State v. Spellacy

[Cite as State v. Spellacy, 2019-Ohio-785.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 106909

STATE OF OHIO

PLAINTIFF-APPELLANT

vs.

THOMAS K. SPELLACY

DEFENDANT-APPELLEE

JUDGMENT:
REVERSED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-623580-A

BEFORE: Keough, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: March 7, 2019
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Andrew T. Gatti
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

John L. Reulbach
14701 Detroit Avenue, Suite 575
Lakewood, Ohio 44107

KATHLEEN ANN KEOUGH, J.:

{¶1} Appellant, the state of Ohio, appeals the trial court’s decision granting

defendant-appellee, Thomas K. Spellacy’s, motion to suppress. For the reasons that follow, we

reverse and remand for further proceedings.

{¶2} In November 2017, Olmsted Falls Police Officer Dennis McDonald initiated a

traffic stop of a vehicle driven by Spellacy after Spellacy twice flashed his high-beam headlights

while stopped at a traffic light. As a result of the stop, Spellacy was named in a one-count

indictment charging him with operating a vehicle while under the influence (“OVI”), in violation

of R.C. 4511.19(A)(1)(a). The charge was elevated to a third-degree felony because of a prior

conviction for OVI, in violation of R.C. 4511.19(A)(1), on August 1, 2012. Spellacy was also

cited for failure to dim headlights in violation of R.C. 4513.15(A)(1).
 {¶3} Spellacy filed a motion to suppress, contending that the police officer did not have

reasonable suspicion that a traffic offense occurred, to warrant the traffic stop. According to

Spellacy, the two momentary flickers of his high-beam headlights while stopped at a traffic light

did not violate the plain language of R.C. 4513.15(A)(1).

{¶4} Officer McDonald was the sole witness at the suppression hearing but the facts are

not in dispute. On November 23, 2017, at approximately 7:51 p.m., Officer McDonald was

seated in his parked police cruiser at a Sunoco gas station parking lot at the intersection of

Columbia and Cook Roads. Officer McDonald testified that he was observing northbound and

southbound traffic on Columbia Road and traffic entering the intersection from Cook Road.

{¶5} While observing traffic, Officer McDonald noticed four or five cars traveling

southbound on Columbia Road stop at the red light at the intersection. He also observed traffic

approaching northbound on Columbia Road stop at the traffic light. One of the northbound

vehicles pulled into the left turn lane, while a second northbound vehicle pulled into the

northbound curb lane. A few seconds after traffic had stopped in the southbound lane, Officer

McDonald observed the second vehicle back activate its high-beam lights momentarily and then

dim them. The traffic light changed, and traffic from Cook Road began to move through the

intersection. The same vehicle once again activated its high-beam lights and turned them off.

The time frame between the two flashes of high-beam lights was approximately 14 seconds.

The driver of the vehicle in question was later identified as Spellacy.

{¶6} Thereafter, the light for the north and southbound traffic changed to green and traffic

proceeded through the intersection. Spellacy turned right onto Cook Road, heading westbound.

At this time, Officer McDonald activated his overhead lights in order to initiate a traffic stop.

The officer’s dash-cam video corroborated his testimony.
 {¶7} Officer McDonald testified that he initiated the traffic stop “[t]o determine why the

driver was flashing his lights at not only the vehicle in front of him, but into oncoming traffic.”

(Tr. 29.) He stated that he believed Spellacy had violated the headlight statute, which he

understood as precluding drivers from “driving with [their] brights on.” (Tr. 30.) Officer

McDonald testified that when he initiated the traffic stop he only intended to give the driver a

warning not to flash his bright lights while in traffic “because it was harming the traffic in front

of him, also the traffic that was approaching him, his location.” (Tr. 29-30.)

{¶8} However, when Officer McDonald approached the driver of the vehicle, he smelled

a strong odor of alcohol and the driver had glassy eyes. After Spellacy refused to submit to any

alcohol-detection tests, he was arrested and cited for OVI, in violation of R.C. 4511.19, and the

traffic infraction of failure to dim headlights, in violation of R.C. 4513.15.

{¶9} On cross-examination, Officer McDonald admitted that Spellacy’s vehicle was not

in motion when he activated his high-beam lights, and that the vehicles facing toward Spellacy’s

vehicle were also stationary when he flashed his high-beam headlights. He further admitted that

the flicker of the high beams lasted only for a second each time.

{¶10} In granting Spellacy’s motion to suppress, the trial court specifically found that

Spellacy was stopped at the traffic light when he flashed his high beams; thus he was “not

approaching” oncoming traffic. Additionally, the trial court found that Spellacy did not continue

to use his high beams upon proceeding through the intersection. Accordingly, the trial court, in

its written opinion that was read in open court, found that “the facts relied upon by the officer

were insufficient to establish a reasonable suspicion that a violation of the [law] occurred.” (Tr.

73.)
 {¶11} The state appealed pursuant to App.R. 12(K), raising as its sole assignment of error

that the trial court erred in granting Spellacy’s motion to suppress.

{¶12} Appellate review of a trial court’s ruling on a motion to suppress evidence presents

a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. During a hearing on a motion to suppress evidence, the trial judge acts as the

trier of fact and, as such, is in the best position to resolve factual questions and assess the

credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). An

appellate court reviewing a motion to suppress is bound to accept the trial court’s findings of fact

where they are supported by competent, credible evidence. State v. Guysinger, 86 Ohio App.3d

592, 594, 621 N.E.2d 726 (4th Dist.1993). Accepting these facts as true, the appellate court

independently reviews the trial court’s legal determinations de novo. State v. Djisheff, 11th Dist.

Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶ 19.

{¶13} It is well established that an officer may stop a motorist upon his or her observation

that the vehicle in question violated a traffic law. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12,

665 N.E.2d 1091 (1996). “[E]ven a de minimis traffic violation provides probable cause for a

traffic stop.” Id. at 9. “‘Trial courts determine whether any violation occurred, not the extent

of the violation.’” Cleveland v. Martin, 2018-Ohio-740, 107 N.E.3d 809 (8th Dist.), quoting

State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶ 27 (7th Dist.).

Moreover, an officer is not required to prove the suspect committed an offense beyond a

reasonable doubt or even satisfy the lesser standard of probable cause to believe that the

defendant violated the law. Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074

(8th Dist.1997).
 {¶14} To conduct a constitutionally valid investigatory stop, a police officer must be able

to point to specific and articulable facts that, taken together with rational inferences derived from

those facts, give rise to a reasonable suspicion that the individual has committed, is committing,

or is about to commit a crime. State v. Williams, 51 Ohio St.3d 58, 60, 554 N.E.2d 108 (1990).

The propriety of an investigative stop by a police officer must be viewed in light of the totality of

the circumstances. State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph

one of the syllabus.

{¶15} In this case, Officer McDonald initiated a traffic stop and issued a citation for

violating R.C. 4513.15, which provides in relevant part:

(A) Whenever a motor vehicle is being operated on a roadway or shoulder
adjacent thereto during the times specified in section 4513.03 of the Revised
Code, the driver shall use a distribution of light, or composite beam, directed high
enough and of sufficient intensity to reveal persons, vehicles, and substantial
objects at a safe distance in advance of the vehicle, subject to the following
requirements;

(1) Whenever the driver of a vehicle approaches an oncoming vehicle, such driver

shall use a distribution of light, or composite beam, so aimed that the glaring rays

are not projected into the eyes of the oncoming driver.

{¶16} On appeal, the state argues that the trial court erred in granting the motion to

suppress because Officer McDonald had a reasonable and articulable suspicion that Spellacy

violated a traffic offense to warrant the traffic stop. Specifically, the state contends that under

the totality of the circumstances, Spellacy’s two separate acts of briefly activating his high-beam

lights were sufficient to justify the traffic stop. Alternatively, the state contends that even if

Spellacy did not violate R.C. 4513.15, Officer McDonald had an objectively reasonable belief,

although mistaken, that a traffic violation occurred, thus constituting reasonable suspicion to
justify a traffic stop. Moreover, the state claims that even if the stop was not justified, the trial

court failed to consider the good-faith exception to the exclusionary rule.

{¶17} Spellacy contends that no traffic violation occurred because (1) his vehicle was

stationary; (2) there were no oncoming vehicles; and (3) no testimony was presented that the

headlights glared into the eyes of an oncoming driver. In support, Spellacy cites to State v.

Woods, 86 Ohio App.3d 423, 621 N.E.2d 523 (4th Dist.1993), and Kaplysh, 118 Ohio App.3d at

20, 691 N.E.2d 1074, for the proposition that a momentary flicker of high-beam headlights does

not constitute a violation of R.C. 4513.15, and thus is insufficient to constitute reasonable

suspicion to justify a traffic stop. Accordingly, Spellacy maintains that the officer could not

have had a reasonable or articulable suspicion that he violated a traffic offense and therefore, the

trial court was correct in suppressing the traffic stop. Furthermore, Spellacy maintains that any

purported mistake of law was not objectively reasonable because R.C. 4513.15 is clear,

unambiguous, and has been scrutinized under appellate review.

{¶18} In Woods, the Fourth District held that the officers lacked a legal justification for a

traffic stop when Woods was operating her vehicle with its high beams on while rounding a

curve, but immediately activated her low beams when the oncoming vehicle came in view. The

court determined that Woods’s high beams, as with any driver’s, would be activated for a

moment when the approaching car came into view before she could activate her low beams. The

court determined that the “momentary flick onto high beam followed immediately by a return to

low beam cannot be elevated to a violation of R.C. 4513.15.” Id. at 426. The court stated that

suppression of the stop should have been granted because Woods’s conduct did not violate the

law — “nothing to show there was conduct that the statute was designed to prevent, i.e., glaring

rays projected into the eyes of an oncoming driver.” Id. at 425.
 {¶19} In Kaplysh, this court distinguished Woods by concluding that the officer observed

the defendant use his high beams continuously, for at least a minute, unlike in Woods, which

involved only a momentary flicker of high beams. In Kaplysh, evidence showed that the officer,

who was seated in his stopped vehicle, observed a vehicle with its high beams on driven by

Kaplysh approaching an intersection. The vehicle stopped behind another vehicle, and when the

traffic light changed from red to green, Kaplysh proceeded through the intersection and switched

to low beam headlights. The officer testified that he observed the bright lights on Kaplysh’s

vehicle for at least a minute and had to squint because of the intensity of the lights. The officer

concluded that Kaplysh violated the Westlake ordinance requiring drivers to dim their headlights

when they approached oncoming vehicles. The officer conducted a traffic stop, discovered

Kaplysh to be under the influence of alcohol, and arrested him. Kaplysh filed a motion to

suppress, contending that the officer did not have sufficient grounds to justify the warrantless

stop. The trial court agreed.

{¶20} In a split decision, this court concluded that “a driver violates the ordinance by

continuing to use the high-beam headlights of his vehicle ‘upon approaching’ such traffic. The

ordinance requires the driver to shift to the low beam lights at the latest when the glaring rays

project into the eyes of an oncoming driver.” Id. at 20.

{¶21} However, this court specifically rejected the argument that the officer’s stationary

car was not “oncoming,” finding that “[t]his argument ignores the fact that [the officer], as well

as the vehicle in front of his, was moving immediately prior to stopping at the traffic light as

defendant approached from the opposite direction.” Id. at 21. This court found that “the

evidence was sufficient to establish, at a minimum, a reasonable suspicion that the defendant

drove with his high beams illuminated in violation of the ordinance.”
 The purpose of the ordinance is to promote safety by preventing any unnecessary
visual impairment resulting from the glare of high beams — an impairment that
could affect a driver whether he be moving at a high speed on a country road or
about to stop or start up at an intersection, where pedestrians are likely to cross.
The trial court was mistaken when it interpreted the ordinance as not requiring
lights to be dimmed until a car passes an oncoming vehicle. As Woods correctly
saw, that glare occurs much earlier and so does the obligation to lower one’s
beams.

Id. at 21.

{¶22} In further addressing the notion of an “oncoming driver,” the First District held that

the use of high-beams, although continuously, did not violate R.C. 4513.15 because the

offending vehicle was not “approaching an oncoming vehicle.” State v. Howell, 1st Dist.

Hamilton No. C-170158, 2018-Ohio-591. The Howell defendant was stopped because she was

driving with her high beams activated while following a state trooper. Upon conducting the

stop, the officer discovered that she was under the influence of alcohol. The First District

concluded that the officer did not have reasonable suspicion to justify the stop because the

vehicle using the high beams must be approaching an oncoming vehicle, not following behind

the vehicle while using the high beams. The court also summarily rejected the argument that the

officer’s mistake of law was reasonable because the court stated that the headlight law was

unambiguous and thus, there could be no mistake of law.

{¶23} Despite the First District’s finding that the headlight statute is clear and

unambiguous, the Second District in State v. Fickert, 2d Dist. Clark No. 2018-CA-15,

2018-Ohio-4349, addressed the same headlight statute and found that the officer’s mistake of law

was reasonable. In Fickert, the officer initiated a traffic stop after Fickert flashed her “brights”

at him shortly before passing him while traveling in the opposite direction. The traffic stop

resulted in Fickert’s arrest for OVI. The trial court granted Fickert’s motion to suppress, finding

that the flicker of high beams lasted approximately a second and did not appear to create any
visual impairment contemplated by the statute, thus making the stop unreasonable. On appeal,

the court discussed prior case law concerning the use of high beams, finding that most of the

cases involved drivers traveling with high beams activated who failed to dim them for oncoming

traffic. However, the court also recognized the holding in Woods that a momentary flicker of

high beams followed immediately by a return to low beam cannot be elevated into a violation of

R.C. 4513.15 to justify reasonable suspicion. Id. at ¶ 16, 23.

{¶24} The Second District concluded that it did not need to reconcile the competing case

law or determine whether Fickert actually violated R.C. 4513.15, recognizing that even if

Fickert’s conduct in momentarily flashing her high beams into oncoming traffic was in violation

of the law, the United States Supreme Court’s decision in Heien v. North Carolina, 574 U.S. __,

135 S.Ct. 530, 190 L.Ed.2d 475 (2014), allows for reasonable mistakes of law. “‘A police

officer’s objectively reasonable belief that a traffic violation has occurred, including reasonable

mistakes of law, can constitute reasonable suspicion to justify a traffic stop.’” Fickert at ¶ 20,

quoting State v. Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871, ¶ 6 (1st Dist.), citing Heien at 536.

Accordingly, upon reviewing the language of R.C. 4513.15(A)(1) and considering the totality of

the circumstances, the Second District held that the motion to suppress should have been denied

because the officer’s objectively reasonable belief that a violation occurred, even if mistaken,

could still constitute reasonable suspicion to justify the stop. Fickert at ¶ 22-23.

{¶25} In Heien, the United States Supreme Court reviewed the propriety of a traffic stop

where the officer stopped a vehicle because one of the vehicle’s two brake lights was not

working. The officer believed that the law in North Carolina required both brake lights to be

operable. This belief turned out to be a mistake of law by the officer, because a single working

brake light was all that the law required. After reviewing the language of the relevant statute,
the court determined that the officer’s mistake about the brake-light law was objectively

reasonable based on the circumstances. Id. at 540. As a result, the court found the officer had

reasonable suspicion to justify the traffic stop. Id.

{¶26} The United States Supreme Court stated:

We have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment
is ‘reasonableness.’” Riley v. California, 573 U.S. [373], [381], 134 S.Ct. 2473,
189 L.Ed.2d 430 (2014) (some internal quotation marks omitted). To be
reasonable is not to be perfect, and so the Fourth Amendment allows for some
mistakes on the part of government officials, giving them “fair leeway for
enforcing the law in the community’s protection.” Brinegar v. United States, 338
U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). We have recognized that
searches and seizures based on mistakes of fact can be reasonable. The
warrantless search of a home, for instance, is reasonable if undertaken with the
consent of a resident, and remains lawful when officers obtain the consent of
someone who reasonably appears to be but is not in fact a resident. See Illinois v.
Rodriguez, 497 U.S. 177, 183-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). By
the same token, if officers with probable cause to arrest a suspect mistakenly
arrest an individual matching the suspect’s description, neither the seizure nor an
accompanying search of the arrestee would be unlawful. See Hill v. California,
401 U.S. 797, 802-805, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The limit is that
“the mistakes must be those of reasonable men.” Brinegar, supra, at 176, 69
S.Ct. 1302.

But reasonable men make mistakes of law, too, and such mistakes are no less

compatible with the concept of reasonable suspicion. Reasonable suspicion

arises from the combination of an officer’s understanding of the facts and his

understanding of the relevant law. The officer may be reasonably mistaken on

either ground. Whether the facts turn out to be not what was thought, or the law

turns out to be not what was thought, the result is the same: the facts are outside

the scope of the law. There is no reason, under the text of the Fourth

Amendment or our precedents, why this same result should be acceptable when

reached by way of a reasonable mistake of fact, but not when reached by way of a

similarly reasonable mistake of law.
Heien at 536.

{¶27} In this case, Spellacy readily admits in his appellate brief that “McDonald was

simply mistaken in his belief that two momentary flicks of one’s bright lights, particularly under

the facts described, was a violation of the law.” (Appellant’s brief at 6.) Nevertheless, Spellacy

contends that Officer McDonald’s mistake of law was not objectively reasonable under Heien

because, unlike the law at issue in Heien, the headlight law here is clear, unambiguous, and has

been interpreted by reviewing courts that momentary flickers of high-beam headlights followed

immediately by a return to low beam does not constitute a violation of R.C. 4513.15(A)(1).

{¶28} The case law in Ohio interpreting R.C. 4513.15(A)(1) and similarly worded

municipal ordinances, seems to hinge on specific facts — whether the vehicle using high beams

stationary or moving; whether the impeded vehicle stationary, approaching, or in front of the

vehicle using high beams; whether there was testimony of vision impairment. Even applying

these specific facts, however, there is no clear consensus on when a motorist violates R.C.

4513.15(A)(1) or what facts are sufficient to justify “reasonable suspicion.” See, e.g., State v.

Hinton, 2d Dist. Clark No. 2833, 1992 Ohio App. LEXIS 1202 (Mar. 16, 1992) (failure to dim to

oncoming traffic sufficient to justify stop); State v. Barnes, 2d Dist. Montgomery Nos. 15159 and

15160, 1996 Ohio App. LEXIS 1404 (Apr. 5, 1996) (continuous use of high beams despite no

oncoming traffic sufficient to justify stop); Kaplysh, 118 Ohio App.3d 18, 691 N.E.2d 1074,

(observation of use of high beams even when oncoming traffic stationary sufficient to justify

stop); State v. Burghardt, 6th Dist. Erie No. E-98-060, 1999 Ohio App. LEXIS 3318 (July 16,

1999) (failure to dim even after police office signaled with own brights); State v. Mullins, 5th

Dist. Licking No. 2006-CA-00019, 2006-Ohio-4674 (failure to dim caused glare in oncoming

driver’s eyes sufficient to justify stop); State v. Gist, 2d Dist. Montgomery No. 22823,
2009-Ohio-4791 (failure to dim sufficient even where no evidence of glare complained of);

Howell, 1st Dist. Hamilton No. C-170158, 2018-Ohio-591 (failure to dim when following

vehicle insufficient to justify stop).

{¶29} Moreover, the cases interpreting R.C. 4513.15 or similar municipal ordinances

were either decided prior to Heien or did not consider or conduct an “objectively reasonable

mistake of law” analysis. Additionally, the clear and unambiguous wording of R.C. 4513.15

actually prohibits any use of high beam lights, even a momentary flicker, when approaching

oncoming traffic. See, e.g., State v. Westmiller, 2007 ND 52, 730 N.W.2d 134, ¶ 11

(interpreting similar North Dakota statute and holding that the statute does not make any

exceptions for the momentary flashing of high beams).

{¶30} We also find that the Heien “objectively reasonable” test has been applied by Ohio

courts that involve statutes or ordinances that had also previously been interpreted on appellate

review. See Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871 (officer’s belief that a driver’s wide

left turn violated R.C. 4511.36 constituted reasonable mistake of law, even after the court

determined that the law was unambiguous; the stop did not warrant suppression); State v. Hill,

5th Dist. Stark Nos. 2015 CA 00078 and 2015 CA 00079, 2016-Ohio-1510 (officer’s

misinterpretation of a local stop-sign ordinance was objectively reasonable; similar stop sign law

interpreted as unambiguous).

{¶31} Accordingly, based on Heien, we agree with the state’s position that even if

Spellacy’s two momentary flickers of his high-beam headlights spanning 14 seconds apart were

not sufficient to constitute a violation of R.C. 4513.15(A)(1), the traffic stop at issue was still

lawful if Officer McDonald reasonably, albeit mistakenly, believed that a violation of the statute

had occurred.
 {¶32} “Thus the question whether a traffic stop violates the Fourth Amendment * * *

requires an objective assessment of a police officer’s actions in light of the facts and

circumstances.” Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d

698, ¶ 14. “The existence of probable cause [or reasonable suspicion] depends on whether an

objectively reasonable police officer would believe that [the driver’s] conduct * * * constituted a

traffic violation, based on the totality of the circumstances known to the officer at the time of the

stop.” Id. at ¶ 16.

{¶33} In this case, Officer McDonald testified that he observed Spellacy activate his high

beams on two different occasions while stopped behind another vehicle at a red light. The

dash-cam video shows that the two flashes occurred briefly, approximately for one second, and

approximately 14 seconds apart. Officer McDonald testified that he initiated the traffic stop to

“determine why he was using his bright lights” and that he believed Spellacy violated the traffic

law because “you can’t drive with your bright lights on.”

{¶34} When reviewing the language of R.C. 4513.15(A)(1) and considering Officer

McDonald’s testimony, an objectively reasonable officer could have concluded that Spellacy

violated R.C. 4513.15(A)(1) when, on two separate occasions, he flashed his high-beam lights

while stopped behind another vehicle at a busy intersection. Moreover, Spellacy was operating

his vehicle at a time and in an area where the use of high beams would be unnecessary or

unwarranted, and while he was stopped at a stoplight. Officer McDonald stated that he

conducted the investigatory stop to see “why he was using his high beams.” Therefore, at the

very least, the totality of the circumstances would permit the officer to effectuate a traffic stop for

the purposes of obtaining explanatory information why Spellacy was flashing his high beams on

two separate occasions. See, e.g., State v. Carlile, 2d Dist. Montgomery No. 17270, 1999 Ohio
App. LEXIS 2181 (May 14, 1999) (flicker of high beams common signal to drivers; officer as a

community caretaker acted reasonably initiating traffic stop; police-citizen contact objectively

reasonable).

{¶35} Based on the totality of the circumstances, even if Officer McDonald was mistaken

that Spellacy violated R.C. 4513.15, or the evidence would be insufficient to prove the elements

of R.C. 4513.15 beyond a reasonable doubt, we find that Officer McDonald had an objectively

reasonable belief that a traffic violation occurred, thus constituting reasonable suspicion to justify

the traffic stop. Accordingly, we find that the trial court erred in granting Spellacy’s motion to

suppress.

{¶36} Judgment reversed and remanded for further proceedings consistent with this

opinion.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

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

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR