receipt of the check,” even though the trial
court’s June 20, 2018 order stated no interest would accrue.
{¶ 6} Following appellants’ reply on July 27, 2018, on August 28, 2018, the trial
court journalized its order on appellants’ motion to enforce settlement in which it stated:
The Court has reviewed the relevant pleadings, the record in the
case, the parties’ supporting and opposing arguments, and the applicable
law. Having done so, the Court finds the Defendants have already complied
with the terms of the parties’ settlement by delivering settlement checks to
Plaintiffs’ attorney and to Defendant Paramount Insurance Company’s
attorney on or about July 5, 2018. Therefore, no issues remain for the
Court to resolve, and Plaintiffs’ motion will be denied as set forth in the
following Journal Entry. JOURNAL ENTRY. It is ORDERED that
“Plaintiffs’ Motion to Enforce Settlement,” filed June 28, 2018, is
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DENIED. It is further ORDERED that Plaintiffs are authorized to cash the
$38,000 and $87.60 settlement checks being held by their attorney, Patrick
R. Millican. It is further ORDERD that this case is SETTLED. It is further
ORDERED that Plaintiffs’ Complaint against Defendants * * * and
Defendant Paramount Insurance Company’s Counterclaim against Plaintiffs
and Cross-Claim against Defendants Carolina E. Bowe, Mary L. Bowe, and
Patrick E. Bowe * * * are DISMISSED WITH PREJUDICE, at Defendant
Carolina E. Bowe’s costs. (Emphasis sic.)
{¶ 7} Appellants then filed this appeal setting forth three assignments of error:
I. The trial court erred in finding that the Defendants had already
complied with the terms of the parties’ settlement agreement.
II. The trial court erred in ordering that interest shall not accrue
during the pendency of the case.
III. The trial court erred in denying Plaintiff’s (sic) Motion to
Enforce Settlement.
{¶ 8} We will address appellants’ third assignment of error first, as the challenge
to the trial court’s decision denying appellants’ motion to enforce settlement of the
subject litigation is dispositive to the remaining assignments of error.
{¶ 9} “‘To establish a breach of a settlement agreement, the party alleging the
breach must prove: 1) existence of the [s]ettlement [a]greement, 2) performance by the
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[nonbreaching party], 3) breach by the [other party], [and] 4) resulting damages or loss to
the [nonbreaching party].’” Savoy Hosp., LLC v. 5839 Monroe St. Assocs. LLC, 6th Dist.
Lucas No. L-14-1144, 2015-Ohio-4879, ¶ 26, quoting Raymond J. Schaefer, Inc. v.
Pytlik, 6th Dist. Ottawa No. OT-09-026, 2010-Ohio-4714, ¶ 24. The burden of proof for
each element is by a preponderance of the evidence on the party seeking to enforce the
settlement agreement. Id.
{¶ 10} If appellants fail to meet their burden for any of the elements for a motion
to enforce settlement, then the trial court’s denial of appellants’ motion was proper. The
first element requires appellants to establish by a preponderance of the evidence a
settlement agreement existed with appellees. “[P]reponderance of evidence means the
greater weight of evidence. * * * The greater weight may be infinitesimal, and it is only
necessary that it be sufficient to destroy the equilibrium.” Travelers’ Ins. Co. v. Gath,
118 Ohio St. 257, 261, 160 N.E. 710 (1928).
{¶ 11} We review de novo as a question of law a trial court’s decision on a motion
to enforce settlement of whether a settlement agreement exists as a contract between the
parties to terminate a claim by preventing or ending litigation. Marine Max of Ohio, Inc.
v. Moore, 6th Dist. Ottawa No. OT-15-033, 2016-Ohio-3202, ¶ 14; Savoy Hosp. at ¶ 30.
Settlement agreements are “a particularized form of a contract” and enforceable by either
party. Ohio Turnpike Comm. v. Alexanderian, 6th Dist. Wood No. WD-05-060, 2006-
Ohio-4301, ¶ 11. The law highly favors settlement agreements. Id. Where a settlement
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agreement constitutes a binding contract, the trial court has authority to enforce a
settlement agreement in pending litigation. Savoy Hosp. at ¶ 23.
{¶ 12} In meeting our primary objective of ascertaining the intent of the parties,
we examine the language that they chose to employ. Id. at ¶ 29. If the disputed language
is plain and unambiguous, we do not need to look beyond that language to determine the
rights and obligations of the parties, and interpretation of the agreement is a matter of
law. Id. at ¶ 30.
{¶ 13} If the language is ambiguous such that the language is unclear, indefinite,
and reasonably subject to dual interpretations, we look to whether the ordinary meaning
of common words can be applied unless a manifest absurdity results or some other
meaning is clearly evidenced from the overall agreement. Id. at ¶ 29. Resolution of an
ambiguity to determine the intent of the parties to the agreement is a question of fact. Id.
at ¶ 31. We will not reverse the trial court’s factual determinations so long as some
competent, credible evidence supports it. Id. “Competent evidence is admissible
evidence for the purpose of proving a relevant fact.” Hall v. Hall, 6th Dist. Sandusky No.
S-18-011, 2018-Ohio-4453, ¶ 8. “Credible evidence means evidence found worthy of
being believed.” Id.
{¶ 14} Settlements are preferred to be in writing. Kostelnik v. Helper, 96 Ohio
St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 15. However, oral settlement agreements
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may be enforceable where the words, deeds, acts, and silence of the parties indicate there
is sufficient particularity to form a binding contract. Id.
{¶ 15} A contract must contain the essential elements of offer, acceptance,
contractual capacity, consideration, a manifestation of mutual assent, and legality of
object and of consideration. Id. at ¶ 16. To be enforced, there must be a meeting of the
minds as to the essential elements of the contract. Id. We will not create a new contract
on appeal by finding an intent not clearly and unambiguously found in the language used
by the parties. D & M Painting Corp. v. Perrysburg, 186 Ohio App. 3d 231, 2010-Ohio-
465, 927 N.E.2d 60, ¶ 21 (6th Dist.).
{¶ 16} Appellants argue the three essential terms of settlement with appellees
occurred on June 5, 2018: (1) appellees to pay appellants $38,000; (2) appellees to pay
Paramount Insurance Co. $2,000; and (3) dismissal with prejudice at appellees’ costs.
Appellants acknowledge on July 5, 2018, checks were delivered by appellees totaling
$38,087.60. Appellants argue that payment was due when they reached settlement on
June 5, 2018, and that statutory interest accrued from June 5, 2018, until the trial court’s
August 28, 2018 order when the trial court authorized the July 5, 2018 checks could be
cashed. Appellants calculated the total interest owed pursuant to R.C. 1343.03 was
$349.81, of which appellees paid $87.60, leaving $262.21 unpaid.
{¶ 17} However, in addition to appellants arguing appellees failed to pay sufficient
accrued interest, appellants argued, “At the time that the two settlement checks were
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delivered to Plaintiff’s attorney, no dismissal entry was sent to him or filed with the
court.” It is unclear in the record where the parties agreed as part of settlement terms on
June 5, 2018, it was appellees’ responsibility to prepare and file the dismissal with
prejudice. Where appellees did not file in the record any counterclaims against
appellants, it is unclear what dismissal with prejudice appellees could have filed without
appellants’ cooperation.
{¶ 18} Appellees disagree that the essential terms of a settlement agreement
occurred on June 5, 2018: “June 5, 2018, did not mark the day that settlement was
finalized, but only the date on which certain terms, including the settlement value, but not
all terms, were finalized.” Appellees argue they never reached agreement with appellants
regarding the essential term of when the settlement payment was due and payable.
Appellees argued payment was not due until appellants agreed to sign a release: “no
interest was due on the settlement because there was no settlement while the release issue
was undecided.” Appellees argue a binding settlement agreement was not reached with
appellants until July 5, 2018, when payment was delivered to appellants or, alternatively,
on August 28, 2018, when the trial court ordered the litigation settled.
{¶ 19} We review the entire record for the chronological development of
settlement communications.
{¶ 20} The record shows appellants relied on the June 25, 2018 affidavit of their
attorney accompanying their motion to enforce settlement. Their attorney averred
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“Exhibit 1 and Exhibit 2 contain the negotiations of all parties to this lawsuit of a
settlement agreement and acceptance of the terms and conditions of the settlement
agreement.”
{¶ 21} Exhibit 1 was an email dated May 17, 2018 from appellees’ attorney to
appellants’ attorney stating, “Patrick, based upon our conversation at your client’s
deposition where you reiterated your settlement demand of $40,000, we have a deal. * *
* Please let me know how the settlement check to your client should be made payable.
Please also provide me with a W-9 for your firm if you are to be included on the check.”
{¶ 22} Exhibit 2 was an email chain beginning on May 18, 2018. On that date,
appellees’ attorney emailed appellants’ attorney stating, “Do we have a problem with the
settlement? * * * If we don’t have a settlement, please let me know so I can proceed
accordingly.”
{¶ 23} On May 22, 2018, appellants’ attorney responded to appellees’ attorney, “I
am in the process of contacting my client on your proposal. * * * However, my client
never agreed [the $2,000 for Paramount Insurance Co.] would be deducted from his
$40,000.00 demand. Also I have not seen any proposed dismissal with prejudice order at
defendant Bowe’s costs for the parties to sign.” On that date, appellees’ attorney emailed
appellants’ attorney stating, “Obviously, I disagree with your interpretation of events. * *
* If you want to take the position that your client did not agree to pay Paramount, then
there is clearly no deal. I didn’t send you a proposed dismissal because I have no
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confirmation of a settlement. Any settlement would be with prejudice at defendants’
costs.”
{¶ 24} On June 5, 2018, appellants’ attorney responded to appellees’ attorney,
“My clients accepted the settlement, with a dismissal with prejudice as to all parties, at
defendants’ costs. The check should be made out to Joel Zimmerman and Kathleen
Zimmerman.” On that date, appellees’ attorney emailed appellants’ attorney asking, “Are
you to be included in the check? If so, I will need a W-9.” And appellants’ attorney
responded, “No.”
{¶ 25} Appellees admit “there was no discussion about a release” on June 5, 2018.
{¶ 26} Both parties acknowledge appellees then sent appellants a release, but
neither identifies exactly when. Appellants describe the event as, “Attorney Millican
informed attorney McKeon that the Plaintiffs had not agreed to sign a release – just join
in filing a dismissal with prejudice. Attorney McKeon contacted the court for a
telephone conference to be held regarding the release issue.” Appellees describe the
event as, “Counsel for Bowe provided a release which Zimmerman refused to sign stating
it was not a part of the settlement agreement.”
{¶ 27} On June 18, 2018, the trial court held a telephone conference with the
parties. Appellants describe the telephone conference as “the court was informed of the
settlement, the issue of the Release requested from Plaintiff by the Defendants and that
Plaintiffs were claiming they were entitled to interest on the settlement amount.”
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Appellees describe the telephone conference as “regarding the issue of whether
Zimmerman was required to sign a release,” and the trial court ordering the parties to
“brief whether a release was required with Bowe’s initial brief due July 18, 2018.”
{¶ 28} It is well-settled that a court of record generally speaks only through its
journal. Schenley v. Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625 (1953).
{¶ 29} The trial court’s journalized entry is in the record. On June 20, 2018, the
trial court reported, “Parties reported to the Court that they had entered into a settlement
agreement. However, Plaintiffs’ Counsel has reported they do not intend to sign the
Defendants’ Release, requested by Defendants.” The trial court clearly requested the
parties brief the issue of a release, ordered appellants’ attorney to “hold in good faith, any
settlement check(s) issued to Plaintiffs until further order of this Court,” and “interest
shall not accrue during the pendency of this case.” We find the trial court did not
determine the parties entered into a binding settlement agreement as of June 5, 2018, or
even on June 20, 2018, because of the disputed settlement issues. We find the trial court
was clear and unambiguous in its order “that interest shall not accrue during the pendency
of this case.”
{¶ 30} The next evidence in the record regarding the settlement discussions is an
exhibit attached to appellees’ opposition to the motion to enforce settlement. In a letter
dated July 5, 2018, appellees delivered two checks totaling $38,087.60 to, and payable to,
appellants. The checks were for the principal of the settlement plus an amount for
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interest that appellees disputed they owed. As part of that delivery, appellees stated, “We
will forgo a release and rely on the dismissal with prejudice. I trust this will resolve this
matter.” Appellees argue, “Until that moment, a central and necessary term of the
settlement agreement remained unresolved, that is, whether Zimmerman would sign a
release – an issue sufficiently material that the parties sought court intervention. Bowe’s
written waiver of the issue on July 5, 2018, resolved the final obstacle to settlement.”
{¶ 31} The dispute between the parties is when payment was due and payable on
the settlement and the accrual of statutory interest pursuant to R.C. 1343.03. Appellants
rely heavily on the authority of Hartmann v. Duffey. The Ohio Supreme Court has
determined R.C. 1343.03 is clear and unambiguous. Hartmann v. Duffey, 95 Ohio St. 3d
456, 2002-Ohio-2486, 768 N.E.2d 1170, ¶ 8. R.C. 1343.03(A) “is written in the
conjunctive” and applies where “a settlement that has not been reduced to judgment
clearly falls within the purview of R.C. 1343.03(A) * * *.” Id. In contrast, R.C.
1343.03(B) “is triggered only when a settlement has been reduced to judgment or where
there has been a decree or order. In such a case, interest is computed from the date of the
judgment, decree or order.” Id. at ¶ 9.
{¶ 32} R.C. 1343.03(A) states:
In cases other than those provided for in [R.C. 1343.01 and
1343.02], when money becomes due and payable * * * upon any settlement
between parties, * * *, and upon all judgments, decrees, and orders of any
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judicial tribunal for the payment of money arising out of tortious conduct or
a contract or other transaction, the creditor is entitled to interest at the rate
per annum determined pursuant to [R.C. 5703.47], unless a written contract
provides a different rate of interest in relation to the money that becomes
due and payable, in which case the creditor is entitled to interest at the rate
provided in that contract.
{¶ 33} In contrast, R.C. 1343.03(B) states:
Except as provided in divisions (C) and (D) of this section and
subject to [R.C. 2325.18], interest on a judgment, decree, or order for the
payment of money rendered in a civil action based on tortious conduct or a
contract or other transaction, including, but not limited to a civil action
based on tortious conduct or a contract or other transaction that has been
settled by agreement of the parties, shall be computed from the date the
judgment, decree, or order is rendered to the date on which the money is
paid and shall be at the rate determined pursuant to [R.C. 5703.47] that is in
effect on the date the judgment, decree, or order is rendered. That rate shall
remain in effect until the judgment, decree, or order is satisfied.
{¶ 34} The Ohio Supreme Court subsequently confirmed that Hartmann did not
determine what constitutes the settlement date. Layne v. Progressive Preferred Ins. Co.,
104 Ohio St. 3d 509, 2004-Ohio-6597, 820 N.E.2d 867, ¶ 9. The parties must negotiate
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and agree upon the due and payable date, a certain date on which interest would accrue, if
it is to be different from the date of settlement and incorporated into the written
settlement agreement. Id. at ¶ 13; Bellman v. Am. Internatl. Group, 113 Ohio St. 3d 323,
2007-Ohio-2071, 865 N.E.2d 853, paragraph two of the syllabus. A trial court must
make a factual finding of the date the payment is due and payable only where R.C.
1343.03(A) applies. See Wakeman Eagles Aerie No. 4354, Inc. v. Seitz, 6th Dist. Huron
No. H-13-017, 2014-Ohio-1007, ¶ 2-4.
{¶ 35} To be enforced, there must be a meeting of the minds as to the essential
terms of the settlement agreement. It is clear in the record there is no written settlement
agreement, and the parties did not have a meeting of the minds as to when the settlement
payments by appellees were due and payable to appellants. The trial court’s June 20,
2018 journal entry sought some resolution to the disputed matter by having the parties
brief the issue of a release. The trial court also ordered no interest would accrue during
the litigation, which is further evidence the essential terms of a settlement agreement
were not reached between the parties to trigger R.C. 1343.03(A). Further, the Ohio
Supreme Court acknowledges a reasonable amount of time is expected from when the
last party says, “okay,” and when administrative steps are taken to issue and deliver
payment before interest accrues. Bellman at ¶ 13, citing Layne at ¶ 16 (Pfeifer, J.,
concurring). However, the court in Bellman had a written, dated settlement agreement
from which to state, “Thus, unless otherwise specified, a claimant is entitled to
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postsettlement interest from the date of settlement agreement until the date of payment.
Those who delay in forwarding settlement drafts incur postsettlement interest from the
date of the agreement unless a different due and payable date is specified in the
settlement agreement.” Id. at ¶ 14. That is not the case in this matter.
{¶ 36} Appellants’ motion to enforce settlement was filed before any briefing on
the disputed settlement issue of a release could occur. The trial court eventually denied
appellants’ motion on August 28, 2018, by determining payments were previously
delivered by appellees to appellants, leaving no remaining issues to be resolved. The trial
court was clear and unambiguous in its August 28, 2018 order when it specifically stated
“no issues remain for the Court to resolve.” The trial court then clearly ordered the
litigation was settled on August 28, 2018, with no further payments between the parties,
and dismissing the matter with prejudice. We find the trial court’s factual determinations
in its August 28, 2018 entry were supported by some competent and credible evidence in
the record, and we will not disturb those determinations.
{¶ 37} We do not find the existence of a settlement agreement as a matter of law.
Appellants failed to meet their burden by a preponderance of the evidence of the
existence of a binding settlement agreement. We do not find appellants and appellees
intended to be bound on the disputed issues of a release and interest accrual as part of
their settlement discussions to determine when payment was due and payable. CIG
Toledo LLC v. NZR Retail of Toledo, Inc., 6th Dist. Lucas No. L-17-1282, 2019-Ohio-
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160, ¶ 18. Based on the foregoing, there is no evidence in the record of a settlement
discussion on or before June 5, 2018, on the disputed issues of a release and interest
accrual. Without evidence of the intention of appellants and appellees to be bound on the
disputed issues, the issue of when the settlement payment was due and payable remained
outside of the settlement agreement, and there was no settlement agreement to breach.
“Without the existence of a settlement agreement on [the disputed issues], there was no
breach of a settlement agreement * * * to enforce.” Id. at ¶ 17.
{¶ 38} We find as a matter of law R.C. 1343.03(A) does not apply in this matter
because there was no settlement agreement as to the essential terms. However, R.C.
1343.03(B) may apply in the absence of a settlement agreement because the underlying
litigation was a civil action based on tortious conduct. See Hartmann at ¶ 9 and 15
(Cook, J., dissenting) (when parties fail to expressly agree to a term specifying the date
on which the settlement proceeds become “due and payable,” by default R.C. 1343.03(B)
governs the calculation of interest). Even if R.C. 1343.03(B) applied, we do not find it
provides the relief appellants seek for $262.21 for additional interest. The trial court’s
August 28, 2018 judgment entry was well after appellants acknowledged to the court on
July 5, 2018, they received two checks from appellees, including interest which the trial
court previously ordered “shall not accrue during the pendency of this case.” Pursuant to
R.C. 1343.03(B), no interest is owed prior to the “judgment, decree, or order is rendered”
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as a matter of law. State ex rel. Shimola v. Cleveland, 70 Ohio St. 3d 110, 112, 637
N.E.2d 325 (1994).
{¶ 39} Nevertheless, appellants argued in their third assignment of error the trial
court erred by denying their motion to enforce settlement because the “amount of
judgment” against appellees was unresolved. However, on August 28, 2018, the trial
court ordered appellants were authorized to cash the checks totaling $38,087.60, ordered
the case was settled, and dismissed the litigation with prejudice at appellees’ costs.
Despite appellants’ argument, we find the trial court’s journalized order identified the
“amount of judgment” against appellees.
{¶ 40} We reviewed de novo the entire record and find as a matter of law there
was no settlement agreement between the parties in the absence of a meeting of the minds
as to the essential terms in dispute. We find as a matter of law the trial court did not err
when it denied appellants’ motion to enforce settlement.
{¶ 41} Appellants’ third assignment of error is not well-taken.
{¶ 42} In light of our foregoing decision, appellants’ first and second assignments
of error are moot. App.R. 12(A)(1)(c).
{¶ 43} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
18.
Joel R. Zimmerman, et al.
v. Carolina E. Bowe, et al.
C.A. No. L-18-1200
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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