Beatty v. Urbania

[Cite as Beatty v. Urbania, 2023-Ohio-4491.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY

M. JOAN BEATTY ET AL.,

Plaintiffs-Appellees,

v.

CHERIE L. URBANIA ET AL.,

Defendants-Appellants.

OPINION AND JUDGMENT ENTRY
Case No. 23 CO 0010

Civil Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2014 CV 599

BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:
Vacated and Remanded.

Atty. Mark A. Hutson, for Plaintiffs-Appellees and

Atty. Glenn R. Osborne, Glenn Osborne Law, and Atty. Anthony W. Jesko, Dickie,
McCamey & Chilcote, P.C., for Defendants-Appellants.

Dated: December 11, 2023
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D’APOLITO, P.J.

{¶1} Defendants-Appellants, Cherie and Michael Urbania, appeal the January 5,
2023 judgment entry of the Columbiana Court of Common Pleas (“contempt order”)
finding them in contempt of the trial court’s July 28, 2017 Opinion and Final Order as
modified1 in a previous appeal (“2017 Order”). Appellants advance two assignments of
error. First, Appellants contend the trial court violated the law of the case doctrine when
it imposed additional burdens on Appellants prior to exercising their rights created by the
2017 Order in the future. Second, Appellants argue that the trial court erred in finding
them in contempt of the 2017 Order, as they had actually complied with the specific term
at issue and any asserted ongoing obligation under the specific term would be futile.
Because the 2017 Order required the parties to mediate an alleged violation of the order
as a condition precedent to the trial court’s continuing jurisdiction, the judgment entry of
the trial court is vacated in its entirety, and the matter is remanded to the trial court with
instructions to the parties to engage in a good-faith mediation.

PROCEDURAL HISTORY AND FACTS

{¶2} Appellants and Plaintiffs-Appellees, Lee and Cindy Guterba, are neighbors,
whose properties are situated along Copeland Lake and separated by a third property
currently owned by Nathan Martin. Prior to 2019, the Martin property was a rental
property owned by Cindy Guterba. Plaintiff-Appellee M. Joan Beatty is Lee Guterba’s
mother and the owner of Copeland Lake and the 250 feet of land west of Appellants’
property line to the lake’s edge, which is the subject of this appeal (“Beatty property”).
Hostilities between the parties to this appeal have persisted for over twenty years.
{¶3} This case represents the second litigation between the parties, the first
having been resolved by a 2002 settlement agreement in which Appellants relinquished
their lake privileges in exchange for $18,000. In the 2002 release, Appellants agreed to
quit claim deed their lake privileges to Appellees and to execute a termination of the
easement of lake privileges.

1 The modifications to the 2017 Order are not relevant to this appeal.

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{¶4} This is the third appeal taken from the second litigation filed in 2014. The
complaint and counterclaims in this 2014 action included competing claims for trespass,
invasion of privacy, and defamation, as well as an accusation that Cindy killed Appellants’
kitten with a rifle. Both parties sought monetary damages and injunctive relief. However,
neither party prayed for the equitable relief ultimately fashioned by the trial court.
{¶5} Appellees’ claims were dismissed on summary judgment, while Appellants’
counterclaims proceeded to a jury trial. On the third day of trial, the parties informed the
trial court that they were very close to resolving the matter through a settlement
agreement.
{¶6} The proposed settlement was not monetary, but instead, involved the
creation of an easement or license in favor of Appellants on some portion of the Beatty
property with two goals in mind: (1) to provide Appellants with some exclusive access
and use in order to create a “buffer” between the feuding neighbors; and (2) to restore
Appellants’ view of Lake Copeland, which had become obstructed due to Appellees’
failure to maintain the Beatty property.
{¶7} The parties agreed to dismiss the jury and convert the matter to a bench
trial, so the trial court could resolve three remaining issues and fashion a remedy through
the use of its equitable powers. Post-trial briefs addressed three issues remaining for
resolution by the trial court. Although the parties agreed that a buffer zone should be
carved from the Beatty property, which was to be bordered by Arborvitae along its
southern border, they could not agree on the dimensions of the zone. The second issue
for the trial court’s consideration was the dimensions of the area west of the buffer zone
to the lake’s edge. The third issue was lake privileges.
{¶8} In the 2017 Order, the trial court resolved the foregoing conflicts as follows:
A license was imposed on a portion of the Beatty Property in favor of the Urbanias
(“licensed property”). The license was to be “permanent, exclusive, continuous,
irrevocable, and personal to [Appellants] so long as the property shall remain owned by
[Appellants].” (2017 Order, ¶ A1.) The 2017 Order reads, “[t]he license shall be absolute,
without reservation and shall include all rights to use said parcel, to landscape and
maintain said parcel, and to use the property as it is were [sic] their own property * * *”
(Id.)

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{¶9} The 2017 Order further reads:

[Appellants] shall be entitled to open up the property between the property
lines to the lake by clearing undergrowth, deadfall, immature saplings,
weeds and debris, and by trimming the branches of trees up from the
ground to open up the view. [Appellants] may remove immature or
overcrowded saplings and brush and also selectively prune trees to
promote healthy growth and beauty and to remove dead or diseased trees
and their limbs. * * * [Appellants] shall not remove or destroy live mature
trees, nor shall they place any outbuildings or structures on the property
described. * * * The Court intends that [Appellants] shall have the primary
right and responsibility for beautifying and maintaining the licensed property
to the lake front and accordingly, neither Beatty nor Guterba shall obstruct,
build upon, alter, change the grade or the land or place any property, objects
or debris thereon.

(Emphasis added)(Id., unnumbered paragraph captioned “Opening Up and Landscaping”
following section A2(c).)

{¶10} Section A2(e) of the 2017 Order reads, in relevant part:

[Appellants] shall erect a row of Arborvitae or comparable shrubs beginning
at a point near the southwest corner of the [Appellants’] property, (where
[Appellants’] wooden fence currently ends) and running westerly along the
southern border of the licensed property, a distance of 150 feet towards the
shore of Lake Copeland to create a physical division between the lands of
Urbania and Guterba.

{¶11} In the first appeal of the 2017 Order, Appellees argued that the trial court
was without authority to impose an equitable remedy not prayed for by either party in their
original pleadings. Appellees further argued we could not presume that the parties
consented to the equitable jurisdiction of the trial court due to the trial court’s failure to
recite the parties’ alleged consent into the record. Based on the post-trial briefs and

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proposed entries submitted by the parties, we ultimately concluded that the parties jointly
invoked the trial court’s equity jurisdiction.
{¶12} We next considered whether the trial court had abused its discretion in
fashioning the equitable relief. We wrote:

The trial court did not abuse its discretion in granting an irrevocable license
to [Appellants] to access and maintain the land between their property and
the lake. The property between [Appellants’] property and the lake was the
crux of the dispute as appears from the post-trial filings. Both parties
proposed different levels of access and dimensions of the property between
[Appellants] and the lake. It was within the trial court’s discretion to fashion
an equitable remedy that took into account each of the proposals that were
submitted by the parties with regard to the disputed area between
Appellee's home and the lake.

However, the granting of the lake access/privileges, which were
relinquished by [Appellants] in 2002 for the sum of $ 18,000.00, was an
abuse of the trial court’s discretion. Based upon the record before this Court,
granting lake access was far above and beyond the injunctive relief that
Appellees requested pertaining to the behaviors of Appellants that they
sought to restrain. Because there is no mention of the restoration of lake
access or privileges in the record prior to the [Appellants’ post-trial briefs],
there is no way of knowing if this was an issue that the parties had
considered on the third day of trial when the jury dismissed, or if this was
something that Appellees decided to add on to their Proposed Order
following the breakdown in negotiations. If this was not considered during
those negotiations, but rather raised for the first time in Appellees'
Memorandum of Position and Proposed Order, it is unreasonable to expand
the area of access beyond what the parties had anticipated and negotiated.
The trial court was requested to “close the gap” in settlement negotiations
where the parties could not resolve specifics with regard to the mechanics
of creating the separation among the parties and the proposed access area

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between [Appellants’] property and the lake. The restoration of lake access
and privileges exceeds the scope, and represents an abuse of discretion by
the trial court.

Thus, based on all of the above, the sole assignment of error has merit with
regard to the restoration of lake access/privileges, and the judgment of the
trial court is affirmed in part, reversed in part, and remanded on that limited
basis.

Beatty v. Urbania, 2019-Ohio-245, 131 N.E.3d 413, ¶ 41-43 (7th Dist.).

{¶13} On remand, the trial court ordered the parties to file briefs interpreting the
limited remand order. Appellants argued that only their license to fish and boat on the
lake should be stricken from the 2017 Order. Appellees argued that the license should
be stricken in its entirety because the only reason that the trial court imposed the license
was to provide access to the lake to Appellants.
{¶14} The trial court’s 2019 judgment entry was the subject of the second appeal
in the above-captioned case. As a result of the second appeal, we vacated the 2019
judgment entry, then modified the 2017 Order line-by-line due to the trial court’s admitted
inability to understand the mandate in the first appeal. Beatty v. Urbania, 7th Dist.
Columbiana No. 19 CO 0036, 2020-Ohio-3361.
{¶15} The following provision in the 2017 Order governs the trial court’s continuing
jurisdiction over the case:

The Court retains jurisdiction over enforcement of this Order. Remedies for
violation of this Order shall be by Motion to Show Cause, which shall ripen
only after an unsuccessful, good faith mediation. Sanctions may include
any remedies appropriate in contempt proceedings, at the Court’s
discretion. In addition, any party found to have violated a material term of
this Order shall also be ordered to pay the aggrieved parties’ attorney’s
fees, along with court costs.

(2017 Order, ¶ A3(5).)

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{¶16} On August 23, 2022, roughly two years after the resolution of the second
appeal, Appellees filed the motion to show cause at the center of this third appeal. In the
motion, Appellees assert an after-the-fact challenge to the removal of five trees2 by
Appellants on the licensed property. According to the motion, prior mediation was futile,
as Appellants “continue to insist that they have the right to do what they are doing at any
given moment.” (Mot., p. 2.) Appellees further assert that a portion of the Arborvitae
barrier required by the 2017 Order was presently absent, as a row of small Arborvitae
had been planted, but had subsequently died and had not been replaced.
{¶17} The trial court conducted a hearing on the motion to show cause on
December 2, 2022. Counsel for Appellants argued that the controversy was not “ripe”
based on the provision in the 2017 Order requiring an unsuccessful good-faith mediation
as a condition precedent to a motion to show cause. However, the trial court agreed with
Appellees that a mediation would be futile. The trial court observed:

Well, let me see if I can clear this up. Is this not the case? [Appellees’]
counsel says [the trees] were alive. You guys [sic] say [the trees were]
dead. [What is] there to mediate? * * * I know that [counsel] * * * they make
a lot of communication, attempt to resolve things, and we end up here on a
regular basis. * * * Mediation – and, again, we had talked about this, and I
indicated I would be the mediator in the event that something needed to be
mediated, because ultimately [it is] going to come before me again. And I
said we might as well just cut out the middleman.

(2/28/23 Hrg. Tr., p. 31-32.)

{¶18} Five witnesses testified at the hearing. Lee and Cindy Guterba, and Nathan
Martin, the neighbor who lives on the property between the parties, testified on behalf of
Appellees. Michael Urbania and Glenn Wickersham, “the gentleman that [Michael] used
to cut down trees over the last 26 years at [his] property,” (Id., p. 35), and the man who

2 Appellees conceded that a tree removed by a tree service was dead, but argue on appeal that
the remaining trees, which were cleared by Appellants, were live.

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recommended that the four trees at issue in this appeal should be removed, testified on
behalf of Appellants.
{¶19} One day in July of 2022, Appellants began cutting down 60-year-old pine
trees. After cutting down four trees, Appellants incinerated the boughs in a burn pile. The
logs were stacked along the edge of the southern border of the licensed property. A few
days later, the stumps were grounded.
{¶20} Based on photographs hastily taken by Cindy Guterba on her mobile
telephone from a distance of 150 feet, the Guterbas observed that the pine boughs in the
burn pile were green not brown. Lee testified that his grandfather was a tree farmer, who
planted the pine trees at issue in this appeal. Lee explained that his observations
regarding the trees were predicated upon the knowledge he accumulated over the years
from his grandfather. However, Lee conceded that he was not an expert and he was not
qualified as an expert at the hearing.
{¶21} Martin testified he saw trees “coming down on Lee’s property” one day in
July of 2022. In order to improve his vantage point, Martin walked to the edge of his
property and “Mike was with the chain saw, and Cherie was on the tractor, moving
branches.” (Id. at p. 23.) Martin also took a photograph of the scene.
{¶22} Martin further testified that all of the trees that were taken down that day
were green, but that a tree service removed one dead tree shortly thereafter. Martin
admitted that he was not an expert, but testified that the four trees that were removed by
Appellants had green needles and pinecones. The photographs taken by Cindy and
Martin were admitted into evidence.
{¶23} With respect to the Arborvitae, Lee testified Appellants planted five large
Arborvitae (7 or 8 feet in height) and a “row of about four-footers.” When the smaller
plants died, Appellants covered them in green spray paint, then ultimately removed them.
As a consequence, there is a void in the barrier required to be constructed by Appellants
on the southern border of the property.
{¶24} Michael identified the four trees Appellants removed as “Jack Pine” trees.
He testified that his property contained roughly 65 to 70 Jack Pines when he purchased
the property 26 years ago. There were roughly fifteen or twenty Jack Pines on the licensed
property.

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{¶25} Michael removed all of the Jack Pines from his own property on
Wickersham’s recommendation due to earwig infestation. In the summer of 2021 (one
year before Appellants removed the trees at issue in this appeal from the licensed
property), Wickersham recommended the five trees be removed for the same reason.
Michael explained the earwig-infested Jack Pines were both “ugly to look at” and a health
and property hazard (they can fall without warning in the wind), as “[e]arwigs eat trees
from the bottom up and eat the inside of the tree.” (Id. at p. 35.)
{¶26} Michael testified that the fifth tree, which Appellees now concede was dead,
was covered with poison ivy and he was afraid to burn it, so he hired a tree service to
remove it. Michael further testified that he photographs trees before he removes them
and offered photographs of the trees from 2021 when Wickersham made his
recommendation. On cross-examination, Michael conceded that Cindy’s photograph of
the burn pile depicted green boughs being incinerated, but he explained Jack Pines die
from the roots up, so some green needles remain at the top of the tree. (Id. at 47.)
{¶27} Appellees’ counsel asked Michael why he did not remove the trees
immediately in 2021 if they were a health hazard. Michael responded that he did not have
the trees removed in 2021 because he “[did not] have the funds.” (Id. at p. 47.) He later
testified, “[i]t costs money to bring in dirt. It costs money to put grass seed down. * * *
When I – and when I can get to it, and I have the time, and I have the extra resources to
do that, I put the land back to where it was originally. I planted the grass. I took out the –
I took out the stumps. I beautified it.” (Id. at p. 55.)
{¶28} Appellees’ counsel also asked Michael why he did not communicate his
intent to cut down the trees at a meeting of counsel and the parties that was held at the
licensed property in June of 2022, one month before the trees were removed. Michael
responded:

A couple reasons. Number one is, when we were down, we [were not]
talking about trees. We were talking about Lee Guterba having access to
the land. * * * Number two is, I study this order, because [I have] been
involved in this lawsuit over the last five years. I know what I can do and
what I [cannot] do. I [did not] believe that I need[ed] to ask permission [sic]
to take down diseased trees, when the order states that I can take down

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diseased or dead trees. Even five years ago, when the original order first
came down, we had removed several trees.

(Id. at p. 53.)

{¶29} With respect to the Arborvitaes, Michael testified that the man from the
landscaping company who planted the tall Arborvitaes told Michael that Arborvitaes would
not survive in the area at issue because the trees and brush near the Arborvitaes are so
dense. As a consequence, the landscaping company only planted Arborvitaes in a
portion of the required 150-foot space.
{¶30} Michael testified that he was told “it [does not] matter what you put in [the
remaining space], [it is not] going to grow.” (Id. at p. 58.) Nevertheless, roughly a year to
a year-and-a-half after the 2017 Order was entered, Appellants bought seventeen or
eighteen two-to-three-foot Arborvitaes and planted them in the remaining space. They
lasted about sixteen months because they do not get any sunlight. Michael testified there
are 400 square feet of trees at the back of Martin’s property, which butt up against the
area, so the area is completely shaded. Michael characterized replacing the small
Arborvitaes as a waste of money.
{¶31} Wickersham testified that he has been employed in the tree business for 35
years. He began his career working with public utility companies, through a contract with
local tree services, then worked as a foreman for a series of tree service companies
(Asplundh, Nelson’s Tree, Davey’s). In 1990, he opened his own tree pruning and
removal business. Wickersham testified that he was certified through the various tree
services to identify various types of trees for the purpose of pruning them. He further
testified that over the course of his career he has removed hundreds of dead trees.
{¶32} Wickersham had worked for Michael for 25 years. Shortly after Michael
purchased his property, Wickersham removed 44 Jack Pines suffering from earwig
infestation from the front yard. Wickersham had trimmed but never removed trees from
the licensed area.
{¶33} Wickersham testified that he instructed Michael to remove the five trees on
the licensed property in 2021 because Jack Pines are a soft wood, and the Jack Pines at
issue were heavily infested with earwigs. Wickersham cited a photograph taken by

Case No. 23 CO 0010
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Michael, which depicts a tree trunk riddled with circular markings, which Wickersham
testified are evidence of a “massive infestation.” (Id. at p. 69.) He further testified that
there is no cure or pesticide that can reverse the infestation. Wickersham characterized
the trees as “widow makers,” due to their propensity to break off at the bottom stump in
windy conditions.
{¶34} The trial court interrupted Wickersham’s testimony, stating, “[I am] confused
on where [we are] taking this leap. [He is] not an arborist tree expert. We [are not] there
yet.” (Id. at p. 70.) Ultimately, the trial court concluded that Wickersham’s expertise lies
in removing trees, not trees themselves, and declined to consider his testimony.
Appellants did not ask the trial court to qualify Wickersham as an expert. Wickersham
conceded when a municipality removes a tree, an arborist determines whether the tree is
dead. Wickersham described an arborist as “a certified tree guy that – through the state
* * * It would be a state job.” (Id. at p. 83.)
{¶35} At the conclusion of the hearing, the trial court expressed skepticism
regarding Wickersham’s conclusions about the trees based largely on the fact that
Appellants did not remove them for a full year, despite the alleged threat to persons and
property. The trial court also criticized the 2017 Order for failing to vest discretion
regarding the removal of trees in either the parties, the mediator, or the trial court, stating:

It did not say an expert absolutely has to be able to say it. It [does not] have
– it [does not] say that a – layperson can identify that. So that kind of puts
me in a predicament here. [I am] trying to do my due diligence and
addressing [sic] the issue as a whole. The problem is, I have no way to
independently make that determination. The trees are gone. * * * my
frustration is, testimony – [Michael] knew a year before he ever did this
work. He could have easily –he [would not] even have had to get [counsel].
If he would have just notified the Court, “[I am] looking to cut down these
trees down, [They are] diseased. Blah, blah, blah.” Put it on notice. I get it.
Entry does not say that, not required of him. And I – I know [that is] what
the parties are going to – what your response is going to be. I get that.

(Id. at p. 86-87.)

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{¶36} Further, at the conclusion of the hearing, the trial court endorsed mediation
prior to any action taken by Appellants on the licensed property. The trial court reasoned:

[Let us] mediate before we start acting, because ultimately, we end up here
because of that. * * * I went to the property, and one of the reasons I went
to the property is, you know, we were trying to find a way that we could
reasonably resolve this without having to keep doing this. And again, I think
the only suggestion I can have is not, you know - discussions need to be
had before action is taken. Okay. Because we cannot now undo this.

(Id. at p. 88.)
{¶37} Following the hearing, the trial court issued a judgment entry finding no
violation of the 2017 Order based on the four trees. However, in so finding the trial court
opined:

In order for the Court to make a finding of contempt, there must be clear
and convincing evidence that a party violated the [2017 Order]. The entry
is vague in many areas. The entry does permit [Appellants] to removed [sic]
dead or diseased trees, however, it gives no guidance as to how or who
determines the condition of the trees. Based on the past history of the
parties, it is necessary to give clear guidance to prevent issues of this
nature. The Court does not find the evidence present [sic] by either side
provides the Court adequate information to determine what the actual state
of the trees removed were in at the time of their removal. The Court is not
in a position to determine the condition of the trees. No expert testimony
was provided by either party to establish by clear and convincing evidence
the trees removed were dead or diseased. Also, there was no expert
testimony to establish that the trees were mature and healthy. The parties
did agree that one of the trees removed by a tree service was in fact dead.
As to the remaining four (4) trees, absent the determination by an expert or
the ability for an expert to make the determination after the trees had been
cut down, there is no sufficient evidence for the Court to find [Appellants] in
contempt related to the removal of the trees.

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In order to prevent this same issue arising in in the future, the Court orders
that prior to removal of any trees on the licensed area, an expert (an arborist
or licensed tree service) must issue a report as to their findings of the
condition of the trees and the report shall be provided to the Court before
removal.

(1/5/23 J.E., p. 2.)

{¶38} With respect to the replanting of the Arborvitaes, the trial court held:

It was undisputed that there is not Arborvitae in the location as set forth in
the [2017 Order]. Michael Guterba [sic] testified he attempted to plant
Arborvitae in the location and due to sunlight and brush they did not survive.
He has made no other attempt to replant Arborvitae or comparable shrub.
The Court finds there is clear and convincing evidence [Appellants] have
not complied with the Court order as stated in paragraph (e). Finding
[Appellants] in contempt, [Appellants] shall have until July 1, 2023 to purge
themselves of this contempt. Failure to do so will result in sanctions by the
Court.

(Id. at p. 3.)

{¶39} This timely appeal followed.

ANALYSIS

ASSIGMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW BY MODIFYING
THE [2017 ORDER] IN VIOLATION OF THE LAW OF THE CASE
DOCTRINE DESPITE TWO PRIOR APPEALS AND THIS COURT’S
DETERMINATION THAT THE ORDER WAS A FINAL JUDGMENT.

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ASSIGMENT OF ERROR NO. 2

THE DECISION OF THE TRIAL COURT FINDING APPELLANTS IN
CONTEMPT FOR FAILURE TO PLANT MORE ARBOVITAE BUSHES
ALONG THE SOUTHERN PROPERTY BORDER IS CONTRARY TO
LAW WHEN APPELLANTS HAD ALREADY COMPLIED WITH THE
ORDER BY PLANTING ARBORVITAE, AND THE BUSHES DIED
THROUGH NO FAULT OF APPELLANTS.

{¶40} Before reaching the merits of the arguments before us, we first consider the
jurisdiction of the trial court. In the 2017 Order, the trial court’s continuing jurisdiction,
which is invoked with the filing of a motion to show cause, is predicated upon a condition
precedent, that is, a good-faith mediation. The clear intent of the trial court plainly
articulated in the 2017 Order requires the parties to mediate disputes prior to filing a
motion to show cause.
{¶41} According to the motion to show cause, mediation was futile, as Appellants
“continue to insist that they have the right to do what they are doing at any given moment.”
(Mot., p. 2.) However, counsel for Appellants argued that the controversy was not “ripe”
based on the provision in the 2017 Order requiring an unsuccessful good-faith mediation
as a condition precedent to a motion to show cause.
{¶42} The trial court’s decision to “cut out the middleman” was extrajudicial in
nature as a condition precedent to the motion to show cause had not been satisfied, that
is, a good-faith mediation had not been undertaken by the parties. Although the vitriol
between the parties to this appeal is palpable, it has not historically foreclosed their ability
to reach an agreement. For instance, the parties waived the jury and reached consensus
on the resolution of the dispute, leaving only three issues for the trial court to resolve.
{¶43} Insofar as the trial court did not have jurisdiction to consider the motion to
show cause, this matter must be remanded for the parties to participate in a good-faith
mediation. As a consequence, we find Appellant’s assignments or error are moot.

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CONCLUSION

{¶44} Because the 2017 Order required the parties to mediate an alleged violation
of the order as a condition precedent to the trial court’s continuing jurisdiction, the
judgment entry of the trial court is vacated in its entirety, and the matter is remanded to
the trial court with instructions to the parties to participate in a good-faith mediation.

Waite, J., concurs.

Robb, J., concurs.

Case No. 23 CO 0010
[Cite as Beatty v. Urbania, 2023-Ohio-4491.]

For the reasons stated in the Opinion rendered herein, it is the final judgment
and order of this Court that the judgment of the Court of Common Pleas of Columbiana
County, Ohio, is vacated. We hereby remand this matter to the trial court with
instructions to the parties to participate in good-faith mediation. Costs to be taxed
against the Appellees.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.