City Rentals, Inc. v. Kesler

[Cite as City Rentals, Inc. v. Kesler, 191 Ohio App.3d 474, 2010-Ohio-6264.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
CITY RENTALS, INC. et al.,
APPELLANTS, CASE NO. 4-10-08
v.
KESLER, OPINION
APPELLEE.
Appeal from Defiance Municipal Court
Trial Court No. CI09-591
Judgment Affirmed
Date of Decision: December 20, 2010
APPEARANCES:
Timothy C. Holtsberry, for appellants.
Elizabeth J. Schuller, for appellee
Case No. 4-10-08
PRESTON, Judge.
{¶ 1} Plaintiffs-appellants, City Rentals, Inc., and E.J. Zeller, Inc.
(collectively, “City Rentals”), appeal the judgment of the Defiance County
Municipal Court dismissing City Rentals’ case against Rodney Kesler. For the
reasons that follow, we affirm.
{¶ 2} In the fall of 2008, City Rentals discovered that its former
bookkeeper, Robin Bauer, had embezzled several hundred thousand dollars from
the company. On July 29, 2009, Bauer was convicted in a separate criminal case
and ordered to pay $200,000 in restitution to City Rentals.
{¶ 3} During the commission of the criminal offense, Bauer forged several
checks drawn on City Rentals’ bank account and issued them to various people
including Kesler. Kesler described Bauer as a neighbor and family friend whom
he had known for over 30 years. Kesler also explained that between 2005 and
2007, he had lent money to Bauer on several occasions in the form of personal
loans. Between June 2007 and July 2008, Bauer repaid some of the money she
owed to Kesler by directly depositing checks into his bank account or making
payments on his commercial and mortgage loans serviced by the bank. Kesler
admitted giving Bauer permission over the phone to make each deposit or
payment.
-2-
Case No. 4-10-08
{¶ 4} However, Kesler stated that unbeknownst to him at the time, Bauer
made these deposits and payments using City Rentals’ checks. Kesler explained
that he never saw or endorsed the checks Bauer deposited into his account, and he
further denied having any knowledge that the checks used by Bauer had been paid
from City Rentals’ funds. Kesler maintained that he became aware of Bauer’s
wrongdoing only when the police questioned him about the checks in the fall of
2008 during their investigation of Bauer. Kesler was never charged in connection
with Bauer’s crime.
{¶ 5} City Rentals claimed that Bauer was not authorized to write the
checks to Kesler. In addition, it is undisputed by the parties that Kesler never
provided any goods or services to City Rentals. After becoming aware of Bauer’s
embezzlement, City Rentals notified Kesler that Bauer had forged the checks
issued to him and demanded that he return the funds. Kesler refused City Rentals’
demands.
{¶ 6} City Rentals subsequently filed this action in the Defiance County
Municipal Court, alleging that Kesler’s retention of the funds constituted unjust
enrichment. Kesler submitted his answer denying City Rentals’ allegation. On
March 10, 2010, City Rentals filed a motion for summary judgment. On April 10,
2010, Kesler also filed a motion for summary judgment. In his motion for
summary judgment, Kesler asserted that the Uniform Commercial Code ( “UCC”),
-3-
Case No. 4-10-08
governed this case because Bauer had paid him with checks, which are negotiable
instruments. Kesler maintained that because he received the checks as payment on
an antecedent debt he was a holder in due course under the relevant provisions of
the UCC and therefore was under no obligation to return the funds to City Rentals.
{¶ 7} The trial court subsequently overruled both parties’ motions for
summary judgment and stated that two genuine issues of material fact remained:
(1) whether Kesler “had no knowledge of [City Rentals’] checks being deposited
into his accounts and (2) the amount of [City Rentals’] funds received by
[Kesler].”
{¶ 8} Prior to trial, the parties stipulated that Bauer deposited $13,420 of
City Rentals’ money into Kesler’s accounts. On May 20, 2010, the court
conducted a bench trial. The only witnesses to testify were Kesler and his wife.
On June 10, 2010, the trial court issued its decision granting judgment in favor of
Kesler and dismissing City Rentals’ case. In rendering its decision, the trial court
concluded that the UCC, and not common-law principles, governed this case. The
trial court further stated that it was “convinced that Defendant Kesler had no
knowledge of Robin Bauer using money embezzled from the Plaintiffs.” The trial
court then concluded:
With the evidence presented to the Court, case law mandates
that Plaintiffs’ case be dismissed, the Defendant having received
payment of an antecedent debt in good faith without knowledge of
the funds having been embezzled by the payer [sic].
-4-
Case No. 4-10-08
This is not to say that Plaintiffs don’t have further recourse as
to the return of their money, as the Defiance County Common Pleas
Court has already ordered the repayment of the money embezzled by
their former employee.
{¶ 9} On June 29, 2010, City Rentals filed its notice of appeal and
submitted the following three assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
The trial court erred as a matter of law denying the plaintiffs’
motion for summary judgment as there were no material facts at
issue and judgment was a matter of law.
{¶ 10} In its first assignment of error, City Rentals argues that the trial court
erred in denying its motion for summary judgment. Specifically, City Rentals
contends that the court erred when it found that genuine issues of material fact
remained that warranted the denial of City Rentals’ motion for summary
judgment.
{¶ 11} Generally, an appellate court reviews a lower court’s decision to
deny summary judgment de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390,
738 N.E.2d 1243. Summary judgment is proper where there is no genuine issue of
material fact, the moving party is entitled to judgment as a matter of law, and
reasonable minds can reach but one conclusion when viewing the evidence in
favor of the nonmoving party, and the conclusion is adverse to the nonmoving
party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.
(1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150. De novo review is independent
-5-
Case No. 4-10-08
and without deference to the trial court’s judgment. Monroeville v. Wheeling &
Lake Erie Ry. Co., 152 Ohio App.3d 24, 2003-Ohio-1420, 786 N.E.2d 504, ¶ 9
See also Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313, 667 N.E.2d
949.
{¶ 12} In order to prove its claim for unjust enrichment City Rentals had to
demonstrate that (1) it conferred a benefit upon Kesler, (2) Kesler had knowledge
of the benefit, and (3) Kesler had retained the benefit under circumstances where it
would be unjust to do so without payment. Hambleton v. R.G. Barry Corp.
(1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298. Specifically, at issue in this
assignment of error is whether a genuine issue of material fact remained as to the
second element—whether Kesler knew that Bauer was depositing City Rentals’
checks into his account. City Rentals maintains that the trial court misconstrued
the knowledge requirement necessary to prove an unjust-enrichment claim when it
found that a genuine issue of material fact remained regarding this element.
However, after reviewing the evidence before the court in favor of Kesler, as the
nonmoving party, we find that the record supported the trial court’s determination
that summary judgment in this case was inappropriate.
{¶ 13} Moreover, even assuming arguendo that we find error in the trial
court’s determination that a genuine issue of material fact remained, the error is
harmless and does not rise to the level of reversible error under these
-6-
Case No. 4-10-08
circumstances. The Supreme Court of Ohio has previously held that “any error by
a trial court in denying a motion for summary judgment is rendered moot or
harmless if a subsequent trial on the same issues raised in the motion demonstrates
that there were genuine issues of material fact supporting a judgment in favor of
the party against whom the motion was made.” Continental Ins. Co. v.
Whittington (1994), 71 Ohio St.3d 150, 156, 642 N.E.2d 615. Here, the trial court
conducted a bench trial on the same issues raised by City Rentals in its motion for
summary judgment. The evidence adduced at trial demonstrated that there were
genuine issues of material fact supporting judgment in favor of Kesler on City
Rentals’ claim for unjust enrichment.
{¶ 14} Accordingly, for the reasons stated above, City Rentals’ first
assignment of error is overruled.
ASSIGNMENT OF ERROR NO. II
The trial court erred in the dismissal of the plaintiffs’ case as
the decision was against the manifest weight of the evidence.
{¶ 15} In its second assignment of error, City Rentals contends that the trial
court’s decision to dismiss its claim for unjust enrichment was against the manifest
weight of the evidence. In raising this assignment of error, City Rentals appears to
incorporate essentially the same argument from the previous assignment of error
that the trial court misconstrued the second element of unjust enrichment.
Specifically, this element requires a showing that Kesler had knowledge of a
-7-
Case No. 4-10-08
benefit conferred upon him by City Rentals. City Rentals maintains that Kesler’s
testimony demonstrated that he developed the requisite knowledge that City
Rentals had conferred a benefit to him when the police informed him of Bauer’s
embezzlement.
{¶ 16} A civil judgment “supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence.” C.E. Morris Co. v.
Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. “[W]hen
reviewing a judgment under a manifest-weight-of-the-evidence standard, a court
has an obligation to presume that the findings of the trier of fact are correct.”
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24,
citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d
1273. The rationale for this presumption is that the trial court is in the best
position to evaluate the evidence by viewing witnesses and observing their
demeanor, voice inflection, and gestures. Seasons Coal Co. v. Cleveland at 80. “A
reviewing court should not reverse a decision simply because it holds a different
opinion concerning the credibility of the witnesses and evidence submitted before
the trial court. A finding of an error in law is a legitimate ground for reversal, but
a difference of opinion on credibility of witnesses and evidence is not.” Id. at 81.
-8-
Case No. 4-10-08
{¶ 17} Although the trial court did not explicitly indicate that it relied on
the UCC in rendering its decision, it is apparent that it followed the UCC doctrine
of holder in due course in making its ruling. In particular, the trial court in its
judgment entry dismissing City Rentals’ case quoted at length from Hinkle v.
Cornwell Quality Tool Co. (1987), 40 Ohio App.3d 162, 532 N.E.2d 772. In
Hinkle, the Ninth District Court of Appeals held that “only bad faith on the part of
a third person receiving stolen money or his failure to pay valuable consideration
therefor, will defeat his title thereto as against the true owner. Money and bank
notes are the exception to the general rule that no one can obtain title to stolen
property. A holder in due course of a stolen negotiable instrument can receive
good title thereto and is subject only to the defense that he was a party to the
theft.” (Citations omitted.) Id. at 166-167.
{¶ 18} Despite City Rentals’ contentions that the common law should
control this case, we believe the trial court correctly determined that the facts of
this case fall under the province of the UCC. The payments at issue were made by
eight checks written on City Rentals’ account. Checks are negotiable instruments
falling within the scope of the UCC, which is codified in R.C. Chapter 13. See
R.C. 1303.02 (stating that R.C. Chapter 13 applies to negotiable instruments) and
1303.03(F)(1) (defining a check as a negotiable instrument that is a draft payable
on demand and drawn on a bank). R.C. 1301.03 further provides:
-9-
Case No. 4-10-08
Unless displaced by the particular provisions of Chapters
1301., 1302., 1303., 1304., 1305., 1307., 1308., 1309., and 1310. of
the Revised Code, the principals of law and equity, including the law
merchant and the law relative to capacity to contract, principal and
agent, estoppel, fraud, misrepresentation, duress, coercion, mistake,
bankruptcy, or other validating or invalidating cause shall
supplement their provisions.
Moreover, “when the Ohio General Assembly has codified the law on a subject,
the statute governs to the exclusion of the common law, unless there is clear
legislative intent that the statutory provisions are merely duplicative. * * * There is
nothing in the Uniform Commercial Code which indicates that the Ohio General
Assembly intended its provisions to be duplicative of the common law it
supplanted.” Baggott v. Piper Aircraft Corp. (S.D.Ohio 1999), 101 F.Supp.2d
556, 561; see Amzee Corp. v. Comerica Bank-Midwest, 10th Dist. No. 01AP-465,
2002-Ohio-3084, ¶ 46 (finding that where a company’s employee forged company
checks to pay her personal charge account at a bank, the company could not sue
the bank on common-law claims for conversion, negligence, and unjust
enrichment because the UCC governed the transaction).
{¶ 19} Having concluded that the provisions of the UCC govern the parties’
rights and responsibilities in this case, we must next determine whether the trial
court’s decision to dismiss City Rentals’ claim for unjust enrichment was
supported by some competent, credible evidence. Implicit in the trial court’s
ruling is its determination that Kesler was a holder in due course and, therefore,
-10-
Case No. 4-10-08
not subject to City Rentals’ claim for unjust enrichment. Generally speaking, a
holder in due course takes an instrument, in this instance a check, free from all
claims and defenses with certain limited exceptions. All Am. Fin. Co. v. Pugh
Shows, Inc. (1987), 30 Ohio St.3d 130, 131-132, 507 N.E.2d 1134. A person who
is not a holder in due course takes the instrument subject to all valid claims,
defenses available in an action on a simple contract, claims in recoupment, and
certain other specified defenses. Id.; see also R.C. 1303.35 (listing the claims and
defenses in recoupment).
{¶ 20} In order to qualify as a holder in due course, a person must meet all
the statutory requirements. Arcanum Natl. Bank v. Hessler (1982), 69 Ohio St.2d
549, 552, 433 N.E.2d 204. “Under UCC 3-302, a holder becomes a holder in due
course if the holder takes the instrument (1) for value, (2) in good faith, (3) and
without notice of any claims or defenses otherwise available to the person
obligated on the instrument or various defects in the instrument.” Dice v. White
Family Cos., Inc., 173 Ohio App.3d 472, 2007-Ohio-5755, 878 N.E.2d 1105, ¶ 27,
citing R.C. 1303.32(A)(2).
{¶ 21} At trial, Kesler testified that he had known Bauer for over 30 years.
Kesler explained that he and Bauer were raised in the same town, went to the same
primary and secondary schools, and had been neighbors at one point. Kesler
-11-
Case No. 4-10-08
testified that his family and Bauer’s family spent time together on several
occasions because their children were roughly the same ages.
{¶ 22} Kesler recalled that the first time Bauer came to him asking to
borrow money, the amount was only $500. Kesler stated that Bauer repaid him in
cash a few weeks later. Kesler then described other specific instances in which he
lent Bauer money for her son’s graduation party and to buy a car for her oldest
daughter. Kesler maintained that in each instance the loan amount was
somewhere between $500 to $1,100. Kesler testified that the largest amount he
lent to Bauer at one time was $5,000, which Bauer needed in order to get a
divorce. Kesler admitted that their arrangement remained informal and was never
reduced to writing.
{¶ 23} Kesler testified that he did not hesitate in lending Bauer money
because he was aware that she was going through a difficult time with her
marriage and, based on the first few instances when he had lent her money, he
trusted that Bauer would promptly repay him. Kesler stated that Bauer had
established a course of conduct in which she would repay him in person with
either cash or a check written on her personal checking account.
{¶ 24} Kesler recalled that after he had lent Bauer some of the larger
amounts of money in the spring of 2007, she became less prompt with repayment.
Kesler described specific instances in which he resorted to calling Bauer asking
-12-
Case No. 4-10-08
for some of his money. The following is an excerpt from Kesler’s testimony at
trial:
Q: And so you had some discussion about, “When are you
going to pay me?”
A: Yes. As a matter of fact, one time, I had to, I got
pretty verbal, that I needed my money. Me and my wife were going
to do something, some other business, and I had to have my money.
And that time she put one of the larger amounts, I don’t remember
the date of the check, but one time she put one of the larger
amounts into the Huntington checking account. Because I went to
the Huntington Bank to make sure that she did, before I left town.
Q: But you would just, after these conversations, direct
her where to put the checks, or where to pay?
A: Right.
Q: You would say, “Just take it down to First Federal and
put it into my checking account.”
A: Yes.
Q: And then—
A: She would call me first, and say, “Hey, I have X
amount,” whatever that, say if it was Eleven Hundred Dollars, “I
have the Eleven Hundred Dollars, Rodney,” and, “What do you
want me to do with this?”
Q: Okay.
A: Because sometimes, I wanted my money right then,
and a couple of times I drove back to Defiance, you know, prior to
all this. And then I said, “Hey, just run it up to the bank and put it
into my checking account.” My name is the only one on the
checking account, so at First Federal, and that is when it first
started, her going and putting something into my account.
-13-
Case No. 4-10-08
Q: And then, the times you would run back into Defiance
to get the money, would she have paid you cash?
A: Yes. That or, there were a couple times when she gave
me a personal check from her account.
Q: And then you’d check online?
A: Yes.
Q: Your online banking statement doesn’t have any
images, imaging, of the checks that are deposited, or anything of
that nature?
A: No, the only images it has are just my personal checks
that come back to the bank.
Q: Okay, just opposed to sending you a bank statement,
then, you can get online and see your checks that cleared?
A: Yes.
Q: So you can reconcile your checkbook?
A: Right. Correct.
Q: But as far as deposits, it wouldn’t show you a deposit
slip and, like, a list of checks or currency that was deposited?
A: No, it just had, just a deposit, and like a slash mark,
and then a date, and an amount. I believe it was about like the
statements. That statement there has—
Q: Okay, So how would you keep track of the loan
amounts, then?
A: Like I said, if I loaned her Five Hundred Dollars, for
instance, she pulled back in my driveway and paid me Five
Hundred Dollars back. So then she didn’t owe me anything
-14-
Case No. 4-10-08
anymore, of course. You know, the next time she wanted to borrow
some money, say it was one of the Eleven Hundred Dollar ones, she
would come, and I would loan her the money, and within a few
weeks, or sometimes a month, she would pay me back. Like I said
I never got, or let it get out of control, or it never went a large
amount of time, or it never went over the amount of the largest that
we had loaned her.
Q: And that was the Five Thousand Dollars?
A: The Five Thousand Dollars.
{¶ 25} Kesler maintained that when he was able to meet with Bauer she
would pay him in cash or with a personal check. It was only on the occasions that
he did not personally meet with Bauer that she repaid him by directly depositing
the checks into his accounts.
{¶ 26} Kesler revealed that he was notified of Bauer’s wrongdoing several
months after Bauer’s last repayment when the police questioned him during their
investigation of Bauer. Kesler denied having any knowledge that Bauer had used
City Rentals’ checks to make repayment to him.
{¶ 27} Kesler’s wife, Melinda, was the only other witness to testify.
Melinda described her relationship with Bauer as “just friendly neighbors.”
Melinda stated that she knew that Kesler had lent money to Bauer. Melinda
expressed empathy for Bauer’s poor marital situation and stated that she felt sorry
for Bauer’s children. Melinda further stated that she trusted that Bauer would
repay them.
-15-
Case No. 4-10-08
{¶ 28} Based on the testimony elicited at trial, we find that the judgment of
the trial court was supported by some competent, credible evidence going to all of
the essential elements in this case. In reviewing the trial court’s application of the
holder-in-due-course doctrine to this case, we agree with the trial court that Kesler
paid value for the checks in question. Bauer deposited the checks into Kesler’s
account as repayment for an existing debt she owed to him. R.C. 1303.33(A)(3)
provides that “[a]n instrument is issued or transferred for value if * * * [t]he
instrument is issued or transferred as payment of, or as security for, an antecedent
claim against any person, whether or not the claim is due.”
{¶ 29} Regarding the second holder-in-due-course element of good faith,
City Rentals presented no evidence that Kesler lacked good faith when he received
the checks. See Buckeye Check Cashing, Inc., v. Camp, 159 Ohio App.3d 784,
2005-Ohio-926, 825 N.E.2d 644 (stating that good faith is defined as the absence
of bad faith or dishonesty with respect to a party’s conduct in a commercial
transaction). On the contrary, Kesler’s testimony indicates that he was completely
unaware that Bauer used City Rentals’ checks to make the repayments that she
deposited into his accounts.
{¶ 30} We also find that the evidence supported the trial court’s decision
with respect to the third holder-in-due-course element of notice. In order to
prevent one from taking as a holder in due course, notice of claims or defenses of
-16-
Case No. 4-10-08
the person obligated on the instrument must be acquired at the time of the taking
or the time the instrument is transferred and not subsequently arising thereafter.
See 71 Ohio Jurisprudence 3d (2010), Negotiable Instruments and Other
Commercial Paper, Section 322. Kesler was consistent in his adamant denial of
having any knowledge that Bauer forged the checks she deposited into his
accounts at the time she made the repayments. Furthermore, City Rentals
presented no evidence at trial to rebut Kesler’s testimony. After reviewing the
record before us it is evident that City Rentals simply failed to present any
evidence to overcome Kesler’s defense that he was a holder in due course under
these circumstances.
{¶ 31} Moreover, although not mentioned by the parties, the UCC expressly
addresses the liability of the employer in a situation, such as this one, in which an
employee entrusted with the responsibility of issuing checks on behalf of the
employer has committed fraud. R.C. 1303.47 (employer’s responsibility for
fraudulent endorsement by employee). This particular section adopts the principle
that the risk of loss for certain fraudulent conduct by employees who are entrusted
with the responsibility with respect to checks should fall on the employer rather
than on innocent third parties. The rationale for this position is that “the employer
is in a far better position to avoid the loss by care in choosing employees, in
supervising them, and in adopting other measures to prevent * * * fraud in the
-17-
Case No. 4-10-08
issuance of instruments in the name of the employer.” Official comment to UCC
Section 3-405; see R.C. 1303.47. Notwithstanding the above, we acknowledge
that Bauer was not a party to this case and that no evidence was presented at trial
regarding Bauer’s employment with City Rentals other than the fact that she was
employed as a bookkeeper for the company.
{¶ 32} Nevertheless, for the reasons discussed above, we find no error in
the trial court’s decision to dismiss City Rentals’ case, having found that its
judgment was supported by some competent, credible evidence. Accordingly,
City Rentals’ second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. III
The trial court erred as a matter of law by applying the law of
conversion in the dismissal of the plaintiffs’ case when the
plaintiffs’ complaint and entire case prayed for relief under the
theory of unjust enrichment.
{¶ 33} In its third assignment of error, City Rentals claims that the trial
court erroneously applied the law of conversion rather the law of unjust
enrichment when it decided to dismiss its case. In raising this assignment of error,
City Rentals’ obfuscates the trial court’s ruling. As previously stated, the trial
court relied on the UCC holder-in-due-course doctrine when it dismissed City
Rentals’ case. A central tenent of the holder-in-due-course doctrine is that the
holder in due-course takes the instrument free of claims or defenses made by the
obligor, in this case City Rentals.
-18-
Case No. 4-10-08
{¶ 34} Although the trial court in its judgment entry relied on case law
shielding a holder in due course from liability on a claim for conversion, the same
result is contemplated by the UCC regarding an obligor’s claim for unjust
enrichment against a holder in due-course. Once a person has demonstrated
entitlement to holder-in-due-course status, he is immunized from most of the
obligor’s claims and defenses, including a claim for unjust enrichment. See Dice
v. White Family Cos., Inc., 173 Ohio App.3d 472, 2007-Ohio-5755, 878 N.E.2d
1105, ¶ 61 (stating that “[t]o permit a claim for unjust enrichment when the UCC
precludes liability is contrary to the ‘delicately balanced statutory scheme’ of the
UCC”). Accordingly, the trial court’s reliance on a case addressing an obligor’s
claim for conversion is inconsequential to the outcome of this case because the
same analysis is used when addressing an obligor’s claim for unjust enrichment
against a holder in due course. As a result, we find no error in the trial court’s
decision to dismiss City Rentals’ case on this basis.
{¶ 35} Finally, in upholding the judgment of the trial court we are reminded
of the following. “[T]he Uniform Commercial Code is a delicately balanced
statutory scheme designed, in principle, to ultimately shift the loss occasioned by
negotiation of a forged instrument to the party bearing the responsibility for the
loss. Ideally, the thief is held accountable. The unfortunate reality is that the loss
is often shifted to the innocent party whose conduct or relationship with the forger
-19-
Case No. 4-10-08
most facilitated the risk of loss.” Ed Stinn Chevrolet, Inc. v. Natl. City Bank
(1986), 28 Ohio St.3d 221, 226, 503 N.E.2d 524.
{¶ 36} With this in mind, we overrule City Rentals’ third assignment of
error.
{¶ 37} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
WILLAMOWSKI, P.J., concurs.
ROGERS, J., concurs in judgment only.
-20-