Gorby v. Aberth

[Cite as Gorby v. Aberth, 2017-Ohio-274.]

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

RACHEL CAVANAUGH GORBY, et al. C.A. No. 28021

Appellants

v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOEL R. ABERTH, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. 2013-CV-114

DECISION AND JOURNAL ENTRY

Dated: January 25, 2017

HENSAL, Judge.

{¶1} Plaintiffs-Appellants, Rachel Cavanaugh Gorby and Robert Donnan Cavanaugh,

appeal from a judgment of the Summit County Court of Common Pleas, Probate Division. This

Court affirms.

I.

{¶2} This appeal involves a dispute between the beneficiaries of a trust and the trustee.

Dr. Richard K. Cavanaugh died testate on April 6, 2012, and was survived by his two adult

children. Attorney Joel Aberth, Defendant-Appellee herein, is the executor of Dr. Cavanaugh’s

estate. The probate court admitted Dr. Cavanaugh’s will to probate in May 2012. The will

contained two specific bequests and a residual bequest to the Richard K. Cavanaugh Revocable

Trust, which named his children, Plaintiffs-Appellants Rachel Cavanaugh Gorby and Robert

Donnan Cavanaugh (the “Beneficiaries”), as income beneficiaries, and the University of San

Francisco (a non-party to the proceedings below and to this appeal) as the remainder beneficiary.
 2

The trust named Mr. Aberth, Dr. Cavanaugh’s longtime attorney, as the first successor trustee.

The majority of the trust’s assets are held in an account with the wealth management firm Robert

Baird & Company. The trust also contains U.S. savings bonds valued at $60,000, and a

FirstMerit checking account containing around $9,000.1

{¶3} In July 2014, Mr. Aberth filed an accounting of the estate, and the Beneficiaries

filed exceptions. Thereafter, the Beneficiaries sued Mr. Aberth, alleging breach of trust and

breach of fiduciary duty, requesting his removal as the trustee and executor, and an accounting.

The magistrate consolidated the estate case with the trust case for purposes of judicial economy.

{¶4} After a five-day hearing, the magistrate found in favor of Mr. Aberth on all of

the Beneficiaries’ claims, and the Beneficiaries timely filed objections. The Beneficiaries made

several arguments in support of their position that Mr. Aberth committed a serious breach of the

trust, warranting his removal. In particular, they argued that Mr. Aberth failed to: (1) distribute

income to them on a quarterly or more frequent basis as required under the trust; (2) keep them

reasonably informed and promptly respond to their requests for information; (3) inform them

regarding his compensation; (4) comply with the annual reporting requirements under Revised

Code Section 5808.13(C); and (5) use his special skills as an attorney in his capacity as trustee as

required under Section 5808.06. The Beneficiaries also argued that Mr. Aberth engaged in self-

dealing. The Beneficiaries further argued that, even if each individual breach did not amount to

a serious breach, the series of breaches constituted a serious breach of the trust, and that Mr.

Aberth’s conduct resulted in a persistent failure to administer the trust effectively.

1
The record indicates that the trust originally held a PNC account containing
approximately $90,000, which was later transferred to a different account.
 3

{¶5} The probate court overruled the Beneficiaries’ objections and adopted the

magistrate’s decision. In doing so, the probate court held that the Beneficiaries failed to prove

by clear and convincing evidence that Mr. Aberth breached his duties as the trustee or executor.

It further held that the Beneficiaries failed to demonstrate any harm that would give rise to an

award of damages. The probate court did, however, acknowledge that Mr. Aberth committed a

technical breach of the trust when he paid court fees with an IOLTA check when no funds from

the trust were in the IOLTA account. It further acknowledged a delay with respect to Mr.

Aberth’s first income distribution to the Beneficiaries, as well as a delay in issuing his first

report, but noted that the delays were explainable and did not warrant removal. The

Beneficiaries now appeal the probate court’s decision, assigning five assignments of error for our

review.

II.

ASSIGNMENT OF ERROR I

THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT
CONSIDERED PAROL EVIDENCE AND HEARSAY IN INTERPRETING
THE TRUST DOCUMENTS.

{¶6} In their first assignment of error, the Beneficiaries argue that the probate court

erred as a matter of law when it considered parol evidence and hearsay while interpreting the

trust documents. More specifically, the Beneficiaries argue that the probate court erred by

relying on Mr. Aberth’s testimony regarding Dr. Cavanaugh’s wishes with respect to the trust,

namely, that Dr. Cavanaugh wanted Mr. Finkes (Dr. Cavanaugh’s financial advisor) to continue

as the trust’s financial advisor, and that Dr. Cavanaugh wanted to prevent Mr. Fogg (Dr.

Cavanaugh’s ex-wife’s boyfriend) from interfering with the trust. The Beneficiaries argue that

“[i]f Dr. Cavanaugh desired Mr. Finkes’ continued managing of the Trust’s assets or wanted the
 4

trustee to exclude Mr. Fogg from the decision-making process, one would have expected that the

Trust documents would reflect those wishes.”

{¶7} As an initial matter, we note that the Beneficiaries called Mr. Aberth and Mr.

Finkes as witnesses and, therefore, their cross examinations occurred before their direct

examinations. Mr. Finkes, who testified before Mr. Aberth, testified on cross examination that

Dr. Cavanaugh told him that he wanted him to continue as the financial advisor for the trust. Mr.

Aberth then testified on cross examination that Dr. Cavanaugh was concerned about others,

particularly Mr. Fogg, attempting to control his assets and insisted that Mr. Aberth serve as the

trustee to protect the trust. Thereafter, on direct examination, Mr. Aberth similarly testified that

Dr. Cavanaugh wanted to keep the trust safe from outside influences and that Dr. Cavanaugh

wanted Mr. Finkes to serve as the trust’s financial advisor.

{¶8} Counsel to the Beneficiaries objected to Mr. Aberth’s testimony on the basis of

hearsay and parol evidence, which the probate court overruled. On appeal, the Beneficiaries

argue that by relying on this testimony, the probate court erroneously used parol evidence to

modify the trust documents, and then used those modifications to justify Mr. Aberth’s behavior.

The Beneficiaries further argue that this testimony constituted inadmissible hearsay because it

was not offered to rebut testimony as required under Evidence Rule 804(B)(5).

{¶9} Our review of the record indicates that Mr. Aberth’s testimony regarding Dr.

Cavanaugh’s concern about Mr. Fogg and other outside influences was, in fact, first elicited by

counsel to the Beneficiaries. Specifically, counsel to the Beneficiaries elicited the following

testimony from Mr. Aberth on cross examination:

Q: Mr. Aberth, why haven’t you resigned as the trustee and the executor, considering all
the friction with the family?
 5

A: I made a promise to Dr. Cavanaugh, which he implored that I serve as trustee,
because he was very, very concerned about people -- namely, Mr. Fogg -- trying to -- to
control his assets. * * *.

{¶10} Additionally, counsel to the Beneficiaries first elicited testimony regarding Dr.

Cavanaugh’s wishes with respect to Mr. Finkes serving as the trust’s financial advisor. In this

regard, during his cross examination, Mr. Finkes testified as follows:

Q: Were you pretty happy with getting to keep the account for Dr. Cavanaugh?

A: It was Dr. Cavanaugh’s wishes. That’s what he indicated to me.

{¶11} Although these issues were subsequently addressed on direct examination, the

Beneficiaries cannot now complain of testimony that their counsel first elicited. “Under the

doctrine of invited error, a party will not be permitted to take advantage of an error that he

himself invited or induced the trial court to make.” State v. McCombs, 9th Dist. Summit No.

22837, 2006-Ohio-3289, ¶ 13. Thus, because the Beneficiaries’ counsel induced the allegedly

improper testimony, they cannot now take advantage of any error in that regard. Id.

Accordingly, the Beneficiaries’ first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT
CONCLUDED NO SERIOUS BREACH OF THE TRUST OCCURRED.

{¶12} In their second assignment of error, the Beneficiaries argue that the probate court

erred as a matter of law when it concluded that Mr. Aberth did not commit a serious breach of

the trust. They argue that: (1) the probate court mistakenly believed that the Beneficiaries had to

demonstrate that they suffered economic harm as a result of the alleged breaches; (2) the probate

court failed to consider whether Mr. Aberth’s unexplained delay in taking control of the trust’s

assets, failure to respond to the Beneficiaries’ requests for information, and failure to fulfill his

statutory duties all constituted unfitness, unwillingness, or persistent failure to administer the
 6

trust effectively under Section 5807.06(B)(3); (3) Mr. Aberth committed a breach of the trust by

failing to distribute income on a quarterly or more frequent basis; (4) Mr. Aberth committed a

serious breach of the trust by failing to keep the Beneficiaries reasonably informed under Section

5808.13(A); (5) Mr. Aberth failed to comply with the annual reporting requirements under

Section 5808.13(C); (6) Mr. Aberth engaged in self-dealing as prohibited under Section

5808.02(C)(4); and (7) Mr. Aberth failed to use his special skills as an attorney as required under

Section 5808.06.

{¶13} In light of the number of issues presented in the Beneficiaries’ second assignment

of error, we will address each issue in turn, but will address their first argument (i.e., that the trial

court mistakenly believed that the Beneficiaries had to demonstrate that they suffered economic

harm as a result of the alleged breaches) last.

{¶14} As noted above, the Beneficiaries argue that the probate court failed to consider

whether Mr. Aberth’s conduct constituted unfitness, unwillingness, or persistent failure to

administer the trust effectively under Section 5807.06(B)(3). Instead, they argue, the probate

court only considered whether Mr. Aberth committed a serious breach of the trust under Section

5807.06(B)(1). We disagree.

{¶15} A review of the probate court’s order indicates that it did, in fact, consider and

apply Section 5807.06(B)(3). The probate court specifically noted that the Beneficiaries

“allege[d that Mr. Aberth] should be removed pursuant to R.C. 5807.06(B)(1) and (B)(3)” and

stated that “[a]bsent ‘serious breaches of trust’ or [Mr. Aberth’s] ‘unfitness, unwillingness and

persistent failure to administer the trust effectively’ [Mr. Aberth] should continue to serve as

trustee[.]” Thus, the record does not support the Beneficiaries’ argument that the probate court

did not consider Section 5807.06(B)(3).
 7

{¶16} Next, the Beneficiaries argue that Mr. Aberth committed a breach of the trust by

failing to distribute income on a quarterly or more frequent basis, and that the probate court erred

by holding otherwise. There is no dispute that the trust required Mr. Aberth to distribute income

to the Beneficiaries at least quarterly, and that the Beneficiaries did not receive their first income

payment until November 7, 2012. Addressing the seven-month delay between Dr. Cavanaugh’s

death (April 6, 2012) and the first income payment, the probate court noted that Mr. Aberth

testified that he waited until the statute of limitations for a will contest had expired and until he

received information regarding Dr. Cavanaugh’s out-of-state real estate (which he received in

September 2012) before making any income payments. The probate court found that this delay

was “prudent and in the best interest of the trust.” The Beneficiaries argue that the probate

court’s holding is wrong as a matter of law because Mr. Aberth had no obligation to pay debts of

the estate with trust assets.

{¶17} While the Beneficiaries are correct in noting that the trust did not require Mr.

Aberth to pay debts of the estate with trust assets, they concede that Article III of the trust gave

him discretion to do so. Further, Article III provides that “[t]he Trustee shall administer as

hereafter provided all the remaining trust property * * *.” (Emphasis added.) The following

section, Article IV, provides that “the Trustee shall hold and invest and reinvest all the remaining

trust property as one fund, and the Trustee shall pay one-half of the net income therefrom to * *

* [the Beneficiaries] quarterly or oftener.” When considered together, these sections

contemplate that the trustee has discretion to pay debts of the estate prior to commencing income

payments to the Beneficiaries. We, therefore, find no error in the probate court’s holding that

Mr. Aberth’s decision to delay making the first income payments until the will contest period

expired did not result in a breach of the trust.
 8

{¶18} Next, the Beneficiaries argue that Mr. Aberth committed a serious breach of the

trust by failing to keep them reasonably informed and by failing to promptly respond to requests

for information as required under Section 5808.13(A). Although the Beneficiaries argue that Mr.

Aberth repeatedly failed to respond to their requests for information, they cite just one example

in their assignment of error, namely, Mr. Aberth’s alleged failure to communicate his method of

compensation.

{¶19} Mr. Aberth, however, testified that he advised the Beneficiaries of his hourly rate

during their initial meeting, and that he reiterated it on numerous occasions. While the

Beneficiaries testified that Mr. Aberth never informed them regarding his fees, a letter dated

January 31, 2013, from the Beneficiaries’ counsel to Mr. Aberth specifically references the fact

that the issue of fees had been discussed on numerous occasions and that Mr. Aberth had advised

them he was inclined to bill at an hourly rate of $225. Although the Beneficiaries argue that Mr.

Aberth never confirmed his hourly rate (i.e., that he simply indicated he was inclined to bill $225

per hour), Mr. Aberth testified that he did, in fact, confirm his hourly rate on multiple occasions.

To the extent that the probate court’s holding relied upon credibility determinations, those

determinations are within the province of the trier of fact and are entitled to considerable

deference. State v. Scheiman, 9th Dist. Medina No. 04CA0047-M, 2005-Ohio-15, ¶ 22, 23.

{¶20} Aside from arguing that Mr. Aberth failed to inform them of his method of

compensation, the Beneficiaries have not provided citations to parts of the record in support of

their assignment of error or created an argument around those facts of record. App.R. 16(A)(7).

While the statement of facts in the Beneficiaries’ merit brief cites a series of letters that Mr.

Aberth allegedly did not respond to, the Beneficiaries have not developed an argument regarding

those letters in their assignment of error. In light of the argument before us, we cannot say that
 9

the probate court erred by holding that Mr. Aberth did not breach his duty to keep the

Beneficiaries reasonably informed and to promptly respond to requests for information.

{¶21} Next, the Beneficiaries argue that the probate court erred as a matter of law by

concluding that Mr. Aberth complied with the annual reporting requirements under Section

5808.13(C). Section 5808.13(C) requires a trustee to send “a report of the trust property,

liabilities, receipts, and disbursements, including the source and amount of the trustee’s

compensation, a listing of the trust assets, and, if feasible, the trust assets’ respective market

values” at least annually. The Beneficiaries argue that Mr. Aberth failed to comply with this

section because he did not send an annual report until October 2013, 18 months after Dr.

Cavanaugh’s death. Additionally, although their own expert testified that the statements they

received from Robert Baird & Company (which they began receiving in March 2013, less than

one year after Dr. Cavanaugh’s death) satisfied the reporting requirements, the Beneficiaries

argue that the Baird statements did not satisfy the reporting requirements because they did not

contain the liabilities of the trust. At the hearing, Mr. Aberth’s expert testified that he was

unaware of any liabilities of the trust and that if the trust had no liabilities, then there was

nothing to disclose. The Beneficiaries did not present any rebuttal evidence on this issue. On

appeal, the Beneficiaries have not indicated what liabilities, if any, were not included in the

statements they received. We, therefore, cannot say that the probate court erred by holding that

Mr. Aberth satisfied the reporting requirements under Section 5808.13(C).

{¶22} Next, the Beneficiaries argue that Mr. Aberth engaged in self-dealing in violation

of Section 5808.02(C)(4). Section 5808.02(C)(4) provides that a “transaction involving the

investment or management of trust property is presumed to be affected by a conflict between

personal and fiduciary interests if it is entered into by the trustee with * * * [a] corporation or
 10

other person or enterprise in which the trustee * * * has an interest that might affect the trustee’s

best judgment.” Because Mr. Aberth hired his own law firm to defend against the Beneficiaries’

lawsuit, the Beneficiaries argue that a conflict of interest presumably existed under Section

5808.02(C)(4). The Beneficiaries, however, presented no evidence at the hearing in support their

position. On the other hand, Mr. Aberth’s expert testified that Mr. Aberth did not create a

conflict of interest by hiring his own law firm to defend the lawsuit. Notably, the trust allows

Mr. Aberth to hire attorneys to defend claims made against the trust and contains no provision

prohibiting Mr. Aberth from hiring his own law firm. In light of the record before us, we cannot

say that the probate court erred by holding that Mr. Aberth did not engage in self-dealing.

{¶23} Next, the Beneficiaries argue that Mr. Aberth breached his duty to use his special

skills and expertise as an attorney in his capacity as trustee, which is required under Section

5808.06. More specifically, the Beneficiaries note that the probate court did, in fact, find that

Mr. Aberth committed a technical breach of the trust when he paid court fees with an IOLTA

check when no funds from the trust were in the IOLTA account. While they acknowledge that

Mr. Aberth’s breach might not rise to the level of a serious breach of the trust, they argue that

this breach, when considered in light of the other breaches, contributes to a series of breaches

that amounts to a serious breach of the trust. But given our determination that the Beneficiaries

have not established that the probate court erred by holding that Mr. Aberth’s conduct did not

result in a breach of the trust, it follows that his actions, when considered together, did not result

in a serious breach of the trust.

{¶24} We now turn to the Beneficiaries’ first argument, that is, that the probate court

mistakenly believed that the Beneficiaries had to demonstrate that they suffered economic harm

as a result of the alleged breaches. In light of our determination that the Beneficiaries have not
 11

established that the probate court erred by holding that Mr. Aberth’s conduct did not result in a

breach of the trust, we need not address whether the probate court erred by noting that the

Beneficiaries did not suffer economic harm. This is because such a finding would not alter our

holding herein. Stated differently, even if the probate court erred by finding that the

Beneficiaries were required to suffer economic harm, the Beneficiaries have not met their burden

of establishing that the probate court erred by finding that Mr. Aberth did not breach the trust or

his fiduciary duties. Absent a breach, the issue of harm is rendered immaterial. We, therefore,

decline to address the merits of the Beneficiaries’ argument. The Beneficiaries’ second

assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT
DECLINED TO ENFORCE THE PROVISIONS OF THE OHIO PROBATE
CODE.

{¶25} In their third assignment of error, the Beneficiaries argue that the probate court

erred as a matter of law by failing to enforce the provisions of the Ohio Probate Code to the facts

presented. In particular, they argue that Mr. Aberth breached his duty of care by not listing

himself as a creditor on the Standard Probate Form 4.0, but listing himself as such on the Ohio

Estate Tax Return. Thus, they argue that Mr. Aberth was “sloppy in his handling of the Estate’s

finances and breached his duty of care to the Estate.” The Beneficiaries further argue that Mr.

Aberth breached his duty of care by not listing fees paid to his law firm on the Fiduciary’s

Account filed with the probate court. As a result, they argue, the probate court erred by finding

that no breach had occurred.

{¶26} Despite arguing that the probate court failed to enforce the provisions of the Ohio

Probate Code to the facts presented, the Beneficiaries’ assignment of error does not contain
 12

citations to any authorities or statutes in support of their position. App.R. 16(A)(7). Indeed, the

only citation to a statute is relegated to a footnote and addresses an ancillary issue, that is,

whether Section 5807.06(B)(3) requires a trustee to intentionally breach the trust. We, therefore,

decline to address the merits of this assignment of error. Cardone v. Cardone, 9th Dist. Summit

No. 18349, 1998 WL 224934, *8 (May 6, 1998). The Beneficiaries’ third assignment of error is

overruled.

ASSIGNMENT OF ERROR IV

THE PROBATE COURT ERRED AS A MATTER OF LAW BY PERMITTING
THE TRUSTEE TO WITHDRAW TRUST FUNDS TO PAY HIS LAW FIRM
AND HIMSELF.

{¶27} In their fourth assignment of error, the Beneficiaries argue that the probate court

erred as a matter of law when it permitted Mr. Aberth to use trust funds to pay himself and his

law firm. The Beneficiaries acknowledge that a trustee may be permitted to pay attorney’s fees

from a trust to defend his actions, but argue that he cannot do so when he breaches the trust.

{¶28} The Beneficiaries further argue that the probate court’s decision in this regard

violated their right to due process. Specifically, they note that they relied upon the probate

court’s April 1, 2015, judgment entry that indicated that the question of attorney’s fees would not

be addressed until Mr. Aberth filed an application for fees. Because the probate court later

approved Mr. Aberth’s attorney’s fees despite the fact that Mr. Aberth did not file an application,

they argue that they were denied notice and an opportunity to be heard on this issue.

{¶29} In light of our analysis and disposition of the preceding assignments or error, we

hold that the Beneficiaries’ first argument (i.e., that Mr. Aberth was not entitled to pay attorney’s

fees from the trust because he breached the trust) lacks merit. Regarding their due process

argument, we note that the Beneficiaries did not raise this argument in their objections to the
 13

magistrate’s decision. We, therefore, decline to address it. State v. Schwarz, 9th Dist. Medina

No. 02CA0042-M, 2003-Ohio-1294, ¶ 14, citing Belvedere Condominium Unit Owners’ Assn. v.

R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279 (1993) (“Courts have consistently held that

arguments which are not raised below may not be considered for the first time on appeal.”);

Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 598 (1995)

(declining to address a constitutional issue not raised below). The Beneficiaries’ fourth

assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE PROBATE COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION BY FAILING TO REMOVE THE TRUSTEE AS TRUSTEE
AND EXECUTOR.

{¶30} In their fifth assignment of error, the Beneficiaries argue that the probate court

abused its discretion by failing to remove Mr. Aberth as the trustee and executor in light of the

serious breaches of the trust and his mishandling of the estate. They also argue that the probate

court abused its discretion by failing to remove Mr. Aberth as the trustee as a result of his

persistent failure to administer the trust effectively. In response, Mr. Aberth argues that the

probate court considered all of the evidence, applied the applicable law, and properly concluded

that the Beneficiaries failed to prove their case by clear and convincing evidence.

{¶31} Section 5807.06(B) provides, in pertinent part, that a court may remove a trustee

if the trustee has committed a serious breach of the trust, or if the court determines that removal

of the trustee best serves the interests of the beneficiaries because of the trustee’s unfitness,

unwillingness, or persistent failure to administer the trust effectively. “The removal of a trustee

is generally considered a drastic action and the party seeking to remove a trustee must show a

basis for removal by clear and convincing evidence.” Tomazic v. Rapoport, 8th Dist. Cuyahoga
 14

No. 97937, 2012-Ohio-4402, ¶ 33. “The decision whether to remove a trustee lies within the

sound discretion of the probate court, and an appellate court will not reverse that decision absent

a showing of a clear abuse of that discretion.” In re Trust Estate of CNZ Trust, 9th Dist. Lorain

No. 06CA008940, 2007-Ohio-2265, ¶ 16. Notably, courts less readily remove a trustee named

by the settlor than one appointed by the court. Diemert v. Diemert, 8th Dist. Cuyahoga No.

82597, 2003-Ohio-6496, ¶ 16.

{¶32} In light of our analysis and disposition of the Beneficiaries’ preceding

assignments of error, we hold that the Beneficiaries have not established that the probate court

abused its discretion by not removing Mr. Aberth as the trustee or executor. Accordingly, the

Beneficiaries’ fifth assignment of error is overruled.

III.

{¶33} Plaintiffs-Appellants Rachel Cavanaugh Gorby and Robert Donnan Cavanaugh’s

assignments of error are overruled. The judgment of the Summit County Court of Common

Pleas, Probate Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

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
 15

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 Appellants.

JENNIFER HENSAL
FOR THE COURT

MOORE, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.

APPEARANCES:

DOUGLAS G. LEAK, Attorney at Law, for Appellants.

JAMES T. STIMLER, Attorney at Law for Appellants.

JOHN P. SUSANY and KATHLEEN A. HAHNER, Attorneys at Law, for Appellee.