Lynch v. Greenwald

[Cite as Lynch v. Greenwald, 2012-Ohio-2479.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

VICTORIA LYNCH, et al. C.A. No. 26083

Appellees

v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALICE J. GREENWALD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV 2009 10 7815

DECISION AND JOURNAL ENTRY

Dated: June 6, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Alice Greenwald (“Mother”), appeals from the judgment of

the Summit County Court of Common Pleas, in favor of Plaintiff-Appellees, Victoria Lynch

(“Daughter”), Jacob Lynch (“Son”), and Melody Lenigar, the executrix for the estate of Steven

Lynch. This Court affirms.

I

{¶2} Mother and Steven Lynch (“Father”) agreed to dissolve their marriage and enter

into a separation agreement in August 2000. The parties purchased a life insurance policy

through Primerica Life Insurance Company (“Primerica”) while they were married, but Father

became the policy’s sole owner at the time of the dissolution. By the terms of the separation

agreement, Mother would remain the designated beneficiary on the policy “for the benefit of

[Daughter and Son], so long as [Father] ha[d] an obligation to support the children.” Further,

Father’s Primerica policy would remain in effect for both Daughter and Son until Son reached 18
 2

years of age and no longer attended high school. Father later was diagnosed with terminal

cancer and died on April 11, 2009. At the time of his death, Daughter was 22 and Son was 16.

{¶3} A dispute over the rightful recipient of the proceeds from Father’s policy arose

after Father’s death. According to Daughter, Father signed a change in beneficiary form before

he died, naming Daughter as the policy beneficiary. According to Mother and Primerica, Father

never submitted a change to Primerica and Mother remained the named beneficiary. Mother

submitted a claim form to Primerica after Father died, and Primerica issued the proceeds of

Father’s policy to Mother. Mother only wrote two checks from the proceeds she received before

Primerica froze the account. Both of the checks benefitted Mother.

{¶4} Daughter, Son, and the executrix of Father’s estate brought suit against Mother

for conversion, unjust enrichment, breach of the separation agreement, and breach of the

fiduciary duties imposed by operation of law pursuant to a constructive trust theory.1 The jury

found in Mother’s favor on the separation agreement claim, but found Mother liable for

conversion, unjust enrichment, breach of fiduciary duty, punitive damages, and attorney fees.

Initially, the jury awarded zero dollars on the conversion claim as well as zero dollars in punitive

damages. The trial judge then instructed the jurors that, if they intended for the plaintiffs to

recover their attorney fees as indicated by one of the interrogatories and one of the general

verdict forms, their zero dollar damage awards might preclude an award of attorney fees. The

trial judge asked the jurors to review their verdict forms and interrogatories again to make sure

they accurately reflected the intent of the jury. The jury then awarded $200,923.41 in damages

1
The complaint also contains a negligence claim and names Primerica and one of its agents as
defendants. We do not discuss any additional claims or parties because those matters were
resolved below and are not relevant to this appeal.
 3

on the conversion claim and $10,000 in punitive damages. Subsequently, the trial court awarded

$70,307.80 in attorney fees for a total award of $281,231.21.

{¶5} Mother now appeals from the trial court’s judgment and raises three assignments

of error for our review.

II

Assignment of Error Number One

IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO
INSTRUCT THE JURY TO RECONSIDER ITS VERDICTS WHERE THE
ORIGINAL VERDICTS WERE VALID AND WHOLLY CONSISTENT WITH
THE JURY INTERROGATORIES.

{¶6} In her first assignment of error, Mother argues that the trial court erred when it

allowed the jury to reconsider its verdict. She argues that the jury’s interrogatories were

consistent with the general verdict and, in the absence of an inconsistency, the court lacked the

authority to resubmit the issues the jury.

{¶7} “Civ.R. 49(B) details the procedures a trial court must follow when the parties

submit interrogatories to go to the jury upon the court’s approval. The purpose of using

interrogatories is to test the general verdict.” Colvin v. Abbey’s Restaurant, Inc., 85 Ohio St.3d

535, 538 (1999). Ideally, the interrogatories will complement the general verdict. Id. If an

inconsistency does exist between the completed interrogatories and general verdict, Civ.R. 49(B)

affords a trial court three options. Specifically, the court may “(1) enter judgment in accordance

with the interrogatory answers, (2) return the jury for further consideration of the interrogatories

and the general verdict, or (3) order a new trial.” Colvin at paragraph one of the syllabus. “The

choice of one of the three options lies within the sound discretion of the trial court.” Id. “Before

the court applies [Civ.R. 49(B)], however, it must be satisfied that apparent inconsistencies

between interrogatory and verdict are not reconcilable.” Capital Control, Inc. v. Sunrise Point,
 4

Ltd., 6th Dist. No. E-03-046 & E-04-008, 2004-Ohio-6309, ¶ 34. “When an interrogatory

response is inconsistent and irreconcilable with the general verdict, * * * ‘the clear, best choice

[is] to send the jury back for further deliberations.’” Segedy v. Cardiothoracic & Vascular

Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 26 (9th Dist.), quoting Shaffer

v. Maier, 68 Ohio St.3d 416, 421 (1994).

{¶8} When the jury first returned after deliberations, the jurors responded “Yes” in

answering both of the following interrogatories:

JURY INTERROGATORY NO. 5[:] Do you find by clear and convincing
evidence that the plaintiffs are entitled to punitive damages from [Mother]?

JURY INTERROGATORY NO. 6[:] If at least six members of the jury answered
“yes” to the previous interrogatory and signed their names on that interrogatory,
are the plaintiffs entitled to recover from [Mother] attorney fees they have
incurred in prosecuting this case?

The jury also completed the general verdict form for attorney fees that provided: “We the jury

find that plaintiffs are entitled to attorney fees.” Nevertheless, the jury awarded plaintiffs zero

dollars in punitive damages. The trial court determined that the interrogatories and the general

verdict were inconsistent because the zero dollar punitive damages award would negate any

award of attorney fees. Accordingly, the trial court asked the jurors to return to the jury room for

further consideration. See Civ.R. 49(B).

{¶9} Mother argues that the court erred by returning the jurors to the jury room because

the interrogatories and general verdict could be reconciled. She avers that a zero dollar award on

punitive damages is not necessarily inconsistent with the jury’s belief that plaintiffs were entitled

to attorney fees. According to Mother, whether plaintiffs would recover attorney fees was a

matter for the trial court to determine at a separate hearing.
 5

{¶10} Initially, we note that Mother did not object when opposing counsel posed the

inconsistency to the court, when the court instructed the jury regarding the inconsistency, or

when the court ordered the jury to return to the jury room. A discussion took place at sidebar

before the court instructed the jury, but the discussion was not recorded. Moreover, when the

judge finished instructing the jury and asked the attorneys if there were any issues before he

returned the jury for further consideration, Mother’s counsel replied in the negative. The record

supports the conclusion that Mother forfeited her objection to the trial court’s determination that

the verdict and the interrogatories were inconsistent. Even so, plain error may lie if the trial

court erroneously concluded an inconsistency existed and returned the jury for further

deliberation in the absence of an actual inconsistency. See Eberly v. A-P Controls, Inc., 61 Ohio

St.3d 27, 36 (1991) (unreliable verdict due to defect in interrogatories “though not objected to,

results in a manifest miscarriage of justice and, as such, constitutes plain error”). We, therefore,

review the trial court’s determination for plain error. See Goldfuss v. Davidson, 79 Ohio St.3d

116 (1997), syllabus (plain error in civil cases defined).

{¶11} Although the amount of attorney fees plaintiffs would receive was not a jury

question, the jury specifically found that plaintiffs were entitled to fees. The jurors made that

finding in both an interrogatory (Interrogatory Number 6) and a general verdict form dedicated to

the award of attorney fees. The jury also determined that plaintiffs were entitled to punitive

damages in an interrogatory (Interrogatory Number 5). Interrogatory Number 5 also instructed

the jurors: “If at least six members of the jury have answered ‘yes’ and signed their names above,

please insert a punitive damages award on the punitive damages verdict form, sign the form, and

proceed to Interrogatory No. 6.” The jurors answered “yes” to the interrogatory, entered a zero
 6

dollar amount on the punitive damages verdict form, and proceeded to complete Interrogatory

No. 6.

{¶12} Apart from the fact that the jury determined in Interrogatory Number 5 that

plaintiffs were entitled to punitive damages and then did not award any punitive damages, the

zero dollar punitive damage award conflicts with the jury’s determination in Interrogatory

Number 6 that plaintiffs were entitled to attorney fees. Any award of attorney fees to plaintiffs

would be contingent upon an award of punitive damages. See K.R.G. Inc. v. Patel, 9th Dist. Nos.

24083 & 24190, 2008-Ohio-5446, ¶ 8-9; Pinkerton v. Thompson, 174 Ohio App.3d 229, 2007-

Ohio-6546, ¶ 23-24. As such, the trial court did not commit plain error when it determined that

the interrogatories and general verdict were inconsistent. See Coffman v. Stoll, 9th Dist. No.

22189, 2005-Ohio-711 ¶ 10 (total verdict award inconsistent with percentage finding of

contributory negligence); Capital Control, Inc., 2004-Ohio-6309, at ¶ 40 (zero damages finding

inconsistent with general verdict award of punitive damages and attorney fees). Mother’s first

assignment of error is overruled.

Assignment of Error Number Two

THE TRIAL COURT ABUSED ITS DISCRETION BY COMMENTING TO
THE JURY ON THE LEGAL BASIS OF PLAINTIFFS’ OBJECTION AND
EXPLAINING TO THE JURY PLAINTIFFS’ POSITION ON A MATTER OF
LAW, WHICH INFLUENCED THE JURY’S RECONSIDERATION AND
PREJUDICED DEFENDANT.

{¶13} In her second assignment of error, Mother argues that the trial court erred when it

addressed the jury regarding the inconsistency between the interrogatories and the verdict. We

disagree.

{¶14} As previously noted, Mother’s counsel did not object at any point during the

discussion about the verdict inconsistency or during the trial court’s comments to the jury.
 7

Accordingly, we review Mother’s argument solely for plain error. See Goldfuss, 79 Ohio St.3d

at syllabus.

When instructing the jury regarding the need to reconcile the interrogatories and
verdict, the trial court must be careful not to suggest or imply that the jury came
to the wrong conclusion. The court should encourage the jury to consider whether
the interrogatory answers represent their true intentions. Ideally, the trial court
will instruct the jury that the interrogatory responses and general verdicts should
be reconciled with each other rather than insisting that they must reconcile them.
The trial court should also make it clear that neither the interrogatories nor the
verdict controls the other, but that the two should be harmonious.

(Internal quotations and citations omitted.) Segedy, 182 Ohio App.3d 768, 2009-Ohio-2460, at ¶

36. “A jury charge must be considered as a whole and a reviewing court must determine whether

the jury charge probably misled the jury in a matter materially affecting the complaining party’s

substantial rights.” Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 376 (2000), quoting

Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208 (1990).

{¶15} When the jurors returned from deliberation, plaintiffs objected to the alleged

inconsistency between the interrogatories and the general verdict. The trial court offered the

following explanation to the jury:

The issue, folks, is that when there was a finding in favor of the plaintiffs on the
issue of punitive damages, but the zero dollar award, counsel is concerned that
that may not permit an award to be made for attorney fees.

A sidebar discussion then took place. After the sidebar discussion, the court further addressed

the jury:

Members of the jury, the Court is going to ask you to briefly return to the jury
room just to give consideration of one, I think, fairly limited issue.

Counsel are concerned that if it was your intent to award attorney fees based on
the finding that you made * * * for the plaintiff for conversion or * * * verdict for
breach of fiduciary duty, that a finding of zero dollars for punitive damages could
make the effort to award attorney fees ineffective. Likewise, the * * * finding for
plaintiff on conversion with the award of zero dollars could be ineffective as well.
 8

So what the Court is going to ask you to do is to give consideration to whether * *
* on the punitive damage interrogatory and verdict form you wished to make a
finding of a specific amount of punitive damages. The Court is not going to
suggest that you should or should not or suggest to you any amount. If you make
the determination to adhere to your finding of zero punitive damages, then do so
with the understanding that one side of the case will be contending that no
attorney fees may be awarded under the circumstances.

Mother argues that the trial court erred in its instruction because: (1) it was inappropriate for the

court to explain the legal issue to the jury, and (2) the judge improperly influenced the jury by

interjecting his own opinion into his comments.

{¶16} In Coffman, this Court considered a trial court’s response to an alleged

inconsistency between a general verdict award and two interrogatories defining the negligence

and contributory negligence percentages of the plaintiff and defendant. Coffman, 2005-Ohio-

711, at ¶ 9-10. After the jury’s second attempt to reconcile the alleged inconsistency:

the judge explained that the total verdict of $492,000 would be reduced by the
amount of the plaintiff's negligence, 35%. In response, the jury foreman
explained that the jury had been unaware of that reduction, and therefore, the
second attempt was not their verdict. The judge dismissed the jury for the
weekend, with instructions that they would reconvene for further deliberations on
the following Tuesday morning.

Id. at ¶ 10. We upheld the trial court’s actions given the inconsistency of the verdict and found

“further deliberations to be a proper and prudent response.” Id.

{¶17} The explanation the trial court gave to the jury in Coffman is no different from the

explanation the trial judge here gave to the jury. The trial court simply explained the legal effect

of the jury’s answers to the jury so that the ultimate verdict could “represent [the jurors’] true

intentions.” Segedy, 182 Ohio App.3d 768, 2009-Ohio-2460, at ¶ 36. The trial court did not

commit plain error when it explained the legal issue to the jurors before returning them to the

jury room for further deliberations. See Coffman at ¶ 9-10.
 9

{¶18} Further, the trial judge did not impose his personal views. The judge explicitly

stated that he was not suggesting whether the jury should or should not change its award. The

judge simply asked the jury to deliberate further in order to ensure that the award accurately

reflected the actual intent of the jurors. “As a whole, it does not appear that the trial judge was

trying to impose [his] will on the jurors.” Perez, 87 Ohio St.3d at 376. Nor does the record

support the conclusion that the court’s comments “affected ‘the basic fairness, integrity, or

public reputation of the judicial process, thereby challenging the legitimacy of the underlying

judicial process itself.’” Id. at 377, quoting Goldfuss, 79 Ohio St.3d at syllabus. Consequently,

Mother’s second assignment of error is overruled.

Assignment of Error Number Three

THE JURY’S AWARD OF PUNITIVE DAMAGES WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS NO
COMPETENT OR CREDIBLE EVIDENCE OF ACTUAL MALICE ON THE
PART OF DEFENDANT ALICE J. GREENWALD.

{¶19} In her third assignment of error, Mother argues that the jury’s punitive damage

award is against the civil manifest weight of the evidence. Specifically, she argues there was

“absolutely no evidence” of actual malice.

{¶20} Before turning to the merits of Mother’s argument, we pause to consider the effect

of the Ohio Supreme Court’s most recent pronouncement on the civil manifest weight standard:

Eastley v. Volkman, Slip Opinion No. 2012-Ohio-2179. The Eastley Court held that “[i]n civil

cases, as in criminal cases, the sufficiency of the evidence is quantitatively and qualitatively

different from the weight of the evidence.” Eastley at paragraph two of the syllabus. The Court

defined the test for sufficiency as the test from State v. Thompkins, 78 Ohio St.3d 380 (1997),

paragraph two of the syllabus. That test recognizes:
 10

“sufficiency” is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law. * * * In essence,
sufficiency is a test of adequacy. Whether the evidence is legally sufficient to
sustain a verdict is a question of law.

(Internal citations omitted.) Thompkins at 386. While a challenge to the weight of the evidence

tests the plaintiff’s burden of persuasion, a challenge to the sufficiency of the evidence asks

whether the plaintiff has met his or her burden of production by proving each element by a

preponderance of the evidence. Eastley at ¶ 19. With the foregoing distinction in mind, we turn

to Mother’s argument.

{¶21} Generally, “an appellant’s assignment of error provides this Court with a roadmap

to guide our review.” Taylor v. Hamlin-Scanlon, 9th Dist. No. 23873, 2008-Ohio-1912, ¶ 12.

Although Mother captions her assignment of error as a challenge to the manifest weight of the

evidence, her argument is that there was “absolutely no evidence” of actual malice. A challenge

premised upon a complete lack of evidence is one that tests the burden of production, not the

burden of persuasion. Consequently, Mother’s argument is that the jury’s punitive damage

verdict is based on insufficient evidence. Even so, given the caption of Mother’s assignment of

error and the fact that the Supreme Court clarified the civil manifest weight standard of review

after Mother filed her brief, we also consider a challenge based on the weight of the evidence.

{¶22} “[P]unitive damages may be awarded in tort cases involving fraud, insult or

malice.” Gilbride v. Fugo, 9th Dist. No. 12312, 1986 WL 3820, *1 (Mar. 26, 1986). “‘Actual

malice’ for these purposes is ‘(1) that state of mind under which a person’s conduct is

characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights

and safety of other persons that has a great probability of causing substantial harm.’” (Emphasis

omitted.) Calmes v. Goodyear Tire & Rubber Co., 61 Ohio St.3d 470, 473 (1991), quoting
 11

Preston v. Murty, 32 Ohio St.3d 334 (1987), syllabus. Punitive damages are not meant to

compensate an injured party. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-

6948, ¶ 97. Rather, punitive damages are awarded for the purpose of punishing and deterring

certain conduct. Id., quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651 (1994).

The party seeking punitive damages bears the burden of proving his entitlement to them by clear

and convincing evidence. Weber v. Obuch, 9th Dist. No. 05CA0048-M, 2005-Ohio-6993, ¶ 37-

40. Clear and convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469 (1954), paragraph three of the syllabus.

{¶23} Melody Lenigar, Father’s sister and the executrix of his estate, testified that

“everything [Father] had was to go to [Daughter] and [Son].” More specifically, Father intended

for Daughter to be the beneficiary on the Primerica policy. Bruce Kline, another family member

of Father’s, also testified that he listened to Father’s plans for his life insurance policy while

visiting Father in the hospital. Father was adamant that he wanted his children to receive

everything he had and stated that he was taking steps to make “sure that b**** doesn’t get my

money from my life insurance.”

{¶24} Daughter testified that she aided Father in organizing his affairs once it became

clear that his time was short. Father executed a power of attorney in favor of Daughter, and she

handled his finances from that point forward. Father informed Daughter that she would be

named the beneficiary on the Primerica policy and that, when Father died, she only needed to

submit a claim. A few days after her Father died, Mother forced a conversation with Daughter

about the proceeds of the policy. According to Daughter, Mother claimed the policy belonged to

her, but offered to give Daughter her half of the proceeds if Daughter allowed Mother to control
 12

Son’s half. When Daughter objected to that arrangement on the basis that it was not what Father

had wanted, Mother stated, “[w]ell, your dad broke the law when he changed the beneficiary.”

Mother later promised that she would allow Daughter to handle the policy and would not

interfere. Daughter tried repeatedly to contact Primerica to submit a claim, but Primerica’s

representatives told Daughter that Primerica’s adjusters had yet to release information about the

policy and to call back in a few days. Daughter later discovered that Mother had submitted a

claim for the policy as the beneficiary and received the policy proceeds once Primerica processed

the claim.

{¶25} Daughter testified that Mother had not used the policy proceeds to aid Daughter

or Son. Daughter worked full-time and requested a forbearance on her student loans so that she

could afford to pay for her apartment and help Son pay for his college tuition. Daughter also

purchased a used car for Son, paid for his car insurance, paid for his phone, and changed

apartments so that she could live with a roommate and reduce her monthly rent. Meanwhile, Son

worked part-time during the school year and full-time in the summer to help with expenses.

Daughter testified that Son could not yet register for his next semester of college because she had

to wait to receive her bonus before she could make a payment on his outstanding tuition and

reduce it to a level that would allow him to register.

{¶26} Son recalled the conversation his Mother had with Daughter shortly after their

Father died. Son testified that Mother claimed ownership of the policy and indicated her desire

to control it. Before Son left Mother’s house to live with his grandparents, he asked Mother if

she would help him pay for college. According to Son, Mother’s “response was always that it

was her money and she could do what she wanted with it.” In addition to college expenses, Son
 13

testified that he needed money to pay for extensive dental work he had not yet been able to

schedule due to the cost involved.

{¶27} Mother testified that she was the policy beneficiary and that Father never

submitted a beneficiary change form to Primerica. According to Mother, she had not used the

proceeds to help Daughter and Son with their expenses because they cut off all contact with her,

or in Son’s case, refused her help. Mother admitted that, by the plain language of her separation

agreement with Father, her designation as the policy beneficiary hinged upon Father’s continued

obligation to pay child support. Even so, when questioned whether the separation agreement

required the policy proceeds to be used solely for the benefit of the children, Mother only agreed:

“that’s the standard legal jargon that was used * * *.” Mother claimed that she contacted

Primerica to process the claim because she did not think that Daughter was knowledgeable

enough to settle Father’s affairs, but she never used any of the proceeds to help Daughter and

Son with their expenses. Mother admitted that she only wrote two checks from the policy

proceeds: one to attempt to purchase a life insurance policy for herself, and one to pay the

retainer for her attorney.

{¶28} The record supports the conclusion that Daughter, Son, and the executrix of

Father’s estate set forth adequate evidence of actual malice. Thompkins, 78 Ohio St.3d at 386.

Mother’s only argument is that there was “absolutely no evidence” that she consciously

disregarded anyone’s rights or caused substantial harm. Yet, both Daughter and Son set forth

evidence that they were struggling financially, Mother knew the insurance proceeds were meant

for them, and Mother never used the proceeds to benefit them. In fact, Mother only ever used

the proceeds to benefit herself. Based on our review of the record, we conclude there is legally

sufficient evidence to support the jury’s punitive damages verdict. Moreover, the jury’s verdict
 14

is not against the manifest weight of the evidence. Unlike a sufficiency review, a weight of the

evidence analysis tests the believability of the evidence. Eastley, Slip Opinion No. 2012-Ohio-

2179, ¶ 12, quoting Thompkins, 78 Ohio St.3d 387.

Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other. It indicates clearly to the jury that the party having the burden of proof will
be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on
its effect in inducing belief.”

(Emphasis sic.) Thompkins at 387. Daughter and Son set forth evidence from which the jury

could have believed that Mother wrongfully kept the insurance proceeds and knowingly failed to

use them to benefit the children. Although Mother claimed that it was not her intention to

misuse the proceeds, the jury was in the best position to gauge the credibility of the witnesses.

State v. Peterson, 9th Dist. No. 25592, 2012-Ohio-250, ¶ 31. We cannot conclude that the jury’s

verdict is against the manifest weight of the evidence. Mother’s third assignment of error is

overruled.

III

{¶29} Mother’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.
 15

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE
FOR THE COURT

CARR, J.
MOORE, J.
CONCUR.

APPEARANCES:

TIMOTHY D. MCKINZIE and KERRY G. FULTON, Attorneys at Law, for Appellant.

JAMES R. RECUPERO and MELISSA S. ULRICH, Attorneys at Law, for Appellees.

SABRINA HAURIN, Attorney at Law, for Appellees.