Wilson v. S. Euclid , 2016 Ohio 3258 ( 2016 )

[Cite as Wilson v. S. Euclid, 2016-Ohio-3258.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103067
TENISHA R. WILSON, ET AL.
PLAINTIFFS- APPELLANTS
vs.
CITY OF SOUTH EUCLID
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-818816
BEFORE: Stewart, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: June 2, 2016
ATTORNEYS FOR APPELLANTS
Janay M. Stevens
Nita L. Hanson
Dinsmore & Shohl, L.L.P.
191 W. Nationwide Boulevard, Suite 300
Columbus, OH 43215
ATTORNEYS FOR APPELLEES
Michael P. Lograsso
Law Director, City of South Euclid
1349 South Green Road
South Euclid, OH 44121
Anthony J. Coyne
Justin J. Eddy
Mansour Gavin, L.P.A.
North Point Tower, Suite 1400
1001 Lakeside Avenue
Cleveland, OH 44114
MELODY J. STEWART, J.:
{¶1} Plaintiff-appellant Tenisha Wilson’s property, in the defendant-appellee city
of South Euclid, abuts a “paper street”— a street that was platted but never physically
constructed. After years of being held responsible for the upkeep and maintenance of the
street, Wilson and her husband, plaintiff-appellant Denman Gordon, asked the city to
vacate the street to them. The city refused, so Wilson and Gordon filed this action.1
Wilson seeks, among other things, a declaration that the city abandoned the street and that
the street should be vacated to her, along with compensatory damages representing the
amount of money she expended over time in maintaining the street. The court granted
the city’s motion for summary judgment, finding that the undisputed evidence showed
that the city had not abandoned the public use of the road for the requisite 21-year period,
nor had Wilson established that she exerted uninterrupted ownership and control over the
property for 21 years. Wilson appeals, assigning as error that the trial court erred in
granting summary judgment to the city on her claims of abandonment, vacation, and
disparate treatment.
Hereinafter we will address Wilson’s and Gordon’s claims collectively by reference to
1
Wilson as the named property owner.
{¶2} The street in question was platted as “Laurens Avenue,” but never
constructed. As originally platted, Laurens Avenue was meant to connect Newberry
Avenue and Clinton Avenue at their southern terminus. Newberry Avenue and Clinton
Avenue originate at South Green Road and run southerly and parallel to each other before
dead-ending into Laurens Avenue. A fence runs along the southern boundary of Laurens
Avenue.
{¶3} Wilson lives at the southwest corner of Newberry Avenue where it dead-ends
into Laurens. The deed to the property contains the following land description:
[B]eing 29.87 feet from front of the Westerly side of Newberry Avenue,
31.55 feet on the curved turnout between the Westerly side of Newberry
Avenue and the Northerly side of Laurens Avenue and extending back 160
feet deep on the Northerly line, 139.87 feet deep on the Southerly line,
which is also the Northerly side of Laurens Avenue and having a rear line
of 50 feet, as appears by said plat, to be the same more or less, but subject
to all legal highways.
{¶4} As would be expected of a “paper street,” there are no street signs indicating
the presence of Laurens Avenue. In its present condition, the part of Laurens Avenue
near Newberry Avenue consists of an asphalt roadway or driveway that connects to
Wilson’s driveway and garage (the garage is located behind the house). Where the
roadway ends, the remainder of the paper street is green space — containing what even
the city characterizes as “a wooded area.” Motion for Summary Judgment at 4.
Photographs suggest that there is a path through the wooded area, but that the path would
be too narrow for motor vehicle access.
{¶5} The former owner of Wilson’s house testified in deposition that when he
bought the house in 1982, Laurens Avenue existed as an “uneven road” consisting of a
mixture of dirt and gravel that led back to the garage. He claimed that at the time he
bought the house, he was told that the strip of land was his property and he used it as a
driveway. In 1983, he discovered that the land belonged to the city. The former owner
said that the city’s street department ordered him to pave the road, even over his protest
that the strip of land belonged to the city and that the city should be responsible for the
cost of paving it. According to the former owner, a street department employee said “no,
you pave it or I will cite you.” The city concedes that the “driveway is in part located on
Laurens Avenue.” Motion for Summary Judgment, at 8.
{¶6} In addition to being told to pave the driveway, the former owner testified at
deposition that he received a written citation from the city ordering him to remove tree
limbs that had fallen on Laurens. The former owner said that he went to the city to
complain about being forced to maintain the avenue, but was told that “it was private
property and [the city] couldn’t drive the trucks up there.”
{¶7} Among other improvements he made to the property, including landscaping
parts of Laurens, the former owner installed an in-ground sprinkler system. Two of the
sprinkler heads were installed on both sides of the driveway, meaning that at least some
of the sprinkler heads were on part of the land comprising the avenue. The former owner
testified that at no time did the city mow the grass, remove dead leaves, or plow snow
from the street. The maintenance of Laurens was solely his responsibility. And when
the former owner listed the house for sale, a city point of sale inspection ordered him to
make repairs to the driveway. The former owner said that when he sold the house in
1991, he told the buyers that the land belonged to the city.
{¶8} Wilson bought the house in 1996. She admitted that at the time she
purchased the house, she had no paperwork indicating that she owned the land comprising
Laurens Avenue. Nevertheless, as with the prior owner, the city cited Wilson with
maintenance violations of the driveway, causing her to believe that she owned the land.
Those citations were issued in October 2001, July 2002, and April 2008. In January
2010, the city gave Wilson notice of a maintenance code violation with orders to make
repairs to a part of Laurens damaged by tire tracks caused by vehicles from the city of
Cleveland Water Department used to make repairs to a water main.
{¶9} In 2008, Wilson became aware that the city was claiming ownership of
Laurens. She also became aware that the property owner across the street from her (that
owner occupied sublot 152; Wilson occupied sublot 151) had a portion of Laurens
vacated to him. Wilson contacted the city’s building inspector and the city’s building
commissioner to inquire about having the portion of the avenue abutting her property
vacated to her. The building inspector told Wilson to petition the city’s law director.
{¶10} In August 2010, Wilson made a formal request to the city’s law director to
vacate a portion of Laurens Avenue to her. She received no response. Wilson again
submitted a request for vacation in writing to the city law director in July 2013. The law
director did not formally respond to Wilson’s request. However, in a meeting with
Wilson, the law director, along with the city engineer and the city service director, agreed
that the city would place “no trespassing” signs in the area in response to Wilson’s
immediate complaints about persons loitering on Laurens. Those signs were removed
just days later after a city resident complained.
{¶11} Wilson then sought assistance from her councilwoman. The councilwoman
introduced a resolution to have Laurens Avenue vacated to Wilson. The same resident
who objected to the “no trespassing” signs objected to the legislation, and the ordinance
never made it out of committee. Wilson then filed this action.
{¶12} A landowner like Wilson has several ways of seeking a vacation of a street.
There are two statutory methods: by petition to the legislative authority under R.C. 723.04
or by petition to the court of common pleas under R.C. 723.09. Bayer v. N. Coll. Hill, 31
Ohio App.3d 208, 210, 510 N.E.2d 400 (1st Dist.1986). In addition, a landowner
seeking vacation of a street can attempt to show that the street has been abandoned.2
{¶13} As previously mentioned, Wilson did petition the city for a vacation of
Laurens, but the legislative response to that effort was that the proposed legislation did
not make it out of committee. That petition is not a part of this action.
{¶14} Wilson petitioned the common pleas court to order vacation of Laurens
under R.C. 723.09. That section states:
Wilson’s complaint also raised a claim of adverse possession, but that claim failed below
2
because of the general rule that “adverse possession cannot be applied against the state and its
political subdivisions.” 1540 Columbus Corp. v. Cuyahoga Cty., 68 Ohio App.3d 713, 717, 589
N.E.2d 467 (8th Dist.1990). The reason for this rule is that “the public, for whom the municipality
holds the property in trust, should not suffer for a government’s negligence or inattention no matter
what the land’s purpose.” Nusekabel v. Cincinnati Pub. School Emps. Credit Union, 125 Ohio
App.3d 427, 436, 708 N.E.2d 1015 (1st Dist.1997). Thus, “[n]o adverse occupation and user of land
belonging to the State of Ohio, however long continued, can divest the title of the State in and to such
lands.” Haynes v. Jones, 91 Ohio St. 197, 110 N.E. 469 (1915), paragraph three of the syllabus. A
statutory exception to this general rule exists under R.C. 2305.05, for a street or highway that has not
been open for public use and an adjoining landowner fences in all or a portion of the street and
remains in open, uninterrupted use of the enclosed area for the requisite 21-year period. Barrett v.
Wilmington, 12th Dist. Clinton No. CA2015-02-006, 2016-Ohio-2776, ¶ 12. Wilson did not fence
off any portion of Laurens Avenue and, in fact, no longer makes any claim of adverse possession.
The court of common pleas may, upon petition filed in such court by any
person owning a lot in a municipal corporation, for the establishment or
vacation of a street or alley in the immediate vicinity of such lot, upon
hearing, and upon being satisfied that it will conduce to the general interests
of such municipal corporation, declare such street or alley established or
vacated, but this method shall be in addition to those prescribed in sections
723.04 to 723.08, inclusive, and section 723.02 of the Revised Code.
{¶15} R.C. 723.09 envisions an adversarial proceeding on a petition to order
vacation. Bretell v. Steubenville, 7th Dist. Jefferson No. 89-J-44, 1990 Ohio App.
LEXIS 4666 (Oct. 25, 1990). To hold otherwise would render the requirement for a
“hearing” a nullity. For this reason, R.C. 723.09 claims are not ordinarily amenable to
disposition by summary judgment. The parties could, of course, stipulate to the absence
of any genuine issue of material fact and submit the matter on briefs. But that did not
occur here. And in her brief in opposition to the city’s motion for summary judgment,
Wilson did not acknowledge the absence of any genuine issue of material fact. The court
should not have granted summary judgment on Wilson’s R.C. 723.09 petition.
{¶16} Even if the court could dispose of Wilson’s R.C. 723.09 petition by
summary judgment, it erred by finding that the city met its initial burden of showing the
absence of any genuine issue of material fact.
{¶17} The city’s motion for summary judgment claimed entitlement to judgment as
a matter of law on Wilson’s petition, arguing that she provided nothing but unsupported
conclusions that vacation of Laurens Avenue would be conducive to the general interests
of the city — it argued that Wilson would “presumably” assert that vacation of Laurens
would save the city money, but that she offered no direct evidence to support that
assertion. The court agreed with the city, stating that “there remain no genuine issues of
fact that granting plaintiffs request for a vacation of Laurens Ave. would not conduce to
the general interests of the city of South Euclid.”
{¶18} Civ.R. 56(C) allows the court to grant summary judgment when there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law.
In Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996), the Supreme Court
emphasized that the party seeking summary judgment bears the initial burden of proving
the absence of any genuine issue of material fact, even with respect to issues that the
non-moving party would have the burden of proving at trial. Id. at 295.
{¶19} Because R.C. 723.09 permits vacation of a city street upon a showing that it
would be conducive to the city’s interests, the city, as the party opposing Wilson’s request
for vacation, had the burden of showing in its motion for summary judgment that the
vacation of Laurens Avenue would not be conducive to the city’s general interests. But
rather than make an affirmative argument that vacation would not be conducive to the
city’s interests, the city argued only that Wilson could not prove her “bare assertion” that
vacation would be conducive to the city’s general interests. This was insufficient for
purposes of Civ.R. 56(C) — “a moving party cannot discharge its burden under Civ.R. 56
simply by making conclusory assertions that the non-moving party has no evidence to
prove its case.” Franks v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
12AP-442, 2013-Ohio-1519, ¶ 5.
{¶20} The only evidence even remotely touching on the issue of whether vacation
would not be conducive to its best interests was the city’s statement that “the general
public clearly uses Laurens Ave. as a public way.” What the city and the court below
called the “general public,” Wilson characterized as “strange people walking through.”
In the letter that Wilson sent to the city’s law director to request vacation of Laurens,
Wilson explained that she had seen people walking through between the hours of 12 a.m.
to 3 a.m. In her deposition testimony, she said that these people left behind “debris” that
consisted of empty beer cans. We assume that the use of Laurens Avenue for late-night
drinking is not an interest the city wishes to protect.
{¶21} In fact, the city could identify only one member of the public who used
Laurens — the same citizen who objected to the “no trespassing” signs placed on the
avenue. The citizen wrote the city a letter in which she represented that she was a city
resident “in the area of Laurens Avenue” and was attempting to access Laurens to reach
Newberry Avenue when she discovered the no trespassing signs. The citizen’s letter
gives no indication of how often she used, or uses, Laurens. For evidentiary purposes,
the court could assume no more than that the citizen attempted to use Laurens a single
time. This is not enough to constitute use by the general public, and certainly not enough
to show that vacation of Laurens would not be conducive to the city’s general interest.
{¶22} The other means Wilson had to seek vacation of Laurens Avenue was under
a theory of abandonment.
{¶23} When a developer creates a plat of a subdivision, a city’s recording of the
plat constitutes a conveyance that vests in the municipal corporation “the fee of the parcel
of land designated or intended for streets, alleys, ways, commons, or other public uses, to
be held in the corporate name in trust to and for the uses and purposes set forth in the
instrument.” R.C. 711.07. Nevertheless, streets shown on a plat may not be
constructed, so they exist merely on “paper” — hence the term “paper street.” Ambrose
v. Kuhn, 11 Ohio Dec.Rep. 338 (C.P.1891); Shapiro v. Burton, 23 Mass.App.Ct. 327, 502
N.E.2d 545 (1987), fn. 3. When the land involved is a paper street, once dedicated as
such, “it is held in trust for street or alley purposes and reverts to the grantor or those
claiming under the grantor when it is abandoned or vacated.” State ex rel. Shemo v.
Mayfield Hts., 95 Ohio St.3d 59, 68, 765 N.E.2d 345 (2002).
{¶24} A municipality can abandon land. In G&M Smith Family L.P. v. Mingo
Junction, Ohio, 7th Dist. Jefferson No. 14 JE 11, 2014-Ohio-5857, the court noted:
There are essentially two principal elements to prove abandonment of a
street. The first is 21 years of nonuse. Shemo at 68. Nonuse means
ceasing all acts of enjoyment on the property. Id. The second is an intent
to abandon on the part of the municipality. Wyatt v. Ohio Dept. of Transp.,
87 Ohio App.3d 1, 3-4, 621 N.E.2d 822 (11th Dist.1993).
Id. at ¶ 31.
{¶25} Abandonment is difficult to prove. For example, in Nail & Iron Co. v.
Furnace Co., 46 Ohio St. 544, 22 N.E. 639 (1889), the Supreme Court held that:
Under a claim of abandonment of a road in a municipal corporation, proof
that no work had been done on the road by the public authorities for fifteen
years; that the road was at times in bad condition and impassable; that it
passed over a steep hill; was difficult of use; that a new road had been
established in the vicinity intended to take its place; that for eleven years
before suit was brought travel had been substantially diverted to the new
road, and that portions of the old road had been fenced in, are not sufficient
to show abandonment by the public.
Id. at paragraph one of the syllabus.
{¶26} Unlike an R.C. 723.09 petition, a claim that a city has abandoned a paper
street is not subject to being disposed of only by a hearing, so Wilson’s abandonment
claim was amenable to disposition by way of summary judgment. The court held that
Wilson failed to show that all public use and enjoyment of the property had ceased for 21
years.
{¶27} The prior owner of Wilson’s house lived there from 1982 to 1991. He
testified at deposition that at “no time” did he ever see city workers maintaining the
property and that he alone maintained Laurens. And when ordered by the city to pave
the roadway, the former owner protested that Laurens Avenue was a city street and that
the city should bear the cost of paving it. He was told to pave it or be cited. Reasonable
minds could find that the city’s insistence that the prior owner maintain the property
under threat of being cited showed an abandonment.
{¶28} Wilson purchased the house in May 1996 from the Department of Housing
and Urban Development and continues to reside at the property. Like the former owner,
she was told to make substantial repairs to the Laurens Avenue portion of the property,
even after complaining that it was not her responsibility. This complaint was made after
the city of Cleveland Water Department apparently damaged portions of the roadway and
Wilson’s lawn when repairing a water main break. Wilson testified that the city of
Cleveland failed to return to repair the damage as promised. Nevertheless, the city cited
Wilson for the condition of the property, specifically ordering her to make repairs to the
same roadway/driveway that it now claims is city property. Wilson offered evidence that
the city three times cited her for failing to maintain the driveway. She also testified in
deposition that she maintained Laurens and offered invoices from a landscaping company
as proof. Viewing the evidence most favorably to Wilson, we conclude that reasonable
minds could disagree on whether the evidence showed that the city had abandoned
Laurens Avenue.
{¶29} The city offered some evidence to support its position that it did not
abandon the avenue, but that evidence tended to conflict. For example, the previous
owner of Wilson’s house had placed railroad ties and landscaping on Laurens in an
attempt to block access from Clinton Avenue, but had been told by city officials to
remove them. That order could obviously be viewed as an assertion of the city’s control
over Laurens, but the spirit of that order conflicted with the city’s demand that the prior
owner install, at his own expense, a driveway on what the city claims is a public street.
In fact, reasonable minds could find the city’s position perplexing: it is difficult to
reconcile the city’s claim of ownership of Laurens Avenue with undisputed evidence that
it has repeatedly placed the onus and cost of maintaining the purported public street on
private property owners whose land abuts it, even to the point of threatening criminal
prosecution for those who did not comply with its maintenance citations.
{¶30} As another example of the conflict in the city’s evidence, in 2013, it agreed
to place “no trespassing” signs on Laurens. The act of placing “no trespassing” signs
was inconsistent with the city’s position that the avenue was a public street — in other
words, how can the avenue be used for public access when the public was prohibited
from using it. What is more, the city offered no evidence to show that the “no
trespassing” signs clearly stated that they referred to city property. Reasonable minds
could view the city’s act of placing the “no trespassing” signs as a signal to the public that
the land comprising Laurens Avenue was private property belonging to the adjoining
homeowners.
{¶31} The city offered records from its maintenance department to show that it had
performed maintenance work at the “Newberry dead end” from at least 2004, but there
was no evidence to show exactly where the maintenance had been performed. None of
the city’s service records refer expressly to Laurens Avenue; they referred only to the
“Newbury [sic] dead end.” The reference to a “dead end” might have referred only to
the terminus of Newberry Avenue, a part of the street that would plainly be the city’s
responsibility to maintain (photographs show that Newberry Avenue dead-ends into a
fence where leaves and other debris accumulate). The city’s service director had no
firsthand knowledge of what the maintenance on the Newberry dead-end entailed. He
testified at deposition that he sometimes plowed snow on the Newberry Avenue dead-end,
but said that he did not actually plow Laurens Avenue. With the absence of any specific
evidence to show that any maintenance had been done on Laurens, Wilson is entitled to
an inference that the city only maintained the Newberry Avenue part of the dead-end.
{¶32} The remaining question is whether Wilson offered evidence from which
reasonable minds could find the requisite 21-year period of abandonment. There is a gap
in time to show 21 years of continuous abandonment of Laurens: the former owner lived
at the Newberry address for nine years (1982-1991) and at the time Wilson filed her
complaint in December 2013, she had lived at the Newberry address since 1996, or 17
years. The gap occurred between 1991 and 1996, when the house sat vacant in
foreclosure.3
In its motion for summary judgment, the city maintained that HUD acquired the property
3
{¶33} Taken individually, the ownership by either homeowner could not prove
continuous abandonment; however, Wilson could tack time to prove a continuous
abandonment. Although we have noted that city property is not subject to claims of
adverse possession, the law relating to tacking in the context of adverse possession is
instructive on claims that a city abandoned a street. In Zipf v. Dalgarn, 114 Ohio St. 291,
151 N.E. 174 (1926), the Supreme Court stated:
“Successive adverse users by different persons may be tacked in order to
make up the prescriptive period, provided there is privity or contractual
connection between them, and there is no interval between the successive
possessions during which the use was not adverse. Thus the term of
enjoyment requisite for a prescription is deemed to be uninterrupted when it
is continued from ancestor to heir, and from seller to buyer.”
Id. at 296, quoting 1, Thompson on Real Property, Section 404.
{¶34} Although Wilson had no evidence to show whether the city had abandoned
Laurens during the five-year gap, the city failed to offer any evidence to show that it
exercised dominion and control over the avenue during that time period. As the party
opposing the motion for summary judgment, Wilson is entitled to the inference that the
city did nothing to maintain Laurens during that five-year period because that inference is
consistent with the evidence that the city did nothing to maintain the avenue in the many
years both before and after the five-year vacancy.
from the former owner via foreclosure in 1991. Motion for Summary Judgment at 6. This
assertion was in conflict with the prior owner’s deposition testimony that he sold the property to a
husband and wife. Campbell Dep. at 42.
{¶35} It follows that reasonable minds could differ on whether the city abandoned
Laurens Avenue for the requisite 21-year period. The court erred by granting summary
judgment on Wilson’s abandonment claim.
{¶36} Wilson’s final argument is the court erred by granting summary judgment on
her disparate treatment claim. The substance of that claim was that in 1961, the city
vacated a portion of Laurens Avenue to the owner of sublot 152, a property opposite
Wilson’s on Newberry Avenue, and the city’s refusal to grant her the same consideration
on her request for vacation was unreasonable and arbitrary. She argues that the city all
but ignored her request for vacation, in contravention to the other, similarly situated
resident of Newberry Avenue whose request for vacation was granted.
{¶37} The court granted summary judgment because it found no evidence to show
that Wilson had been treated differently on account of her race. In fact, Wilson’s
disparate treatment claim is premised on the “class-of-one” theory — that she had been
intentionally treated differently from others who were similarly situated and that there
was no rational basis for the difference in treatment.
{¶38} The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution states that “[n]o state shall deny to any person within its jurisdiction
the equal protection of the law.” This clause has been construed to require that “that
individuals be treated in a manner similar to others in like circumstances.” McCrone v.
Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6. Ordinarily,
an equal protection claim requires a person to show intentional discrimination because of
that person’s membership in a particular class. However, in Willowbrook v. Olech, 528
U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the United States Supreme Court
held that
“the purpose of the equal protection clause of the Fourteenth Amendment is
to secure every person within the State’s jurisdiction against intentional and
arbitrary discrimination[,]” so all that is needed to involve the Equal
Protection Clause is that plaintiff allege arbitrary treatment, as measured
against others similarly situated.
Id. at 564, quoting Sioux City Bridge Co. v. Dakota Cty., 260 U.S. 441, 445, 43 S.Ct. 190,
67 L.Ed. 340 (1923). To prove a “class of one” claim, Wilson must show both that she
has been “intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Id.{¶39} Wilson did not allege race as a basis for her disparate treatment (the
amended complaint fails to even specify her race), nor was her race a necessary element
of her class-of-one claim for relief. To be fair, Wilson’s brief in opposition to the city’s
motion for summary judgment mentions that the owners of sublot 152 were Caucasian
and that she is African-American, and Wilson also makes an argument in her appellate
brief that mentions race. However, the substance of both Wilson’s amended complaint
and her opposition to the motion for summary judgment makes clear that the disparate
treatment claim is premised on the city refusing to vacate the portion of Laurens Avenue
abutting her property when it previously granted a similar request to the owners of the lot
directly across the street from her. Wilson’s mention of her race has no bearing on the
substance of her disparate treatment claim. The court erroneously relied on race as the
basis for the disparate treatment claim for relief. Because the court has yet to consider
the validity of the disparate treatment claim as pleaded, we reverse the summary judgment
on this claim also.
{¶40} Judgment reversed and remanded.
It is ordered that appellants recover of said 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.
______________________________________________
MELODY J. STEWART, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR