Primmer v. Healthcare Industries Corp.

[Cite as Primmer v. Healthcare Industries Corp., 2015-Ohio-4104.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

JOHN PRIMMER, : Case No. 14CA29

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
HEALTHCARE INDUSTRIES :
CORPORATION, ET AL.,
: RELEASED: 9/24/2015
Defendants-Appellants.
:
APPEARANCES:

Tucker Ellis L.L.P., Susan M. Audey, Ernest W. Auciello, and Sarah A. Stover,
Cleveland, Ohio, for appellants.

McHugh Fuller Law Group, Michael J. Fuller, Jr. and D. Bryant Chaffin, Hattiesburg,
Mississippi, for appellee.
Harsha, J.
{¶1} John Primmer filed a complaint against the owners and agents of Hickory

Creek Nursing Center in The Plains seeking damages for personal injuries he suffered

while he was a resident. The nursing home responded with a motion to stay

proceedings and compel arbitration based on an arbitration agreement Primmer’s

daughter signed upon his admission to Hickory Creek. The trial court denied the

motion, finding Primmer never signed the arbitration agreement and his daughter lacked

authority under the power of attorney for health care to bind him to arbitrate disputes.

{¶2} Hickory Creek asserts that the trial court erred in denying its motion to

stay proceedings and compel arbitration. In resolving this question of law, we agree with

the trial court’s conclusion that the health care power of attorney did not authorize

Primmer’s daughter to bind him to arbitrate disputes. The applicable Ohio statutory
Athens App. No. 14CA29 2

definitions of “health care” and “health care decision” governing powers of attorney for

health care and the interpretation of similar issues by foreign jurisdictions support the

conclusion that a decision to waive the right to litigate in favor of arbitration is legal in

nature rather than being a health care decision. Furthermore, the mere fact that

Primmer’s daughter signed other admission documents on his behalf at the same time

she signed the arbitration agreement did not vest her with apparent authority; Primmer

himself did not engage in any negotiations concerning admission or arbitration. And he

was incompetent at the time so he would not have knowingly permitted his daughter to

act on his behalf when she executed the arbitration agreement. Therefore, we overrule

Hickory Creek’s assignment of error and affirm the judgment of the trial court.

II. FACTS

{¶3} In August 2012, Primmer used a form entitled “VA Advance Directive:

Durable Power of Attorney for Health Care and Living Will,” to appoint his daughter,

Pamela McCathern, to “make decisions about [his] health care” if he “cannot make

those decisions.” The form specified that it “is an official document where you can write

down your preferences about your medical care” and “[i]f someday you become unable

to make health care decisions for yourself, this advance directive can help guide the

people who will make decisions for you.” The form further noted that it permitted the

principal “to appoint a specific person to make health care decisions for you in case you

become unable to make decisions for yourself” and if the person became “too ill to

make decisions for yourself, your Health Care Agent will have the authority to make

health care decisions for you, including decisions to admit you to and discharge you

from any hospital or health care institution.” The form also stated that “[y]our Health
Athens App. No. 14CA29 3

Care Agent can also decide to start or stop any type of clinical treatment, and can

access your personal health information, including information from your medical

records.” The power of attorney included no definition of “health care,” but both

Primmer and his daughter were residents of Ohio at the time they executed it.

{¶4} At some point after executing the durable power of attorney, Primmer was

no longer competent to handle his own affairs because his cognitive and physical skills

were impaired. In November of 2012, McCathern signed an agreement admitting her

father into the Hickory Creek Nursing Center. He remained a resident there until

January 2013. On the same date that she signed the admission agreement, McCathern

signed several other documents, including an arbitration agreement. That agreement

provides for the waiver of the resident’s right to a trial in court or a trial by jury for any

legal claims against the nursing home and for final and binding arbitration of any claim

arising out of the admission agreement, including all claims based on breach of

contract, negligence, medical malpractice, tort, breach of statutory duty, and resident’s

rights. The agreement emphasized that “[a]greeing to arbitrate legal disputes is not a

condition of admission, and care and treatment will be provided whether or not they

agree to arbitrate (if they do not wish to sign this Agreement then they are under no

requirement to do so).”

{¶5} After leaving the facility Primmer filed a complaint in the Athens County

Court of Common Pleas against 51 The Plains, Inc. dba Hickory Creek Nursing Home,

BCFL Management, Inc., BCFL Holdings, Inc., dba Provider Services, Inc., Provider

Services, Inc., and Dave Miller (collectively “Hickory Creek”). In his subsequently

amended complaint Primmer raised multiple claims, including negligence, medical
Athens App. No. 14CA29 4

malpractice, and premises liability related to personal injuries and damages he allegedly

suffered while a resident at the nursing home.

{¶6} Hickory Creek filed a motion to stay proceedings and compel arbitration

based on the arbitration agreement Primmer’s daughter signed on his behalf and the

power of attorney for health care Primmer executed appointing his daughter as his

health care agent. The matter proceeded to a hearing where Cathy Hunter, the Hickory

Creek Director of Social Work, testified that she considered the arbitration agreement to

be a health care decision, but she conceded that it did not have any impact on the care

and treatment that Primmer received, regardless of whether he had signed it. In a

detailed decision the trial court denied the motion based on the language of the power

of attorney for health care, Ohio statutory provisions governing health care powers of

attorney, and cases from other jurisdictions addressing the issue. The trial court also

rejected Hickory Creek’s alternative claim based on McCathern’s apparent authority.

This appeal ensued.1

II. ASSIGNMENT OF ERROR

{¶7} Hickory Creek assigns the following error for our review:

The trial court erred in denying Defendants-Appellants’ Motion to Stay
Proceedings and Compel Arbitration.

III. STANDARD OF REVIEW

{¶8} We have held that in general “[a]n appellate court reviews a trial court’s

decision to grant or deny a motion to compel arbitration or stay the proceedings under

the abuse of discretion standard.” Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No

1“R.C. 2711.02(C) permits a party to appeal a trial court order that grants or denies a stay of trial pending
arbitration, even when the order makes no determination pursuant to Civ.R. 54(B).” Mynes v. Brooks,
124 Ohio St.3d 13, 2009-Ohio-5946, 918 N.E.2d 511, syllabus.
Athens App. No. 14CA29 5

12CA827, 2013-Ohio-693, ¶ 12, citing K.M.P., Inc. v. Ohio Historical Society, 4th Dist.

Jackson No. 03CA2, 2003-Ohio-4443, ¶ 14. Nevertheless, “ ‘[a] trial court’s decision

granting or denying a stay of proceedings pending arbitration is * * * subject to de novo

review on appeal on issues of law, which will commonly predominate because such

cases generally turn on issues of contractual interpretation * * *.’ ” McFarren v.

Emeritus at Canton, 2013-Ohio-3900, 997 N.E.2d 1254, ¶ 13 (5th Dist.), quoting

Hudson v. John Hancock Fin. Servs., 10th Dist. Franklin No. 06AP-1284, 2007-Ohio-

6997, ¶ 8; see also Duncan v. Wheeler, 4th Dist. Scioto No. 09CA3296, 2010-Ohio-

4836, ¶ 5 (in appeal from denial of motion to stay proceedings and to compel arbitration,

we observed that “appellate courts employ a de novo standard when reviewing a trial

court’s interpretation of contract provisions, including arbitration provisions”); see also

Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d

12, ¶ 37 (rejecting an abuse-of-discretion standard of review and applying a de novo

standard of review in reviewing decision granting motion to stay litigation and compel

arbitration when the underlying issue was whether the arbitration provision was

unenforceable because of alleged unconscionability).

{¶9} The issue here is a legal one, i.e. whether the health care power of

attorney Primmer executed authorized his health care agent, his daughter, to bind him

to the nursing home’s arbitration agreement. The answer to that question is dependent

upon our interpretation of the written instruments, applicable statutes, and case law.

Therefore, we review the trial court’s decision using a de novo standard of review.

IV. LAW AND ANALYSIS

A. Health Care Power of Attorney
Athens App. No. 14CA29 6

{¶10} In its sole assignment of error Hickory Creek asserts that the trial court

erred in denying its motion to stay proceedings and compel arbitration. “Both the Ohio

General Assembly and Ohio courts have expressed a strong public policy favoring

arbitration.” Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d

408, ¶ 15, citing R.C. Chapter 2711 and Taylor at ¶ 27. Arbitration is favored because it

provides an expeditious and economical means of resolving a dispute and has the

added benefit of lessening the burden on crowded court dockets. Hayes at ¶ 15.

{¶11} R.C. 2711.02(B) provides for the enforcement of an arbitration agreement

when a party requests a stay of litigation pending arbitration:

If any action is brought upon any issue referable to arbitration under an
agreement in writing for arbitration, the court in which the action is
pending, upon being satisfied that the issue involved in the action is
referable to arbitration under an agreement in writing for arbitration, shall
on application of one of the parties stay the trial of the action until the
arbitration of the issue has been had in accordance with the agreement,
provided the applicant for the stay is not in default in proceeding with
arbitration.

{¶12} “In light of the strong presumption favoring arbitration, all doubts should be

resolved in its favor.” Hayes at ¶ 15. This presumption applies equally to arbitration

agreements between nursing home residents and nursing homes. Id. But, “despite the

presumption favoring arbitration, a party cannot be compelled to arbitrate a dispute in

which they have not agreed to submit to arbitration.” McFarren, 2013-Ohio-3900, 997

N.E.2d 1254, at ¶ 16, citing Council of Smaller Ents. v. Gates, McDonald & Co., 80 Ohio

St.3d 661, 687 N.E.2d 1352 (1998).

{¶13} Primmer did not personally sign the arbitration agreement with Hickory

Creek so the dispositive legal issue is whether his daughter had authority to do so.

Hickory Creek claims that Primmer’s daughter expressly had authority to sign the
Athens App. No. 14CA29 7

arbitration agreement on behalf of Primmer through the power of attorney for health

care and impliedly through her apparent authority.

{¶14} “ ‘A power of attorney * * * is a written instrument authorizing an agent to

perform specific acts on behalf of the principal.’ ” Cartwright v. Batner , 2014-Ohio-

2995, 15 N.E.3d 401, ¶ 67 (2d Dist.), quoting In re Guardianship of Simmons , 6th Dist.

Wood No. WD-02-039, 2003-Ohio-5416, ¶ 25. Primmer executed a power of attorney

for health care that appointed his daughter, McCathern, as his agent to “make decisions

about [his] health care if there ever comes time when [he] cannot make those

decisions.” The instrument contained no definition of “health care” or “decisions about

health care,” but indicated that the types of decisions the appointed agent could make

included “decisions to admit [him] to and discharge [him] from any hospital or other

health care institution.”

{¶15} In Ohio durable powers of attorney for health care are governed by R.C.

1337.11 to 1337.17. 2 Carlin, Baldwin’s Ohio Practice Merrick-Rippner Probate Law,

Section 61:17 (2014). “An attorney in fact under a durable power of attorney for health

care shall make health care decisions for the principal only if the instrument

substantially complies with section 1337.12 of the Revised Code and specifically

authorizes the attorney in fact to make health care decisions for the principal, and only if

the attending physician of the principal determines that the principal has lost the

capacity to make informed health care decisions for the principal.” R.C. 1337.13(A)(1).

“An adult who is of sound mind may create a valid durable power of attorney for health

care * * *.” R.C. 1337.12(A)(1).
Athens App. No. 14CA29 8

{¶16} Durable powers of attorney for health care in Ohio are effective for “health

care decisions,” which are defined in R.C. 1337.11(H) as “informed consent, refusal to

give informed consent, or withdrawal of informed consent to health care”; “health care”

is defined in R.C. 1337.11(G) as “any care, treatment, service, or procedure to maintain,

diagnose, or treat an individual’s physical or mental condition or physical or mental

health.” Courts must give effect to the unambiguously expressed intent of the General

Assembly. Cleveland Clinic Foundation v. Cleveland Bd. of Zoning Appeals, 141 Ohio

St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 29. Under their plain and unambiguous

meaning, these statutory terms do not apply to decisions to submit disputes between

nursing homes and their patients to binding arbitration. That is, a decision to arbitrate a

dispute is not a decision on informed consent to care, treatment, service, or procedure

to maintain, diagnose, or treat the patient’s physical or mental health or condition.

Indeed, Hickory Creek does not specifically argue otherwise on appeal-it does not claim

that the plain language of R.C. 1337.11(G) and (H) requires a different result.

{¶17} Instead, Hickory Creek claims that the trial court erred in failing to apply

Ohio precedent that it contends “inferred” the validity of arbitration agreements executed

by an attorney-in-fact for health care decisions. It cites McFarren, 2013-Ohio-3900, 997

N.E.2d 1254, and Tedeschi v. Atrium Centers, L.L.C., 8th Dist. Cuyahoga No. 97647,

2012-Ohio-2929, in support of its claim. In McFarren, the court held that a nursing

home resident’s grandson, who had a power of attorney for health care for the resident,

lacked authority to bind the resident to an arbitration agreement he signed on her behalf

because there was no evidence that she was unable to make informed health care

decisions for herself at that time. In Tedeschi the court similarly held that the daughter
Athens App. No. 14CA29 9

of a nursing home resident who had a power of attorney for health care could not bind

the resident by signing an arbitration agreement because there was no determination

that the resident had lost the capacity to make informed health care decisions for

herself. Hickory Creek is correct that these decisions did not question or otherwise find

that the arbitration agreements were unenforceable because their execution did not

constitute a health care decision. But this argument acknowledges that these cases did

not address the issue before us because they did not need to. Consequently, they are

inapposite here.

{¶18} We hold that the terms of this health care power of attorney do not

encompass decisions to waive trial by jury or the court in favor of arbitration. Although

not defining “health care decisions,” the instrument specified that the decisions included

“decisions to admit you to and discharge you from any hospital or health care

institution.” Under the plain terms of the arbitration agreement Primmer’s daughter

signed, “[a]greeing to arbitrate legal disputes” was “not a condition of admission, and

care and treatment will be provided whether or not they agree to arbitrate.” The fact

that execution of the arbitration agreement was not necessary for admission was

confirmed by the uncontroverted testimony of Hickory Creek’s Director of Social Work,

who conceded that the arbitration agreement had no impact on the medical care and

treatment that Primmer received at the nursing home. Consequently, the plain

language of the power of attorney for health care and arbitration agreement supports

the trial court’s legal conclusion that the arbitration agreement is not a health care

decision that Primmer’s daughter was authorized to make.
Athens App. No. 14CA29 10

{¶19} And, as the trial court noted in its thorough analysis, cases from other

jurisdictions addressing this issue support that conclusion. In Dickerson v. Maryland,

414 Md. 419, 444-448, 995 A.2d 721 (2010) (footnotes omitted), the Court of Appeals

for Maryland held that a decision to enter into an arbitration agreement that is not a

condition to admission to a health care facility is not a health care decision to which a

health care agent could bind the patient:

* * * Quite obviously, the decision to sign an arbitration agreement is not,
in and of itself, a health care decision. It may sometimes be related to a
health care decision, as in the present case where the arbitration
agreement was included with the admissions documents for a health care
facility and would require arbitration of health care claims. Subject to the
limitations we discuss below, however, the decision to sign an arbitration
agreement is a decision concerning the legal rights of the parties to the
agreement about how to resolve their legal disputes, not a health care
decision.

Although we have never addressed this issue, other courts have drawn a
distinction between a health care decision and a decision to sign an
arbitration agreement, even where the arbitration agreement is related to a
health care decision. In several cases involving health care facilities, the
intermediate appellate courts in Colorado, Florida, Georgia, and Texas
have concluded that the authority to make health care decisions on
another's behalf does not constitute authority to sign an arbitration
agreement on that person's behalf. See Lujan v. Life Care Ctrs. of Am.,
222 P.3d 970, 973-76 (Colo.Ct.App.2009) (agreeing with other
jurisdictions that have concluded that " a health care proxy's decision to
agree to arbitrate is [not] a medical treatment decision" ); Blankfeld v.
Richmond Health Care, Inc., 902 So.2d 296, 301 (Fla.Ct.App.2005) ("
There is nothing in the [health care proxy] statute to indicate legislative
intent that such a proxy can enter into contracts which agree to things not
strictly related to health care decisions. In our opinion, a proxy is not
authorized to waive the right to trial by jury...." ); Life Care Ctrs. of Am. v.
Smith, 298 Ga.App. 739, 681 S.E.2d 182, 185 (2009) (concluding that a "
health care power of attorney did not give [a daughter] the power to sign
away her mother's or her mother's legal representative's right to a jury
trial" ); Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 352
(Tex.Ct.App.2007) (" [N]othing in the medical power of attorney indicates
that it was intended to confer authority ... to make legal, as opposed to
health care, decisions ..., such as whether to waive [the] right to a jury trial
by agreeing to arbitration of any disputes." ). Those courts drew a
Athens App. No. 14CA29 11

distinction between making health care decisions and the decision to sign
an arbitration agreement, even when an arbitration agreement is related to
health care.

In our view, however, there are circumstances upon which the decision to
sign an arbitration agreement may be a health care decision. Courts in
other jurisdictions have recently concluded that the decision to sign an
arbitration agreement was not a health care decision, and they based that
decision on the fact that signing the arbitration agreement was not a
prerequisite to admission to a health care facility. In Koricic, as we noted
earlier, the Supreme Court of Nebraska concluded that a son who had
authority to sign health care documents on behalf of his mother did not
have authority to sign an arbitration agreement on her behalf. 773 N.W.2d
at 149-52. In reaching that decision, the court explained that the decision
to sign the arbitration agreement was not within the son's authority
because the agreement " was optional and was not required for [the
mother] to remain at the [nursing home] facility." Id. at 151. Similarly, the
Supreme Court of Mississippi concluded in Hinyub that the decision to
sign an arbitration agreement is not a " health care decision" where the
patient or his agent " was not required to sign the arbitration provision to
admit [the patient] to the [health care facility]." 975 So.2d at 218. The
Mississippi court drew a distinction between Hinyub's case and previous
cases in which " the arbitration provision was an essential part of the
consideration for the receipt of ‘ health care.’ " Id. (citing Covenant Health
Rehab of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss.2007), and [995
A.2d 739] Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507
(Miss.2005)).

We agree with the reasoning of those courts. The decision to sign a free-
standing arbitration agreement is not a health care decision if the patient
may receive health care without signing the arbitration agreement. In such
a case, the decision primarily concerns the legal rights of the patient with
respect to resolving legal claims. If signing the arbitration agreement is
necessary to receive health care, then the decision to sign the agreement
is a health care decision because the receipt of health care depends on
whether the patient agrees to arbitrate his or her claims. In that case, the
decision to sign the arbitration agreement is effectively a decision about
where and whether to receive health care, either from a facility that
requires the patient to sign an arbitration agreement, from a facility that
does not impose such a requirement, or from no facility at all.

{¶20} As the Supreme Judicial Court of Massachusetts recently held, the

“conclusion that a health care agent does not have the authority to bind the principal to

an arbitration agreement comports with the view of a majority of courts in other
Athens App. No. 14CA29 12

jurisdictions that have considered similar issues.” Johnson v. Kindred Healthcare, Inc.,

466 Mass 779, 789-790, 2 N.E.3d 849 (2014); see also State ex rel. AMFM, LLC v.

King, 740 S.E.2d 66 (W.Va.2013), paragraph eight of the syllabus (“An agreement to

submit future disputes to arbitration, which is optional and not required for the receipt of

nursing home services, is not a health care decision under the West Virginia Health

Care Decisions Act, W.Va.Code § 16-30-1 et seq”).

{¶21} Based on the plain language of the instruments and statutes governing

durable powers of attorney for health care in Ohio, as well as the persuasive authority of

other jurisdictions addressing the same issue, we hold that this durable power of

attorney for health care does not authorize McCathern to waive Primmer’s rights of

access to courts and to compel arbitration. In other words, under these facts the

decision to waive the right to arbitrate is a legal determination, not a health care

decision. The trial court ruled correctly on this issue.

B. Apparent Authority

{¶22} Hickory Creek also argues that it was entitled to a stay of proceedings and

compelled arbitration because of McCathern’s apparent authority to act on behalf of her

father.

{¶23} “In order for a principal to be bound by the acts of his agent under the

theory of apparent agency, evidence must affirmatively show: (1) that the principal held

the agent out to the public as possessing sufficient authority to embrace the particular

act in question, or knowingly permitted him to act as having such authority, and (2) that

the person dealing with the agent knew of those facts and acting in good faith had

reason to believe and did believe that the agent possessed the necessary authority.”
Athens App. No. 14CA29 13

Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 575 N.E.2d 817

(1991), syllabus.

{¶24} The only evidence of Primmer’s actions here regarding his daughter’s

authority was his execution of the durable health care power of attorney. But as we

already decided, his power of attorney for health care did not authorize his daughter to

enter into the arbitration agreement because it did not constitute a health care decision

under the plain language of the instrument and statutory provisions.

{¶25} In addition there is no evidence that Primmer was present when his

daughter signed the admission and other documents, including the arbitration

agreement, or that he otherwise held her out to be authorized to enter into the

arbitration agreement on his behalf. Nor did Hickory Creek have a reasonable belief

that Primmer’s daughter was so authorized. See State ex rel. AMFM, LLC, 740 S.E.2d

66, at fn. 10 (“To the extent that McDowell Nursing believed that Ms. Belcher’s authority

extended to the making of other, non-health care decisions, its belief was not

reasonable in light of the explicit limitation of Ms. Belcher’s power as a health care

surrogate to the making of health care decisions on Ms. Wyatt’s behalf and its own

concession that the subject Arbitration Agreement was not a precondition for Ms.

Wyatt’s receipt of services”).

{¶26} The mere fact that Primmer’s daughter signed other documents as part of

the admission process did not cloak her with the requisite apparent authority to bind

Primmer to an arbitration agreement that he knew nothing about. See Lang v.

Beachwood Pointe Care Ctr., 8th Dist. Cuyahoga No. 100109, 2014-Ohio-1238, ¶ 6,

appeal not accepted for review, 140 Ohio St.3d 1415, 2014-Ohio-3785, 15 N.E.3d 884.
Athens App. No. 14CA29 14

Hickory Creek’s reliance on Primmer’s daughter’s actions in signing other admission

documents is misplaced because a claim of apparent authority cannot be based on her

acts. “Under an apparent-authority analysis, an agent's authority is determined by the

acts of the principal rather than by the acts of the agent. The principal is responsible for

the agent's acts only when the principal has clothed the agent with apparent authority

and not when the agent's own conduct has created the apparent authority.” Ohio State

Bar Assn. v. Martin, 118 Ohio St.3d 119, 2008-Ohio-1809, 886 N.E.2d 827, ¶ 41.

{¶27} Moreover, at the time his daughter signed the arbitration agreement,

Primmer could not have knowingly permitted her to act on his behalf because he was

incompetent to conduct his own affairs.

{¶28} Therefore, the trial court correctly denied Hickory Creek’s alternate claim

that Primmer’s daughter had apparent authority to enter into the arbitration agreement

on his behalf. We overrule Hickory Creek’s assignment of error.

V. CONCLUSION

{¶29} After a de novo review of the issues, we hold that the trial court correctly

denied Hickory Creek’s motion to stay proceedings and compel arbitration. Primmer’s

daughter was not authorized under the health care power of attorney to waive his right

to access to courts and agree to binding arbitration. And she lacked the apparent

authority to enter into the arbitration agreement on his behalf. Having overruled Hickory

Creek’s sole assignment of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Athens App. No. 14CA29 15

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
McFarland, A.J.: Dissents.

For the Court

BY: ________________________________
William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.