Johnson v. Cleveland City School Dist.

[Cite as Johnson v. Cleveland City School Dist., 2012-Ohio-159.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97125

SHARON JOHNSON, Ph.D.

PLAINTIFF-APPELLANT

vs.

CLEVELAND CITY SCHOOL
DISTRICT, ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Common Pleas Court
Case Nos. CV-684948
 2

BEFORE: E. Gallagher, J., Celebrezze, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: January 19, 2012

ATTORNEYS FOR APPELLANT

Edward L. Gilbert
Tracee D. Hilton-Rorar
Edward L. Gilbert Co., LPA
One Cascade Plaza
Suite 825
Akron, Ohio 44308

ATTORNEYS FOR APPELLEES

Susan M. Dimickele
Tara A. Aschenbrand
Meghan E. Hill
Squire, Sanders & Dempsey LLP
2000 Huntington Center
41 S. High Street
Columbus, Ohio 43215

William Michael Hanna
Squire, Sanders & Dempsey, LLP
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114

EILEEN A. GALLAGHER, J.:

{¶ 1} Sharon Johnson appeals from the decision of the trial court
 3

granting the motion for summary judgment of defendants-appellees,

Cleveland City School District, Sharon McDonald, Donna Bowen, and

Clinton Faulkner. Johnson argues the trial court erred when it determined

that her claims against the defendants-appellees were barred by the doctrine

of issue preclusion. Finding no merit to this appeal, we affirm the decision

of the trial court.

{¶ 2} As stated by this court in Johnson v. Cleveland City School Dist.,

8th Dist. No. 94214, 2011-Ohio-2778, 2011 WL 2409901, the facts of this case

are as follows:

Johnson began her employment as a school teacher with the
district in 1989. Approximately a year prior to her employment
with the district, Johnson was involved in an automobile
accident and as a result was diagnosed with cervical
myelopathy. The condition resembles the effects of a stroke or
multiple sclerosis: if Johnson overexerts herself, her breathing
becomes labored, she feels faint, her arm will “curl up,” her legs
become weak, and her muscles become fatigued.

In 1993, Johnson’s condition worsened to the point where she
had difficulty walking, ascending stairs, and performing
“activities of daily living.” In August 2002, Johnson requested
a ‘special transfer’ to an area of administration with a
handicapped facility. Dr. Patrick Bray, an occupational
medicine specialist, was retained by the district to evaluate
Johnson.

In a September 12, 2002 letter, Dr. Bray described Johnson’s
case as “fairly complex and unusual,” and opined that she
suffered from a “disability covered by the Americans With
Disabilities Act (ADA).” Bray further opined that Johnson’s
 4

“ADA-covered disability does pose a direct threat of harm” to her.
He concluded that:

“The district may remove this threat with reasonable
accommodations such as the following: ‘[ (1) ] no standing
for more than one hour per day[;] [ (2) ] no continuous
speaking[;] [ (3) ] alternate sitting, standing and walking
[;] [ (4) ] minimal stairs[;] [and (5) ] use of ambulatory aids
such as a cane, and under extreme circumstances, an[
]electrical scooter as needed.’”

Johnson’s transfer request was granted, and in 2004, the district
assigned her to Adlai Stevenson Elementary School under
principal Susan Hawthorne-Clay. Hawthorne-Clay gave the
following responsi-bilities to Johnson: (1) assisting a special
needs teacher; (2) tutoring groups of eight to 10 students; and (3)
filling in on “whatever was needed.” Johnson was given the title
‘academic interventionist’ while at Adlai Stevenson.

In the fall of 2005, principal Hawthorne-Clay transferred to
Robert H. Jamison School and requested that Johnson transfer
with her. The district allowed the transfer, and Johnson did
grant writing, parent interventions, and supervision of the
administrative office in Hawthorne-Clay’s absence.

In the beginning of the 2006-2007 school year, appellee Sharon
McDonald, a district administrator, visited Robert H. Jamison
School and met Johnson for the first time. Johnson told
McDonald that she held small reading groups and helped
principal Hawthorne-Clay with discipline at times. According to
Johnson, McDonald told her that she would be returning to
classroom teaching, and would be assigned to a classroom on the
second floor. 1 Johnson told McDonald of her medical
restrictions, but McDonald insisted on the reassignment, despite
the restrictions and the fact that the school’s elevator was
non-functional.

The class was being taught by a substitute teacher at the time.
1
 5

After her visit to the school, McDonald met with other
administrators from the district, specifically appellees Faulkner
and Bowen. They reviewed Johnson’s personnel file, including
the 2002 statement from Dr. Bray with the listed restrictions,
and discussed the restrictions and accommodations.

The district thereafter met with Johnson and her union
representative. Appellee Faulkner stated that he had reviewed
Dr. Bray’s report and believed that Johnson could work in a
classroom. Johnson said that she had a “classroom exemption.”
Appellee Faulkner told Johnson that the district expected her to
be a classroom teacher.

Johnson filed a union grievance. As part of the resolution of the
grievance, Johnson was promised that she would be “provided
support via an additional teacher and grade level staff person.”
Further, the school’s elevator was supposed to be fixed and
Johnson was to have a key to the elevator.

In a September 5, 2006 letter from principal Hawthorne-Clay to
Johnson, Hawthorne-Clay informed Johnson that her
assignment at Robert H. Jamison School had been changed “to
assume the open 8th grade English-language arts position, per
Ms. Sharon McDonald.” Johnson reported to the English
language arts class on September 7.

District administrators visited the class on September 8. The
substitute teacher was in the front of the class and Johnson was
in the back of the room working with a small group of students.
The administrators spoke to Johnson in the hall. Johnson
complained about having to climb the stairs and the temperature
of the classroom, i.e., it was too hot. According to Johnson,
McDonald told her, “[e]nough, you’re going to teach this
classroom,” and that the substitute teacher was going to be
reassigned. Johnson felt overwhelmed by heat and stress and
left that day; she did not return to the school until January 8,
2007.

In September 2006, Johnson filed a complaint with the Equal
 6

Employment Opportunity Commission (“EEOC”) alleging a
violation of her ADA rights.

In late October 2006, Johnson submitted to the district a leave of
absence form with a letter from a Dr. Laura Shoemaker, which
stated that Johnson was under her care and that she was unable
to attend work “from September 8, 2006, until the resolution of
her job requirements in accordance with her ADA restrictions.”

In December 2006, the Civil Rights Commission issued a no
probable cause ruling on Johnson’s EEOC complaint. The
district thereafter denied Johnson’s request for leave and
informed her that she was to report to her classroom assignment
at Robert H. Jamison on January 8, 2007, and Johnson did.
Johnson testified that the second-floor classroom was “sauna
like,” and she was without assistance to escort her students up
and down the stairs. She felt physically unable to perform, and
left. Johnson remained off work until February 8, 2007, and
used accumulated sick time for her leave.

On January 9, 2007, the day after she left, Johnson requested a
“fitness for duty” examination. Pursuant to the request,
Johnson had another examination with Dr. Bray. In a February
2007 report, Dr. Bray opined as follows:

“1. Dr. Johnson does presently suffer from a disability
covered by the Americans With Disabilities Act (ADA). I
want to say once again that this case is complex and
unusual. However, I haven’t the slightest doubt that her
disability is appropriately covered by the ADA.

“2. This ADA-covered disability does pose a direct threat of
harm primarily to Dr. Johnson.”

Bray concluded that Johnson could be reasonably accommodated
with the same restrictions he provided in his September 2002
report, with the addition of “[n]o work environment with extreme
heat, humidity, or cold temperatures; [and][s]he should not be
required to verbally control resistant students that persists after
 7

an initial warning[.]” The doctor explained that the last
restriction was a “refinement of my previous recommendation
that [Johnson] not engage in continuous speaking.”

According to Dr. Bray, Johnson’s “disability is permanent in
nature.” But he noted that “her physical limitations tend to
vary, [and] she is certainly capable of being gainfully employed
within the accommodations mentioned above.”2

An April 27, 2007 report also described Johnson’s disability as
“permanent,” and suggested the same restrictions as Dr. Bray.

In May 2007, Johnson and district officials met. By this time,
Johnson had obtained a guidance license, and she brought
documentation of that to the meeting and expressed interest in a
guidance counselor position. She also brought documentation to
show that she could be placed as a reading specialist or an
administrator. Johnson testified that she obtained her guidance
license specifically as a means to resolve her restrictions.
During the meeting, Johnson also assured the district officials
that she could maintain discipline even given her speaking
restriction.

In a July 2007 letter to Johnson, the district informed her that it
was “willing to continue to engage in the interactive process with
[her,]” but that her speaking restriction was “problematic.” The
district concluded that the request for a speaking restriction was
not reasonable and that it was therefore unable to accommodate
it.

In a July 2007 letter, dated the day after the district’s letter,

2
Johnson also submitted the reports from two Cleveland Clinic doctors in
opposition to the district’s summary judgment motion. A January 2007 report
concluded that Johnson “suffers from a disability covered by the Americans with
Disabilities Act[, and that the disability] does pose direct threat of harm” to her.
The report also described the disability as “permanent in nature,” and suggested
the same restrictions as Dr. Bray’s February 2007 report, with the exception of the
speaking restriction.
 8

Johnson reiterated her ability to maintain discipline with her
speaking restriction. She further expressed her interest in
being a guidance counselor, and stated that she had applied for a
guidance counselor position in the district in the spring of 2007.

On Friday, August 17, 2007, appellee Bowen called Johnson and
told her that there were three open teaching positions. Johnson
expressed concern as to whether any of the positions were
consistent with her restrictions and reminded Bowen that she
had applied for a guidance counselor position. However,
according to Johnson, she accepted one of the positions.

A short time later that same day, Bowen called Johnson again and told her
that she needed to provide that district with medical certification regarding
her ability to work. According to Johnson, Bowen told her that the position
she had just accepted was outside of her restrictions and so she needed
certification that the restrictions had been removed. According to the
district, certification is required whenever an employee is returning from
leave and the request was the district’s standard procedure.

The district terminated Johnson in a letter dated August 21,
2007 (Tuesday). The letter stated that Johnson “declined the
position without speaking to [her] physician[,]” and that it had
no positions available to accommodate her restrictions. Johnson
denied declining the position and, in fact, it was her
understanding that Bowen was going to call her on Monday,
August, 20 to discuss the situation further. Bowen never called
and the next communication Johnson received from the district
was the termination letter.

{¶ 3} Prior to her termination, Johnson filed a complaint in federal

district court on May 21, 2007. Johnson alleged a violation of the Americans

with Disabilities Act, as well as Ohio’s civil rights statute, breach of contract,

and intentional infliction of emotional distress. She named the District as a

defendant, as well as Sharon McDonald, Supervisor of Special Projects;
 9

Donna Bowen, Supervisor of Assignments; and Clinton Faulkner, Deputy

Chief of Human Resources, in their individual, and official, capacities.

{¶ 4} The district court granted defendants-appellees’ motion for partial

summary judgment on the breach of contract claim. After discovery,

defendants-appellees filed another motion for summary judgment on the

remainder of Johnson’s claims. The district court found that Johnson had

not shown that the District had failed to accommodate her in any of the ways

provided in Dr. Bray’s 2002 list of accommodations prior to January 11,

2007. It also found that Johnson had failed to exhaust any alleged failures

after January 11, 2007, because she had not filed an Ohio Civil Rights

Commission charge relating to them. Lastly, it found there was no

causation evidence to support a retaliatory discharge claim. Accordingly, in

granting the motion as it related to the federal claims, the district court

declined to “exercise pendant jurisdiction over the remaining state claims.”

The district court stated that “[n]othing in this Memorandum Opinion and

Order should be construed to prevent Dr. Johnson from re-filing her state

claims in an appropriate Ohio court to the extent such claims are permitted

under Ohio law.” Johnson appealed.

{¶ 5} In February 2009, while her federal appeal was pending, Johnson

filed this action against the defendants-appellees alleging “multiple
 10

violations of 4112 of the Ohio Revised Code.” Johnson based her lawsuit on

the same facts and issues alleged in the prior federal action. She also

asserted a claim for intentional infliction of emotional distress.3

{¶ 6} In August 2009, the Sixth Circuit Court of Appeals affirmed in

part and reversed in part, the decision of the federal district court. See

Johnson v. Cleveland City School Dist., 344 Fed. Appx. 104 (6th Cir.2009).

The Sixth Circuit upheld the dismissal of all claims alleging a failure to

accommodate prior to January 11, 2007, “finding that placement of Johnson

in the regular classroom on the second floor at that time did not violate any

of the accommodations then reported (based on Dr. Bray’s 2002 report).” Id.

The Sixth Circuit also affirmed the dismissal of Johnson’s retaliatory

termination claim. However, the court determined that the district court

improperly limited the following claims because Johnson had exhausted the

administrative proceedings: (1) failure to accommodate after January 11,

2007; (2) discriminatory discharge; and (3) retaliatory denial of

accommodations after January 11, 2007.

{¶ 7} In September 2009, in this case, defendants-appellees filed a

motion for summary judgment, which Johnson opposed. In October 2009,

3
The District filed a motion for judgment on the pleadings relative to the
intentional infliction of emotional distress claim, and the trial court granted the
 11

the trial court summarily granted the defendants-appellees’ motion.

Johnson appealed. In a decision issued June 9, 2011, this court first

determined that Johnson was not barred from relitigating her claims in state

court because of the federal court findings by the doctrine of res judicata.

See Johnson, 2011-Ohio-2778. Specifically, this court determined that, at

the time the trial court granted the defendants-appellees’ motion for

summary judgment, the federal court had not yet issued a final judgment on

the merits of Johnson’s state claims. Id. The court then addressed the

substance of Johnson’s case and reversed the trial court’s grant of summary

judgment, finding the existence of genuine issues of material fact as to

whether Johnson was a qualified individual with a disability; whether the

District reasonably accommodated Johnson; and whether Johnson rejected

the job offered to her by the District. Id.

{¶ 8} During the pendency of the appeal in state court, the

defendants-appellees filed an amended motion for summary judgment in the

remanded action in federal district court, which the district court granted.

See Johnson v. Cleveland City School Dist., N.D. Ohio No. 1:07-CV-1610

(Feb. 5, 2010). The district court first concluded that while the Sixth Circuit

Court of Appeals had determined that Johnson exhausted a retaliatory

motion.
 12

failure to accommodate the claim in her second OCRC/EEOC charge, she did

not actually raise any such claim in her complaint. Thus, “no claim for

retaliatory failure to accommodate is part of this action, and no disposition

on such claim is possible or proper, regardless of whether the issue was

presented in the OCRC/EEOC charges filed by the Plaintiff.” Id.

{¶ 9} The district court then addressed Johnson’s failure to

accommodate the claim. The court found that while Johnson had

established a genuine issue of fact as to whether she has a recognized

disability, she failed to establish that she had requested an objectively

reasonable accommodation that the District had refused. Id. The district

court also addressed her claim for discriminatory discharge and, once again,

determined that Johnson had proposed no reasonable accommodation that

would allow her to perform the essential element of discipline, and thus

failed to satisfy the qualification element of her claim. The court thus

dismissed Johnson’s remaining claims.4

{¶ 10} On remand with the Cuyahoga County Court of Common Pleas,

and with the benefit of the federal district court’s decision issued February 5,

4
Johnson appealed the district court’s grant of summary judgement. In an
opinion issued November 15, 2011, the Sixth Circuit Court of Appeals affirmed the
judgment of the district court. See Johnson v. Cleveland City Sch. Dist., 6th Cir.
No. 10-3267, 2011 WL 5526465 (Nov. 15, 2011).
 13

2010, the defendants-appellees filed a motion for summary judgment on

June 27, 2011. Defendants-appellees argued that Johnson was barred from

relitigating her claims in the court of common pleas based on the doctrine of

issue preclusion. Johnson opposed this motion, however, on July 20, 2011,

the trial court granted defendants-appellees’ motion for summary judgment.

Johnson appeals, raising the following assignment of error:

The trial court erred in granting Defendants-Appellees’
Motion for Summary Judgment Based on Issue Preclusion.

{¶ 11} Under the doctrine of res judicata, a valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim

or issue arising out of the same transaction or occurrence that was the

subject matter of a previous action. Smith v. Bd. of Cuyahoga Cty. Bd. of

Commrs., 8th Dist. No. 86482, 2006-Ohio-1073, 2006-WL-562149; Grava v.

Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226. A

“transaction” is a “common nucleus of operative facts.” Id., quoting 1

Restatement of the Law 2d, Judgments, Section 24, Comment b (1982).

{¶ 12} Further, it does not matter that the court that previously decided

the claim is of a different jurisdiction than the court currently deciding the

claim. Smith. We have said that, to the extent to which a federal court

judgment operates as res judicata in the federal court, it also operates as res
 14

judicata in Ohio state courts. Smith; Powell v. Doyle, 8th Dist. No. 72900,

1998 WL 703012 (Oct. 8, 1998), citing Horne v. Woolever, 170 Ohio St. 178,

163 N.E.2d 378 (1959). Further, the Ohio Supreme Court has held that a

claim litigated to finality in the United States District Court cannot be

relitigated in a state court when the state claim involves the identical subject

matter previously litigated in federal court, and there is presently no issue of

party identity or privity. Smith; Rogers v. Whitehall, 25 Ohio St.3d 67, 494

N.E.2d 1387 (1986). Therefore, if Johnson’s claims were already decided in

federal court, she is barred from raising the same claims in state court.

{¶ 13} In order for a claim to be barred on the grounds of res judicata,

the new claim must share three elements with the earlier action: (1) identity

of the parties or their privies; (2) identity of the causes of action; and (3) a

final judgment on the merits. Smith; Omlin v. Kaufmann & Cumberland

Co., L.P.A., 8th Dist. No. 82248, 2003-Ohio-4069, 2003 WL 21757756, citing

Horne, supra.

{¶ 14} In the present case, both the parties and the claims are identical

to those in the federal court case. Additionally, the federal district court’s

February 5, 2010 decision represents a final judgment on the merits of
 15

Johnson’s state claims.5 Therefore, we conclude that Johnson’s claims are

barred by the doctrine of res judicata, and the trial court’s grant of summary

judgment is affirmed. As will be explained in greater detail below, the

federal court did a thorough analysis of Johnson’s state claims.

{¶ 15} As it related to Johnson’s failure to accommodate claims prior to

January 11, 2007, the district court dismissed all such claims, and the court

of appeals affirmed the dismissal. In so doing, the Sixth Circuit noted that:

The School District therefore provided Johnson with a
reasonable accommodation in response to the only
accommodation requests before January 11, 2007 that were
based on Johnson’s disability. Accordingly, we hold that the
district did not err in granting summary judgment to the School
District on Johnson’s failure to accommodate claim based on
events before January 11, 2007. Johnson, (6th Cir.)
With respect to her retaliatory termination claim, the Sixth Circuit

Court of Appeals held:

The district court found that there was no causal connection
between Johnson’s protected activity and her termination. We
agree. In order to establish causation, “a plaintiff must produce
sufficient evidence from which an inference could be drawn that
the adverse action would not have been taken had the plaintiff
not” engaged in protected activity. Nguyen v. City of Cleveland,
229 F.3d 559, 563 (6th Cir.2000). In rare circumstances,
temporal proximity may be enough to establish an inference of
causation. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516,

5
Any argument otherwise is further put to rest by the Sixth Circuit’s opinion
released November 15, 2011, affirming the federal district court’s grant of summary
judgment. See Johnson v. Cleveland City Sch. Dist., 6th Cir. No. 10-3267, 2011 WL
5526465 (Nov. 15, 2011).
 16

525 (6th Cir.2008). However, “where some time elapses
between when the employer learns of a protected activity and the
subsequent adverse employment action, the employee must
couple temporal proximity with other evidence of retaliatory
conduct to establish causality.” Id. The burden of establishing
causation is not onerous, but it does rest on the plaintiff.
Nguyen, 229 F.3d at 563.

Over a year passed between Johnson’s first OCRC charge and
her termination, and three months had passed between the filing
of this lawsuit and her termination. Standing alone, neither act
is sufficiently close in time to Johnson’s termination to warrant
an inference of causation. See Mickey, 516 F.3d at 525. As
there is no other evidence that links her termination to her
OCRC charge or to this lawsuit, Johnson has not established a
causal connection for her prima facie case.

Id.

{¶ 16} On remand, the district court addressed Johnson’s failure to

accommodate claims. Johnson’s list of accommodations read as follows: no

standing for more than one hour per day; alternate sitting, standing, and

walking; no continuous speaking; use of ambulatory aids as needed; minimal

stairs climbing; no extreme temperatures; not to be required to verbally

control resistant behavior in students that persists after an initial warning;

and other position as an academic interventionist or a school counselor.

{¶ 17} As stated above, the district court found that while Johnson had

established a genuine issue of fact as to whether she had a recognized

disability, she failed to establish that she had requested an objectively
 17

reasonable accommodation that the District had refused. See Johnson,

N.D. Ohio No. 1:07-CV-1610 (Feb. 5, 2010). The court determined that

there was no evidence to demonstrate she was denied accommodations

regarding standing, sitting, walking, use of ambulatory aids, minimal stair

climbing, or continuous speaking restrictions. Id. As for the temperature

restrictions, the court noted that there was no actual record of Johnson

asking anyone in authority to address the temperature and climate control

issues after her disability restrictions were amended to include a medical

need for climate control. Id. Moreover, the court determined that, after

January 11, 2007, there was no evidence that Johnson would have been

required to teach in a classroom that was not climate controlled. Id.

Addressing Johnson’s argument that she should have been offered a

small-group or counseling position, the court stated, “[t]here is no evidence

that any doctor has ever indicated that Dr. Johnson could not teach a full

size class provided her other restrictions were met. There is absolutely no

evidence to show that Plaintiff’s disability required an accommodation

assigning her to teach only small groups of students, or assigning her to a

position as a school counselor.” Id.

{¶ 18} Lastly, the court determined that Johnson’s last requested

accommodation — prohibiting Johnson from a position where she would need
 18

to “verbally control resistive students” — was not a reasonable

accommodation for a teacher or a counselor at an elementary or middle

school. Id. The court stated that all teachers and counselors must deal

with students even when misbehaving, and therefore must be “physically,

mentally, and emotionally capable of managing and controlling students in

those circumstances.” Id. Therefore, the district held that the ability to

control, manage, and discipline students is an “essential function” of a

teacher, tutor, or counselor. Any request for an accommodation that does

not require her to do this task is not reasonable, the court said, and insofar

as the doctors agreed she cannot, she is not qualified to perform the function

of teacher or counselor. Id. Therefore, the court dismissed all of Johnson’s

claims for failure to accommodate, and the Sixth Circuit affirmed. See

Johnson, N.D.Ohio No. 1:07-CV-1610 (Feb. 5, 2010); Johnson, 6th Cir. No.

10-3267 (Nov. 15, 2011).

{¶ 19} The district court then addressed Johnson’s claim for

discriminatory discharge. It again found that the claimed restriction

against “verbally controlling” students made Johnson not qualified for her

position. Id. It noted that while Johnson asserted that “yelling and

shouting” are not necessary for her position, the letters submitted from her

doctors did not limit the disability restrictions to “yelling and shouting”;
 19

instead, two doctors put forth restrictions that were “far broader” that refer

“to any form of verbal control, without regard to volume or intensity.” Id.

It is unreasonable to believe that a teacher, counselor, or other
school employee charged with caring for and working with
children can maintain control and discipline among their
students if they cannot “verbally control” students beyond giving
an initial warning. Id.

{¶ 20} The court therefore found that Johnson had proposed no

reasonable accommodation that would allow her to perform the essential

element of discipline, and thus failed to satisfy the qualification element of

her claim. The district court dismissed Johnson’s claim, and the Sixth

Circuit affirmed. Id.; Johnson, 6th Cir. No. 10-3267 (Nov. 15, 2011).

{¶ 21} Thus, based on the outline above, the federal district court

squarely litigated and determined the facts at issue in Johnson’s state cause

of action. Therefore, we conclude that Johnson’s claims are barred by the

doctrine of res judicata, and the trial court’s grant of summary judgment is

affirmed.

{¶ 22} Johnson’s sole assignment of error is overruled.

{¶ 23} The judgment of the trial court is 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 lower court to carry
 20

this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR