Deutsche Bank Natl. Trust Co. v. Hansen

[Cite as Deutsche Bank Natl. Trust Co. v. Hansen, 2011-Ohio-1223.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

: JUDGES:
DEUTSCHE BANK NATIONAL : Julie A. Edwards, P.J.
TRUST COMPANY, AS TRUSTEE : W. Scott Gwin, J.
: Sheila G. Farmer, J.
Plaintiff-Appellee :
: Case No. 2010 CA 00001
-vs- :
:
: OPINION
CHRISTINA HANSEN, et al.,

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County
Court of Common Pleas Case No.
CV-08 CV 1592

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 10, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

ERIC T. DEIGHTON BENJAMIN D. HORNE
BRIAN L. BLY PEGGY P. LEE
Carlisle, McNellie, Rini, LUKE FEENEY
Kramer & Ulrich Co., LPA Southeastern Ohio Legal Services
24755 Chagrin Blvd., Suite 200 123 S. Broad Street, Suite 234
Cleveland, Ohio 44113 Lancaster, Ohio 43130
[Cite as Deutsche Bank Natl. Trust Co. v. Hansen, 2011-Ohio-1223.]

Edwards, P.J.

{¶1} Appellants, Christina and Rodney Hansen, appeal a summary judgment of

the Fairfield County Common Pleas Court on appellee Deutsche Bank National Trust

Company’s complaint for foreclosure.

STATEMENT OF FACTS AND CASE

{¶2} Appellee filed the instant action on December 30, 2008, alleging that

appellants were in default of payment on a promissory note and mortgage, and

demanding judgment on the note and foreclosure of the real estate described in the

mortgage. On January 7, 2009, appellee filed an amended notice of the filing of the

mortgage assignment. Attached to the notice is an exhibit assigning the mortgage from

Argent Mortgage Company LLC to appellee, together with the note and indebtedness

which the mortgage secured. The mortgage assignment was executed December 22,

2008.

{¶3} Appellants filed an answer, claiming that appellee was not the holder of

the note and did not have standing to bring the instant action because appellee is not

the real party in interest.

{¶4} Appellee filed a motion for summary judgment on August 17, 2009, and

supported it with the affidavit of Tonya Hopkins, Assistant Secretary and Vice President

of American Home Mortgage Servicing, Inc., appellee’s loan servicing contractor.

Hopkins averred that payment had not been made on the loan since July 1, 2008. The

affidavit stated that the note and mortgage had been assigned to appellee, the note has

been accelerated, and the principal balance of $112,491.66 plus interest at the rate of

10.875% per annum is due.
Fairfield County App. Case No. 2010 CA 00001 3

{¶5} Appellants filed a motion to strike the affidavit and a response to the

motion for summary judgment. Appellants argued that the affidavit was not based on

personal knowledge, as evidenced by the deposition testimony of Ms. Hopkins. In

addition to the deposition of Ms. Hopkins, appellants attached the affidavit of appellant

Christina Hansen to their response. In this affidavit, Christina Hansen admits the

existence of a delinquency but expresses her belief that she could in time pay off the

delinquency. The trial court overruled the motion to strike and granted appellee’s

motion for summary judgment. Appellants assign two errors:

{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

STRIKE PLAINTIFF/APPELLEE’S AFFIDAVIT IN SUPPORT OF SUMMARY

JUDGMENT.

{¶7} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE THERE WAS A GENUINE ISSUE AS TO WHETHER THE TRUST WAS

THE REAL PARTY IN INTEREST AND HAD STANDING TO ENFORCE THE NOTE.”

{¶8} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must

refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary judgment shall
Fairfield County App. Case No. 2010 CA 00001 4

not be rendered unless it appears from the evidence or stipulation, and only from the

evidence or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed most

strongly in the party’s favor.”

{¶9} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.

Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

I

{¶10} In their first assignment of error, appellants argue the court erred in failing

to strike the affidavit of Tonya Hopkins.

{¶11} Appellants first argue that the affidavit was not based on personal

knowledge. Appellants argue that while her affidavit avers that it is based on personal

knowledge, her deposition testimony reflects that she did not see the original mortgage

and note, she did not have personal knowledge of whether the option was exercised,
Fairfield County App. Case No. 2010 CA 00001 5

and while she saw a screen shot of the balance due, she could not explain how that

figure was arrived at by appellee.

{¶12} Pursuant to Civ.R. 56(C), only certain evidence and stipulations, as set

forth in that section, may be considered by the court when deciding a motion for

summary judgment. Specifically, the court is only to consider “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence and written stipulations of fact.” Civ.R. 56(C). However, the trial court may

consider a type of document not expressly mentioned in Civ.R. 56(C) if such document

is “accompanied by a personal certification that [it is] genuine or [is] incorporated by

reference in a properly framed affidavit pursuant to Civ.R. 56(E).” Modon v. Cleveland

(Dec. 22, 1999), 9th Dist. No. 2945-M, at 5, citing Bowmer v. Dettelbach (1996), 109

Ohio App.3d 680, 684, 672 N.E.2d 1081.

{¶13} Civ.R. 56(E) provides that an affidavit must “be made on personal

knowledge, [and] set forth such facts as would be admissible in evidence.” Civ.R. 56(E).

An affiant's mere assertion that he has personal knowledge of the facts asserted in an

affidavit can satisfy the personal knowledge requirement of Civ.R. 56(E). See Bank One

v. Swartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, at ¶ 14. A mere assertion of

personal knowledge satisfies Civ.R. 56(E) if the nature of the facts in the affidavit

combined with the identity of the affiant creates a reasonable inference that the affiant

has personal knowledge of the facts in the affidavit. Id. This Court has recognized that

personal knowledge may be inferred from the contents of an affidavit. LaSalle Bank

National Association v. Street, Licking App. No. 08CA60, 2009-Ohio-1855, ¶22.
Fairfield County App. Case No. 2010 CA 00001 6

{¶14} Appellants do not challenge that on its face, the affidavit purports to be

based on personal knowledge. Appellants argue that based on Hopkins’ testimony at

her later deposition, her affidavit was not based on personal knowledge. We reject

appellants’ argument.

{¶15} First, as to appellants’ claim that Hopkins did not see the original

mortgage and note and therefore did not have personal knowledge that it was a true

copy of the original, she testified in her deposition that the original was held in

appellee’s vault, and she had verified the original with the custodian. Tr. 30. She

testified that in accordance with their business practice, she sent a request to the

custodian to verify that appellee had the original note and mortgage in the vault, and if

appellee has the original, the custodian sends back a copy. Tr. 31. She further testified

that she knows if the copy she receives is a copy of a copy rather than a copy of the

original by the manner in which it is stamped when she receives it. Tr. 31. Her

testimony is sufficient to demonstrate that based on the business practices of her

organization, she has personal knowledge of whether the copy she received is a true

and accurate copy of the original, regardless of the fact that she did not personally see

the original, make the copy or watch the copy being made.

{¶16} Appellants also argue that she did not have personal knowledge that the

note had been accelerated. Initially, Hopkins testified that she did not know if she had

seen the Notice of Acceleration. Tr. 40. However, later she testified that she had seen

a Notice of Acceleration regarding this case. Tr. 43.

{¶17} Finally, appellants argue Hopkins did not have personal knowledge as to

how appellee arrived at the balance due as viewed on the screen shot. Appellants also
Fairfield County App. Case No. 2010 CA 00001 7

argue the screen shot is hearsay, and did not meet the exception for a business record

because there is no evidence of its origins or the circumstances surrounding its

existence.

{¶18} In her affidavit, Hopkins stated that the amount due and owing is

$112,491.66, plus interest at the rate of 10.875% per annum. Appellants argue that the

evidence is hearsay because at her deposition, she did not know who entered the

information into the computer to generate the number, nor did she know how such

information was generated.

{¶19} Evid. R. 803(6) governs the admissibility of business records as an

exception to the hearsay rule:

{¶20} “(6) Records of regularly conducted activity. A memorandum, report,

record, or data compilation, in any form, of acts, events, or conditions, made at or near

the time by, or from information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the regular practice of

that business activity to make the memorandum, report, record, or data compilation, all

as shown by the testimony of the custodian or other qualified witness or as provided by

Rule 901(B)(10), unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness. The term ‘business’ as used in this

paragraph includes business, institution, association, profession, occupation, and calling

of every kind, whether or not conducted for profit.”

{¶21} The rationale behind Evid.R. 803(6) is that if information is sufficiently

trustworthy that a business is willing to rely on it in making business decisions, the

courts should be willing to as well. See Staff Note to Evid.R. 803(6).
Fairfield County App. Case No. 2010 CA 00001 8

{¶22} “To qualify for admission under Rule 803(6), a business record must

manifest four essential elements: (i) the record must be one regularly recorded in a

regularly conducted activity; (ii) it must have been entered by a person with knowledge

of the act, event or condition; (iii) it must have been recorded at or near the time of the

transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by

some ‘other qualified witness.’ State v. Davis, 116 Ohio St.3d 404, 880 N.E.2d 31,

2008-Ohio-2, ¶ 171, quoting Weissenberger, Ohio Evidence Treatise (2007) 600,

Section 803.73. See also McCormick v. Mirrored Image, Inc. (1982), 7 Ohio App.3d

232, 233, 454 N.E.2d 1363.”

{¶23} The phrase “other qualified witness” should be broadly interpreted. See

State v. Patton (Mar. 5, 1992), Allen App. No. 1-91-12, unreported, citing 1

Weissenberger's Ohio Evidence (1985) 75, Section 803.79. Further, it is not necessary

that the witness have firsthand knowledge of the transaction giving rise to the record.

State v. Vrona (1988), 47 Ohio App.3d 145, 547 N.E.2d 1189, paragraph two of the

syllabus. “Rather, it must be demonstrated that: the witness is sufficiently familiar with

the operation of the business and with the circumstances of the record's preparation,

maintenance and retrieval, that he can reasonably testify on the basis of this knowledge

that the record is what it purports to be, and that it was made in the ordinary course of

business consistent with the elements of Rule 803(6).” Patton, supra, quoting

Weissenberger at 76.

{¶24} Even after the above elements are established, however, a business

record may be excluded from evidence if ‘the source of information or the method or
Fairfield County App. Case No. 2010 CA 00001 9

circumstances of preparation indicate lack of trustworthiness.’ Davis at ¶ 171, quoting

Evid.R. 803(6).

{¶25} Before application of Evid.R. 803(6), and prior to admission of a business

record, the record must also be properly identified or authenticated, “by evidence

sufficient to support a finding that the matter in question is what its proponent claims.”

Evid.R. 901(A). See, also, State v. Bell, Clermont App. No. CA2008-05-044, 2009-Ohio-

2335, ¶ 17; Hirtzinger at 49, 705 N.E.2d 395. “The provisions of Evid.R. 901(A) require

only that a proponent of a document produce “evidence sufficient to support a finding

that the matter in question” is what the proponent claims it to be. (Emphasis sic.) State

v. Easter (1991), 75 Ohio App.3d 22, 25, 598 N.E.2d 845. “This low threshold standard

does not require conclusive proof of authenticity, but only sufficient foundational

evidence for the trier of fact to conclude that the document is what its proponent claims

it to be.” (Emphasis sic.) Id., citing 1 Weissenberger, Ohio Evidence (1991) 4-5, Section

901.2; Giannelli, Ohio Evidence Manual (1990) 6, Section 901.01.

{¶26} In order to properly authenticate business records, a witness must “testify

as to the regularity and reliability of the business activity involved in the creation of the

record.” Hirtzinger at 49, 705 N.E.2d 395. Firsthand knowledge of the transaction is not

required by the witness providing the foundation; however “ ‘it must be demonstrated

that the witness is sufficiently familiar with the operation of the business and with the

circumstances of the record's preparation, maintenance and retrieval, that he can

reasonably testify on the basis of this knowledge that the record is what it purports to

be, and that it was made in the ordinary course of business consistent with the elements

of Rule 803(6).’ ” State v. Vrona (1988), 47 Ohio App.3d 145, 148, 547 N.E.2d 1189,
Fairfield County App. Case No. 2010 CA 00001 10

quoting 1 Weissenberger's Ohio Evidence (1985) 75-76 Section 803.79. See, also,

Moore at ¶ 18.

{¶27} In Soliday v. Pittenger, Richland App. No. 10-CA-17, 2010-Ohio-4861, this

Court affirmed a trial court’s exclusion of an Excel spreadsheet. We concluded that the

proponents of the spreadsheet did not present sufficient evidence to meet the business

records exception to the hearsay rule where no one testified as to who prepared the

spreadsheet, what that person’s job duties were, when the record was prepared, or how

the information was collected and compiled. Id. at ¶41.

{¶28} Likewise, in the instant case, appellant’s did not present evidence to

qualify the screen shot under the business record exception to the hearsay rule.

Hopkins testified in her deposition that she did not know who entered the information

into the computer to generate the amount owed, nor did she know how such information

was collected and compiled. The court erred in admitting the screen shot as evidence

of the amount due on the account.

{¶29} Finally, appellants argue that the statement in Hopkins affidavit that

appellee is the holder in due course of the note and mortgage is a legal conclusion

which she is not qualified to make.

{¶30} Since an affidavit’s purpose is to demonstrate that there is a genuine issue

of material fact requiring a need for trial, the affidavit must set forth specific facts and

not merely legal conclusions or opinions. Smythy v. Miguel (Oct. 11, 1990), Cuyahoga

App. No. 59274, unreported. While the paragraph in the affidavit drew an impermissible

legal conclusion that appellee was the holder in due course of the note and mortgage,

we find no prejudicial error in the court’s failure to strike this portion of the affidavit.
Fairfield County App. Case No. 2010 CA 00001 11

There was sufficient evidence presented independent of this statement from which the

court could conclude that appellee was the holder in due course, as discussed in

Assignment of error II.

{¶31} The first assignment of error is overruled in part and sustained in part.

II

{¶32} Appellants argue that the court erred in finding that appellee was the real

party in interest and therefore had standing to bring the instant action. Appellants base

this argument on the 1,927 page Pooling and Servicing Agreement, which they allege is

available on the Security and Exchange Commission web site, that governs Asset-

Backed Pass-Through Certificates, Series 2005-W3 relating to the transfer of their

Homeowner’s Loan into the trust with Deutsche Bank. Appellants argue that the

Pooling and Servicing Agreement requires evidence showing how the loan in question

was transferred from Argent Mortgage Company, LLC to trustee Deutsche Bank.

Appellants, in their brief, state that there is no evidence establishing such conveyance.

Therefore, appellants argue, the Homeowner’s Note was not included in the bundle

called Series 2005-W3 held in trust by Deutsche Bank and Deutsche Bank is not the

real party interest.

{¶33} Pursuant to Civ. R. 17(A), the real party of interest shall prosecute the

claim:

{¶34} “Every action shall be prosecuted in the name of the real party in interest.

An executor, administrator, guardian, bailee, trustee of an express trust, a party with

whom or in whose name a contract has been made for the benefit of another, or a party

authorized by statute may sue in his name as such representative without joining with
Fairfield County App. Case No. 2010 CA 00001 12

him the party for whose benefit the action is brought. When a statute of this state so

provides, an action for the use or benefit of another shall be brought in the name of this

state. No action shall be dismissed on the ground that it is not prosecuted in the name

of the real party in interest until a reasonable time has been allowed after objection for

ratification of commencement of the action by, or joinder or substitution of, the real party

in interest. Such ratification, joinder, or substitution shall have the same effect as if the

action had been commenced in the name of the real party in interest.”

{¶35} R.C. 1303.31 provides:

{¶36} “(A) “Person entitled to enforce” an instrument means any of the following

persons:

{¶37} “(1) The holder of the instrument;

{¶38} “(2) A nonholder in possession of the instrument who has the rights of a

holder;

{¶39} “(3) A person not in possession of the instrument who is entitled to enforce

the instrument pursuant to section 1303.38 or division (D) of section 1303.58 of the

Revised Code.

{¶40} “(B) A person may be a “person entitled to enforce” the instrument even

though the person is not the owner of the instrument or is in wrongful possession of the

instrument.”

{¶41} The mortgage assignment in the instant case states that Argent Mortgage

Company, LLC “sells, transfers and assigns” to appellee all its rights and interest in

appellant’s mortgage. The assignment further conveys the note of indebtedness

referred to in the mortgage. The assignment states that appellee holds the mortgage as
Fairfield County App. Case No. 2010 CA 00001 13

trustee, in trust for the registered holders of Argent Securities Inc., Asset-Backed Pass-

Through Certificates, Series 2005-W3. Appellants appear to argue that there is no

proof that the Note underlying the mortgage was properly transferred into the pooled

trust Series 2005-W3 and that appellee has not established a complete chain of title

transferring the note to appellee.

{¶42} This Court rejected a similar argument concerning an incomplete chain of

title in Bank of New York v. Dobbs, Knox App. No. 2009-CA-000002, 2009-Ohio-4742:

{¶43} “Appellants argue the chain of title is incomplete because the record does

not contain any evidence Countrywide assigned the note to MERS. Courts have

generally stated the debt is the promissory note, and the mortgage is the only evidence

of the debt and the security offered. In re: Perrysburg Marketplace Co. (1997) 208 B.R.

148, 34 UCC Rep. Serv. 2d 731, at 159, citations deleted.

{¶44} “Section 5.4 of the Restatement III, Property (Mortgages) discusses

transfers of the obligations secured by a mortgage and transfers of the mortgage itself

by the original mortgagee to a successor, or a chain of successors. Such transfers

occur in what is commonly termed the “secondary mortgage market”, as distinct from

the “primary mortgage market” in which the mortgage loans are originated by lenders

and executed by borrowers.

{¶45} “The Restatement asserts as its essential premise is that it is nearly

always sensible to keep the mortgage and the right of enforcement of the obligation it

secures in the hands of the same party. This is because in a practical sense separating

the mortgage from the underlying obligation destroys the efficacy of the mortgage, and

the note becomes unsecured. The Restatement concedes on rare occasions a
Fairfield County App. Case No. 2010 CA 00001 14

mortgagee will disassociate the obligation from the mortgage, but courts should reach

this result only upon evidence that the parties to the transfer agreed. Far more

commonly, the intent is to keep the rights combined, and ideally the parties would do so

explicitly. The Restatement suggests that with fair frequency mortgagees fail to

document their transfers so carefully. Thus, the Restatement proposes that transfer of

the obligation also transfers the mortgage and vice versa. Section 5.4 (b) suggests

“Except as otherwise required by the Uniform Commercial Code, a transfer of a

mortgage also transfers the obligation the mortgage secures unless the parties to the

transfer agree otherwise.” Thus, the obligation follows the mortgage if the record

indicates the parties so intended.

{¶46} “In Ohio it has been held that transfer of the note implies transfer of the

mortgage. In Lasalle Bank National Association v. Street, Licking App. No. 08CA60,

2009-Ohio-1855, this Court stated:

{¶47} “‘Where a note secured by a mortgage is transferred so as to vest the

legal title to the note in the transferee, such transfer operates as an equitable

assignment of the mortgage, even though the mortgage is not assigned or delivered.

Kuck v. Sommers (1950), 59 Ohio Law Abs. 400, 100 N.E.2d 68, 75. Furthermore, Ohio

courts have recognized that technical noncompliance with Civ. R. 56 authentication

procedures is not prejudicial if the authenticity of the supporting documents is not called

into question. See Insurance Outlet Agency, Inc. v. American Medical Sec., Inc., Licking

App. No. 01 CA 118, 2002-Ohio-4268, paragraph 13, citing Knowlton v. Knowlton Co.

(1983), 10 Ohio App.3d 82, 460 N.E.2d 632; International Brotherhood of Electrical

Workers v. Smith (1992), 76 Ohio App.3d 652, 602 N.E.2d 782; In re: Foreclosure of
Fairfield County App. Case No. 2010 CA 00001 15

Liens (Feb. 9, 2000), Harrison App. No. 96-489-CA. In the case sub judice, appellants

did not expressly contradict the evidence of ownership via their memorandum contra or

affidavit; as such, we hold appellants' “real party in interest” argument must fail. Cf.

Provident Bank v. Taylor, Delaware App.No. 04CAE05042, 2005-Ohio-2573, paragraph

17.’ Street, at paragraph 28.

{¶48} “Particularly given the present state of banking and financing it makes little

sense not to apply this reasoning to transfers of mortgages without express transfer of

the note, where the record indicates it was the intention of the parties to transfer both.”

Id. at ¶26-31.

{¶49} In the instant case, appellants have argued that there is no evidence

establishing the conveyance transactions from Argent Mortgage Company, LLC to

Argent Securities, Inc., and there is no evidence showing the assignment of the loan

from the depositor Argent Securities to appellee. However, the assignment on its face

purports to transfer the mortgage and the note from the lender, Argent Mortgage

Company, to appellee. Appellants have presented no evidence to demonstrate that the

conveyance is improper or incomplete.

{¶50} Appellants further argue that the note was not properly endorsed

according to the PSA, and therefore the note is not properly a part of the pool.

However, as this Court held in Dobbs, supra, the transfer of the mortgage without

express transfer of the note is sufficient to transfer both, where the record indicates it is

the intention of the parties to transfer both. The assignment in the instant case transfers

the mortgage to appellee. Appellants have presented no evidence that this conveyance

was not valid. The assignment expressly indicates an intent to transfer both the
Fairfield County App. Case No. 2010 CA 00001 16

mortgage and the note. Further, appellants presented no evidence to support their

claim that the note was not properly a part of the pool transferred to appellee, and

therefore, have not contradicted the assignment which facially shows the transfer to

appellee.

{¶51} The assignment of error is overruled.

{¶52} The judgment of the Fairfield County Common Pleas Court is reversed

and this matter is remanded to the trial court for further proceedings.

By: Edwards, P.J.

Gwin, J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/r0831
[Cite as Deutsche Bank Natl. Trust Co. v. Hansen, 2011-Ohio-1223.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DEUTSCHE BANK NATIONAL :
TRUST COMPNAY, AS TRUSTEE :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CHRISTINA HANSEN, et al., :
:
Defendants-Appellants : CASE NO. 2010 CA 00001

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Court of Common Pleas is reversed. This case is

remanded to the trial court for further proceedings consistent with this opinion. Costs

assessed to appellees.

_________________________________

_________________________________

_________________________________

JUDGES