Hutcheson v. Ohio Auto. Dealers Assn.

[Cite as Hutcheson v. Ohio Auto. Dealers Assn., 2012-Ohio-3685.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97394

LAURA HUTCHESON
PLAINTIFF-APPELLANT

vs.

OHIO AUTOMOBILE DEALERS
ASSOCIATION, ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-711148

BEFORE: Keough, J., Stewart, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: August 16, 2012
ATTORNEYS FOR APPELLANT

Michael W. Hogan
Michael W. Hogan, Esq., LLC
12000 Edgewater Drive
Suite 1004
Lakewood, OH 44107

Thomas J. Misny
Thomas J. Misny, M.D., Inc.
7319 Eagle Road
Waite Hill, OH 44094

ATTORNEYS FOR APPELLEES

For Ohio Automobile Dealers Association

Robert A. Zimmerman
Benesch Friedlander Coplan & Aronoff
200 Public Square
Suite 2300
Cleveland, OH 44114

Marc S. Blubaugh
Ryan P. Hatch
John F. Stock
Benesch Friedlander Coplan & Aronoff
41 S. High Street, 26th Floor
Columbus, OH 43215

For Halleen Chevrolet, Inc.

Harold A. Tipping
Christopher A. Tipping
Stark & Knoll Co., LPA
3475 Ridgewood Road
Akron, OH 44333
KATHLEEN ANN KEOUGH, J.:

{¶1} Plaintiff-appellant, Laura Hutcheson (“Hutcheson”), appeals various

decisions by the trial court in favor of defendants-appellees, Ohio Automobile Dealers

Association (“OADA”) and Halleen Chevrolet, Inc. (“Halleen”) (collectively

“appellees”). For the reasons that follow, we affirm.

I. Facts

{¶2} The facts in this case arise out of the sale of a motor vehicle. In March

2009, Hutcheson purchased a 2009 Chevy Cobalt from Halleen. As part of the

transaction, she signed a “Sales Order” and a “Motor Vehicle Purchase Contract.” The

Sales Order specifically listed the purchase price, trade allowance, manufacturer

incentives, sales tax, and all the fees, charges, and expenses, including a “documentary

fee” in the amount of $250.

II. Procedural History

{¶3} In November 2009, Hutcheson filed a class action lawsuit against the OADA

in Cuyahoga County Common Pleas Court alleging that Halleen’s assessment of the $250

documentary fee was unlawful and that the OADA conspired with its member dealers,

including Halleen, to defraud customers, including Hutcheson, by unlawfully assessing an

additional “doc fee” to the purchase price of a motor vehicle. In February 2010, the

OADA filed a notice of removal, thereby removing the case to federal court. While the

case was pending in federal court, Hutcheson sought and received leave to amend her
complaint to eliminate any federal claims. Thus, in March 2010, the case was remanded

to the Cuyahoga County Court of Common Pleas.

{¶4} On remand, Hutcheson sought leave to file a second amended complaint,

which the trial court granted on April 21, 2010. The second amended complaint added

Halleen as a defendant to the action. In Counts 1, 5, and 6, of the second amended

complaint, Hutcheson asserted claims for violations of the Ohio Consumer Sales Practices

Act (R.C. 1345.01 et seq.) and/or Deceptive Trade Practices (R.C. 4165.01 et seq.), Count

2 alleged anti-trust violations under Ohio’s Valentine Act (R.C. 1331.01 et seq.), Count 3

alleged fraudulent misrepresentation, Count 4 alleged unjust enrichment, Count 7 alleged

overcharging of temporary tag, title, and registration fees, and Counts 8 and 9 alleged

civil conspiracy. As pertinent to this appeal, all counts of the complaint were alleged

against Halleen, but only the OADA was subject to Counts 2, 3, 8, and 9.

{¶5} On May 14, 2010, the OADA filed a motion to dismiss pursuant to Civ.R.

12(B)(6) as to Counts 2, 3, 8, and 9 of Hutcheson’s second amended complaint.

Similarly, in June 2010, Halleen filed its own motion to dismiss and/or for judgment on

the pleadings under Civ.R. 12(B)(6) and 12(C) as to all counts in Hutcheson’s second

amended complaint. While these motions were pending, Hutcheson obtained a letter

dated July 16, 2010 from William A. Riesenberger, counsel for the Sales and Use

Division of the Ohio Department of Taxation (“tax letter”). The tax letter purportedly

sought to establish that Halleen improperly charged Hutcheson sales tax on the

documentary fee when she purchased her vehicle. After obtaining the letter, Hutcheson
moved for leave to file a sur-reply to Halleen’s motion to dismiss seeking to incorporate

the letter, which the court denied.

{¶6} In April 2011, nearly a year after the OADA and Halleen filed their

respective motions to dismiss, the trial court granted the OADA’s motion to dismiss on all

counts, and granted Halleen’s motion to dismiss on all counts except Count 6, relating to

Halleen’s arbitration provision.

{¶7} After the trial court ruled on both motions to dismiss, Hutcheson filed a

motion for reconsideration and for leave to file a third amended complaint. Hutcheson

sought reconsideration of the trial court’s order dismissing her complaint, relying on the

tax letter from Riesenberger. Hutcheson asserted that the tax letter establishes a claim

for relief to survive appellees’ motions to dismiss. Additionally, Hutcheson inquired

whether the previously granted motions to dismiss were dismissals with or without

prejudice. The trial court summarily denied Hutcheson leave to file her third amended

complaint, but ordered the parties to brief the issue of whether the dismissals should be

with or without prejudice. The trial court ultimately denied Hutcheson’s motion for

reconsideration and determined that the dismissals in the case were with prejudice.

Hutcheson timely appealed.

{¶8} In response to this court’s sua sponte order in Hutcheson v. OADA, 8th Dist.

No. 97252, dismissing the appeal for lack of a final appealable order, Hutcheson moved

to amend her complaint for the sole purpose of eliminating Count 6 to create a final

appealable order.
 {¶9} Hutcheson now appeals, raising three assignments of error.

III. Motion to Amend Complaint

{¶10} In her first assignment of error, Hutcheson contends that the trial court erred

in denying her motion for leave to file an amended complaint. However, after dissecting

her arguments within the assignment of error, we find that she also raises the issue that

the trial court erred in issuing the dismissal of her case with prejudice.

{¶11} It is well established that a trial court’s determination whether to grant a

motion for leave to amend a complaint will not be reversed on appeal absent an abuse of

discretion. Csejpes v. Cleveland Catholic Diocese, 109 Ohio App.3d 533, 541, 672

N.E.2d 724 (8th Dist.1996), citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum.

Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991). To prove an abuse of discretion,

Hutcheson must demonstrate more than an error of law and that the trial court’s denial of

her motion was unreasonable, arbitrary, or unconscionable. Id.

{¶12} Civ.R. 15(A) allows for amendment of pleadings by leave of court or by

written consent of the other party after a responsive pleading has been made. Civ.R.

15(A) expressly provides, “[l]eave of court shall be freely given when justice so

requires.” The Ohio Supreme Court has held that “[t]he language of Civ.R. 15(A)

favors a liberal amendment policy and a motion for leave to amend should be granted

absent a finding of bad faith, undue delay or undue prejudice to the opposing party.”

Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984).
 {¶13} In this case, Hutcheson sought leave to file an amended complaint after the

trial court issued its written opinion dismissing her complaint pursuant to Civ.R.

12(B)(6) and/or 12(C). She contends that the trial court erred and should have allowed

her to amend her complaint because the amended complaint would have contained new

material and relevant evidence, information, and judicial precedent, that would have

cured any alleged defect in her second amended complaint sufficient to defeat appellees’

motions to dismiss.

{¶14} We do not find that the trial court abused its discretion in denying

Hutcheson leave to file her third amended complaint because leave was requested with

“undue delay,” i.e., after the trial court granted OADA’s Civ.R. 12(B)(6) motion to

dismiss and Halleen’s motion to dismiss, in part. Further, allowing Hutcheson to amend

her complaint would have been prejudicial to both Halleen and the OADA, especially

when the “new material and relevant evidence, information, and judicial precedent” was

available after the motions to dismiss were filed but before the trial court issued its ruling,

approximately one year later. Hutcheson could have moved to amend her complaint

prior to the trial court’s ruling, but she chose to wait until after the adverse ruling.

{¶15} Accordingly, the trial court did not abuse its discretion in denying

Hutcheson leave to amend her complaint.

{¶16} Hutcheson also challenges the trial court’s decision to issue the dismissal of

her complaint with prejudice. She contends that because she could amend her complaint

with “a set of facts” to survive Ohio’s notice pleading standard, the dismissal should have
been without prejudice. Furthermore, she contends that a Civ.R. 12(B)(6) dismissal

does not adjudicate the merits of the complaint; thus, the trial court’s dismissal should

have been without prejudice.

{¶17} Civ.R. 12(B)(6) permits the court, upon the motion of an adverse party, to

dismiss a claim or claims for relief for failure to state a claim upon which relief may be

granted. The motion necessarily asserts that the pleader has failed to plead the operative

grounds constituting a claim. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532

N.E.2d 753 (1988). The motion may be granted only when from the face of the

pleadings in a complaint the court finds beyond doubt that the plaintiff can prove no set of

facts in support of her claim that would entitle her to relief. State ex rel. Midwest Pride

IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931. For this

purpose, all factual allegations in the complaint are presumed true and all reasonable

inferences are made in favor of the nonmovant. Id.

{¶18} The decision whether a Civ.R. 12(B)(6) motion should be granted must be

made with reference to the general rules for pleadings in the civil rules. Collins v. Natl.

City Bank, 2d Dist. No. 19884, 2003-Ohio-6893, ¶ 8. Ohio contemplates use of notice

pleading rather than fact pleading. York v. Ohio State Highway Patrol, 60 Ohio St.3d

143, 573 N.E.2d 1063 (1991). Thus, Civ.R. 8(A) requires a claim for relief only to

“contain (1) a short and plain statement showing that the party is entitled to relief, and (2)

a demand for judgment for the relief to which the party claims to be entitled.” Except
for special matters identified in Civ.R. 9, which must be pleaded with particularity,

“[e]ach averment of a pleading shall be simple, concise and direct.” Civ.R. 8(E)(1).

{¶19} In ruling on a Civ.R. 12(B)(6) motion, a court inquires whether the

allegations constitute a statement of claim under Civ.R. 8(A). The rule presumes that

the trial court reviews the complaint, its allegations, and causes of action. If the

complaint can be pleaded in another way, then the trial court should issue the dismissal

without prejudice. See, e.g., Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, 897 N.E.2d 147 (failure to file Civ.R.10(D)(2) affidavit warrants

dismissal without prejudice); Simpson v. Lakewood, 8th Dist. No. 82624,

2003-Ohio-4953 (failure to assert any facts in support of prayer for relief warrants

dismissal without prejudice). However, dismissal with prejudice is proper if the

complaint cannot be plead in another way. See, e.g., Collins (facts and law alleged do

not state a claim for relief); Lisboa v. Lisboa, 8th Dist. No. 95673, 2011-Ohio-351

(unsupported legal conclusions do not state claim for relief); Kuhar v. Marc Glassman,

8th Dist. No. 91989, 2009-Ohio-2379 (statute of limitations). Consequently, a ruling on

a Civ.R. 12(B)(6) motion can be an adjudication of the merits of the claim. See Civ.R.

41(B) (involuntary dismissals other than those on jurisdictional grounds constitute

“adjudication[s] on the merits” unless the dismissal order specifies the contrary); State ex

rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54,

2009-Ohio-4176, 914 N.E.2d 170, ¶ 14-15.
 {¶20} In this assignment of error, Hutcheson does not challenge the trial court’s

overall decision granting appellees’ individual motions to dismiss; rather, she asserts that

the trial court should have issued the dismissal without prejudice because she could have

pleaded her case in another way.

{¶21} In support of her argument, she relies on the Supreme Court’s holding in

Fletcher that a Civ.R. 12(B)(6) dismissal of a complaint for failure to file the affidavit

required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits; thus, the

dismissal of the complaint is without prejudice. Fletcher at ¶ 3, 16-18.

{¶22} Hutcheson also emphasizes the Fletcher court’s statement that “a dismissal

for failure to state a claim is without prejudice except in those cases where the claim

cannot be pleaded in any other way.” Id. at ¶ 17, citing Collins, 2d Dist. No. 19884,

2003-Ohio-6893, ¶ 51 (“An order of dismissal entered pursuant to Civ.R. 12(B)(6) is an

adjudication on the merits of the issue the rule presents, which is whether a pleading put

before the court states a claim for relief. It does not adjudicate the merits of the claim

itself, unless it can be pleaded in no other way.”).

{¶23} Thus, the issue is whether Hutcheson can amend her complaint with a set of

facts to survive a Civ.R. 12(B)(6) motion or pleaded her claims in another way.

Hutcheson maintains that she could have pled her case “in another way by incorporating

and attaching the Ohio Tax Department Letter, by citing and analyzing Ferrari [v.

Howard, 8th Dist. No. 77654, 2002-Ohio-3539], and by restating the second sentence of

R.C. 1317.07, which prohibits additional fees.” However, this information does not
contain any new facts that would have enabled her to plead her claims “in any other way”

under Fletcher because the information she sought to use would not have cured the

deficiencies in her complaint.

{¶24} Although Hutcheson asserts several “causes of action,” the core issue

involves the documentary fee — (1) whether it is distinguishable from a “documentary

service charge” and (2) whether Ohio law allows such a fee when purchasing a motor

vehicle. As we will discuss under Hutcheson’s third assignment of error, Ohio law

allows automobile dealerships to charge a “documentary service charge” in connection

with the purchase of a motor vehicle and Halleen’s assessment of the $250 “documentary

fee” falls within the purview of Ohio law.

{¶25} The second amended complaint in this case is not simple, concise, and direct

as Civ.R. 8 contemplates. It contains over 117 pages, 564 numbered paragraphs, and

alleges nine causes of action. As the Collins court stated, the plaintiff’s “complaint does

not fail for lack of notice. It fails because the matters of fact and law alleged fail to state

claims for which the law affords relief. The defect is not avoided by prolixity.”

Collins, 2d Dist. No. 19884, 2003-Ohio-6893, ¶ 58. We find Hutcheson’s second

amended complaint to be equally deficient.

{¶26} Accordingly, we find that the trial court properly issued the dismissal of

Hutcheson’s complaint with prejudice.

{¶27} Hutcheson’s first assignment of error is overruled.

IV. Conversion of Civ.R. 12(B)(6) Motions to Dismiss
 {¶28} In her second assignment of error, Hutcheson contends that the trial court

erred in failing to transform appellees’ Civ.R. 12(B)(6) motions to dismiss to Civ.R. 56

motions for summary judgment.

{¶29} We initially note that Hutcheson never requested the trial court to convert

the Civ.R. 12(B)(6) motions to dismiss to Civ.R. 56 motions for summary judgment.

Therefore, she has waived any error on appeal, except plain error. A trial court has no

duty to convert a motion to dismiss to a motion for summary judgment, unless it is going

to consider matters and evidence outside the complaint. From the record, we find that

the trial court did not consider any matters beyond the complaint; therefore, the trial court

did not have any obligation to convert the motion to dismiss to a motion for summary

judgment. See Civ.R. 12(B); Collins, 2d Dist. No. 19884, 2003-Ohio-6893, ¶ 10.

Accordingly, we find no plain error and the second assigned error is overruled.

V. “Documentary Service Charge” vs. “Doc Fee”

{¶30} In her third and final assignment of error, Hutcheson contends that the trial

court erred in its determination that Halleen’s fixed and mandatory $250 “doc fee”

charged for sales paperwork is interchangeable with the finance charge, termed the

“documentary service charge” authorized by R.C. 1317.07, Ohio’s Retail Installment

Sales Act (“RISA”).

{¶31} Hutcheson’s complaint alleged that Halleen charged her a $250

documentary fee that was in violation of Ohio’s RISA. The trial court, in granting

appellees’s individual motions to dismiss, held that R.C. 1317.07 and 4517.261 authorize
the imposition of a documentary service charge in retail installment sales, and specifically

in motor vehicle sales, so long as the charge does not exceed $250 dollars. The trial

court found that “the terms ‘documentary service fees’ and ‘documentary service charge’

are used interchangeably.” We agree with the trial court.

{¶32} R.C. 1317.07 generally governs retail installment sales and authorizes a

documentary service charge. It provides, in part:

No retail installment contract authorized by section 1317.03 of the Revised

Code that is executed in connection with any retail installment sale shall

evidence any indebtedness in excess of the time balance fixed in the written

instrument in compliance with section 1317.04 of the Revised Code, but it

may evidence in addition any agreements of the parties for the payment of

delinquent charges, as provided for in section 1317.06 of the Revised Code,

taxes, and any lawful fee actually paid out, or to be paid out, by the retail

seller to any public officer for filing, recording, or releasing any instrument

securing the payment of the obligation owed on any retail installment

contract. No retail seller, directly or indirectly, shall charge, contract for, or

receive from any retail buyer, any further or other amount for examination,

service, brokerage, commission, expense, fee, or other thing of value. A

documentary service charge customarily and presently being paid on May 9,

1949, in a particular business and area may be charged if the charge does

not exceed two hundred fifty dollars per sale.
 {¶33} However, R.C. 4517.261 specifically governs documentary service charges

in connection with the sale, whether by retail installment or otherwise, of a motor vehicle.

It provides,

A motor vehicle dealer may contract for and receive a documentary service
charge for a retail or wholesale sale or lease of a motor vehicle. A
documentary service charge shall be specified in writing without
itemization of the individual services provided. A documentary service
charge shall be not more than the lesser of the following:

(A) The amount allowed in a retail installment sale;

(B) Ten per cent of the amount the buyer or lessee is required to pay
pursuant to the contract, excluding tax, title, and registration fees, and any
negative equity adjustment.

{¶34} In determining the amount of the documentary service charge, and pertinent

to this appeal, R.C. 4517.261(A) allows for “the amount allowed in a retail installment

sale,” which pursuant to R.C. 1317.07, cannot exceed $250.

{¶35} We find that R.C. 4517.261 takes precedence over R.C. 1317.07 when

assessing a documentary service charge in connection with the sale of a motor vehicle.

R.C. 4517.261 is a special provision applicable only to motor vehicle dealers, whereas

R.C. 1317.07 is a general provision applicable to all sellers who enter into a retail

installment sale contract. “It is well-settled principle of statutory construction that when

two statutes, one general and the other special, cover the same subject matter, the special

provision is to be construed as the exception to the general statute which might otherwise

apply.” State ex rel. Dublin Secs., Inc. v. Ohio Div. of Secs., 68 Ohio St.3d 426, 429,

1994-Ohio-340, 627 N.E.2d 993, citing Acme Eng. Co. v. Jones, 150 Ohio St. 423, 83
N.E.2d 202 (1948), paragraph one of the syllabus. “Where there is no manifest

legislative intent that a general provision of the Revised Code prevail over a special

provision, the special provision takes precedence.” State v. Frost, 57 Ohio St.2d 121,

387 N.E.2d 235 (1979), paragraph one of the syllabus.

{¶36} In fact, the legislative intent is clear that R.C. 4517.261 was enacted as a

special provision to clarify any confusion or resolve any argument, such as the one made

in this appeal, that motor vehicle dealers cannot assess a documentary service charge.

The legislative notes of R.C. 4517.261, found in Section 745.10 of 2007 HB No. 119,

expressly state the legislative intent:

SECTION 745.10. (A) The enactment of section 4517.261 of the Revised
Code is intended as a clarification of existing law allowing documentary
service charges to be assessed in all retail and wholesale sales and leases of
motor vehicles, including those involving a retail installment sale and those
not involving a retail installment sale, including leases, cash transactions,
and transactions in which consumers obtain their own financing.

(B) The enactment of section 4517.261 of the Revised Code expresses the

legislative intent of the General Assembly currently and at the time of the

original enactment of the Revised Code by recognizing that motor vehicle

dealers may charge, and historically have charged, a documentary service

charge in all transactions, including those involving a retail installment sale

and those not involving a retail installment sale, including leases, cash

transactions, and transactions in which consumers obtain their own

financing.
 {¶37} Accordingly, it is clear that the R.C. 4517.261 expressly allows automobile

dealerships to assess a documentary service charge in connection with the sale of a motor

vehicle and that fee can be up to $250. We find that whether this amount is termed a

“documentary service charge” or “documentary fee” or “doc fee,” the legislature was

clear that such a charge or fee is allowable as long as it abides by the express mandates of

R.C. 4517.261, i.e., specified in writing and not in excess of the amount allowed under

subsections (A) and (B).

{¶38} In this case, Halleen’s purchase contract provides for a “documentary fee”

that is specified in writing as a “documentary fee” and is not in excess of $250, which

would be the lesser of the two amounts allowable under R.C. 4517.261(A) and (B).

Accordingly, Halleen’s lawful conduct cannot serve as a basis for liability.

{¶39} We note that a majority of Hutcheson’s arguments in her complaint focus on

R.C. 1317.07, Ohio’s RISA statute. However, as previously discussed, the controlling

law regarding documentary service charges relating to the sale of motor vehicles is found

in R.C. 4517.261. Therefore, the general provisions of R.C. 1317.07 have no

significance with the documentary service charge associated with the sale of a motor

vehicle, except they provide an allowable dollar amount an automobile dealer can assess

for the charge. Accordingly, any argument or “anomaly” that Hutcheson makes on

appeal challenging the documentary service charge as a violation of Ohio’s RISA is

without merit.
 {¶40} Hutcheson also maintains that the Halleen’s assessment of the

documentary fee was contrary to law because the documentary fee was added into the sale

price of the vehicle and then was taxed. A “documentary service charge” may be added

to the base price of the motor vehicle and then subject to the sales tax. In 2004, the Ohio

Department of Taxation issued an updated information release concerning documentary

fees. See ST 1982-01. In the Information Release, the Department stated:

This department was contacted by the Ohio Auto Dealers Association
regarding a “documentary fee” charge being made by some auto dealers.

Based on the explanation given by this Association that this is an additional
charge to the customer for various services such as paper work, title runners
expenses, costs incurred in making financial arrangements, etc., they were
advised that these charges are part of the tax base and subject to the sales
tax. Such charges are considered within the definition of price and part of
the income from the sale of the motor vehicle.

5739.01(H)(1)(a) Ohio Revised Code states in part:

(H)(1)(a) “Price”, except as provided in divisions (H)(2) and (3) of this
section, means the total amount of consideration, including cash, credit,
property, and services, for which tangible personal property or services are
sold, leased, or rented, valued in money, whether received in money or
otherwise, without any deduction for any of the following * * *:

(iii) Charges by the vendor for any services necessary to complete the sale;

The charges for notary and title fees, which are separately stated on the

customer’ invoice, are not subject to the tax.

{¶41} Therefore, we find that the documentary fee was properly taxed by Halleen.

{¶42} The final argument that Hutcheson makes challenging the validity of the

documentary fee is that the fee assessed by Halleen was conveyed to Hutcheson as a
mandatory, non-negotiable fixed charge, on a preprinted form. We find that these

allegations are mere conclusory statements without any factual support pertaining to the

sale and purchase of her motor vehicle; we summarily find them without merit.

{¶43} Accordingly, Hutcheson’s final assignment of error is overruled. We do

not find any error by the trial court in finding that the term “documentary service charge”

and “documentary fee” are interchangeable or that the fee assessed to Hutcheson when

she purchased her motor vehicle was not contrary to law.

{¶44} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR