Found. Medici v. Butler Inst. of Am. Art , 2022 Ohio 2923 ( 2022 )

[Cite as Found. Medici v. Butler Inst. of Am. Art, 2022-Ohio-2923.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
FOUNDATION MEDICI, CASE NO. 2020-T-0042
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
THE BUTLER INSTITUTE OF
AMERICAN ART, Trial Court No. 2019 CV 01799
Defendant-Appellee.
OPINION
Decided: August 22, 2022
Judgment: Affirmed
Michael D. Rossi, Guarnieri & Secrest, PLL, 151 East Market Street, P.O. Box 4270,
Warren, Ohio 44482, and Thomas C. Nader, Nader & Nader, 7011 East Market Street,
Warren, Ohio 44484 (For Plaintiff-Appellant).
Thomas J. Wilson, Comstock, Springer & Wilson, Co., LPA, 100 Federal Plaza East,
Suite 926, Youngstown, Ohio 44503 (For Defendant-Appellee).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Foundation Medici (“Medici”), appeals the trial court’s decision
awarding summary judgment in favor of appellee, The Butler Institute of American Art
(“Butler”). We affirm.
{¶2} In May 1995, Medici and Butler entered into an agreement for the operation
of a Butler museum branch in Trumbull County on real estate owned by Medici. The
parties also entered into a written lease in May 1995, in which Butler leased property in
Trumbull County from Medici for 99 years to operate the Trumbull County branch. After
five years, the lease permitted either party to terminate the agreement.
{¶3} In June 2019, Medici sent Butler notice of intent to cancel the lease
agreement, and in response, Butler advised Medici of its intent to remove its artwork.
{¶4} Medici filed suit in November 2019, seeking temporary and permanent
injunctions enjoining Butler from removing four pieces of art that it alleges were to remain
at Medici. The parties narrowed Medici’s claim down to one piece, the untitled Pierre
Soulages terra-cotta mural, which has been displayed at the Trumbull County
branch/Medici building since Butler acquired it.
{¶5} Medici filed an amended complaint in January 2020 and sought declaratory
judgment that the mural is a permanent fixture to the building; that the mural was an
improvement and endowment; and that the mural is held in charitable trust, owned by
Butler as trustee to be displayed at the Medici building.
{¶6} Butler filed an answer and counterclaim contending that it paid $250,000 to
construct an addition at the Medici, and as a result of Medici’s premature cancellation of
the parties’ 99-year lease, Medici is unjustly enriched by its retention of the addition, which
Butler can no longer use. Medici moved to dismiss the counterclaim.
{¶7} Thereafter, the trial court held an evidentiary hearing on the issue of “the
ownership and possession” of the mural. At the hearing, the trial court stated that the
hearing was being held to “sort out certain issues of fact that we haven’t received
stipulations on, and we’re going to go through the agreed-upon exhibits here. After this,
the parties will have an opportunity to brief this and file cross motions of summary
judgment on the legal issues.”
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{¶8} After the hearing, the parties filed motions for summary judgment. Before
ruling on the competing summary judgment motions, the trial court overruled Medici’s
motion to dismiss Butler’s counterclaim. Thereafter, Medici moved for judgment on the
pleadings as to Butler’s counterclaim raising the same argument.
{¶9} The trial court granted Butler’s motion for summary judgment and overruled
Medici’s motions for summary judgment and for judgment on the pleadings. The court
did not, affirmatively rule on the counterclaim, which remains pending, but it did find no
just cause for delay.
{¶10} Medici’s sole assigned error asserts:
{¶11} “The trial court erred in denying appellant, Foundation Medici’s Motion to
Dismiss Counterclaim; in denying Medici’s Motion for Judgment on the Pleadings; in
denying Medici’s Motion for Summary Judgment; and in granting Appellee, Butler Institute
of American Art’s Motion for Summary Judgment on Medici's ‘fixture’ and ‘declaration of
charitable trust’ claims.”
{¶12} Medici’s assigned error consists of four arguments. First, it argues the trial
court erred as a matter of law by overruling its motion to dismiss and motion for judgment
on the pleadings regarding Butler’s counterclaim for unjust enrichment. Medici claims
that a cause of action for unjust enrichment cannot stand when it arises from a written
agreement unless a companion claim is filed for fraud, bad faith, or illegality in the
contract’s performance.
{¶13} As stated, however, Medici appeals from the trial court’s decision awarding
Butler summary judgment, which resolves Medici’s claims against Butler but does not
determine the merits of Butler’s counterclaim. The judgment appealed only resolves and
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disposes of Medici’s causes of action and, by the court’s inclusion of the “no just reason
for delay” language from Civ.R. 54(B), prevents any further judgment on Medici’s
affirmative claims for relief against Butler. Regional Imaging Consultants Corp. v.
Computer Billing Servs., Inc., 7th Dist. Mahoning No. 00 CA 79, 2001 WL 1539261, *6
(Nov. 30, 2001).
{¶14} Although the trial court denied Medici’s motion to dismiss and motion for
judgment on the pleadings that sought dismissal of Butler’s counterclaim, the trial court
has not determined that Butler’s counterclaim has merit or awarded it damages. Thus,
we are without authority to address it. Id. (the judgment does not qualify as a final
appealable order on the claim because it does not resolve the dispute); R.C. 2505.02(B).
Because the court did not rule on the merits of Butler’s counterclaim, its denial of the
motion to dismiss and motion for judgment on the pleadings are not reviewable at this
juncture. See Kierland Crossing, LLC v. Ruth’s Chris Steak House, Inc., 10th Dist.
Franklin No. 11AP-627, 2011-Ohio-5626, ¶ 10.
{¶15} Accordingly, we do not address Medici’s argument that the existence of a
written agreement precludes a cause of action for unjust enrichment, and this aspect of
its first assigned error is overruled.
{¶16} Medici’s second argument under its sole assigned error claims that the trial
court erred in its application of the three-part test governing whether an item is a fixture
that has converted into realty and that the court incorrectly held that the terra-cotta mural
is not a fixture.
{¶17} The trial court found that the mural, which was gifted to Butler, is not affixed
to the building and that although Butler wanted the mural displayed at the Trumbull County
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branch, there is nothing evidencing that Butler intended for the mural to become part of
the realty. The trial court concluded that “there is no evidence to support the
characterization of the [mural] as a fixture according to the requirements.”
{¶18} We review decisions awarding summary judgment de novo, meaning we
review the trial court’s decision independently and without deference, pursuant to the
standards in Civ.R. 56(C). Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704,
711, 622 N.E.2d 1153 (4th Dist.1993); Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd.
of Commrs., 121 Ohio App.3d 188, 191-192, 699 N.E.2d 534 (8th Dist.1997).
Summary judgment is appropriate when (1) no genuine issue
as to any material fact exists; (2) the party moving
for summary judgment is entitled to judgment as a matter of
law; and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one
conclusion adverse to the nonmoving party. Holliman v.
Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532(1999). The initial burden is on the moving party to set forth
specific facts demonstrating that no issue of material fact
exists and the moving party is entitled to judgment as a matter
of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996). If the movant meets this burden, the
burden shifts to the nonmoving party to establish that a
genuine issue of material fact exists for trial. Id.Allen v. 5125 Peno, LLC, 2017-Ohio-8941, 101 N.E.3d 484, ¶ 6 (11th Dist.).
{¶19} Moreover, not every factual dispute precludes summary judgment; only
disputes as to the material facts that may affect the outcome preclude summary judgment.
Bender v. Logan, 2016-Ohio-5317, 76 N.E.3d 336, ¶ 49 (4th Dist.), citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶20} Due to the particular procedure employed by the trial court here, to which
the parties agreed, the trial court took testimony of several witnesses, and the parties
relied on this evidence in support of their summary judgment motions. We review the
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remaining issues pertaining to fixtures and charitable trusts mindful that courts may not
weigh competing evidence or choose among reasonable inferences in ruling on summary
judgment. See Kalan v. Fox, 187 Ohio App.3d 687, 2010-Ohio-2951, 933 N.E.2d 337, ¶
44 (11th Dist.)
{¶21} Applying “the principles of law with reference to fixtures or improvements
upon real estate is difficult and depends upon the particular circumstances of each case
* * *.” Roseville Pottery, Inc. v. Cty. Bd. of Revision of Muskingum Cty., 149 Ohio St. 89,
98, 77 N.E.2d 608 (1948).
{¶22} The parties’ lease states in pertinent parts:
7. Repairs * * * Lessee will deliver up and surrender to Lessor
possession of the premises upon the expiration of this lease
in as good condition and repair as the same shall be in the
commencement of the lease, loss by fire and other casualty
and ordinary wear, decay, depreciation and obsolescence
only excepted. * * *
13. Alterations * * * All alterations and additions to the
Premises shall be made in accordance with all applicable laws
and shall remain for the benefit of the Lessor unless otherwise
provided in such written consent to the Lessor[.] * * *
14. Trade Fixtures and Equipment. Lessee may, at the
expiration of the term, remove all of Lessee’s trade fixtures
and equipment which can be removed without costly injury to
or undue defacement of the Premises, provided all rents
stipulated are paid in full and Lessee is not otherwise in
default hereunder, and that any and all damage to the
Premises resulting from or caused by such removal shall be
promptly repaired at Lessee’s expense.
{¶23} Here, the parties do not dispute that an addition was built with the expressed
purpose of housing the mural, and this addition will remain with the real estate. Instead,
their dispute focuses only on whether the terra-cotta mural itself constitutes a “fixture.”
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{¶24} “‘A fixture is an item of property which was a chattel but which has been so
affixed to realty for a combined functional use that it has become a part and parcel of it.’”
State Farm Fire & Cas. Ins. Co. v. Kall, 11th Dist. Geauga No. 98-G-2203, 2000 WL
522524, *3 (March 31, 2000), quoting Holland Furnace Co. v. Trumbull S. & L., 135 Ohio
St. 48, 19 N.E.2d 273 (1939), paragraph one of the syllabus.
{¶25} Unlike a fixture, a “trade fixture” is “[r]emovable personal property that a
tenant attaches to leased land for business purposes, such as a display counter. • Despite
its name, a trade fixture is not [usually] treated as a fixture — that is, as irremovable.”
FIXTURE, Black’s Law Dictionary (11th ed. 2019).
“‘Trade fixtures’ are those which the tenant places on demised
premises to promote the purpose of his occupation, and which
he may remove during his term. In dealing with trade fixtures,
the distinction to be observed is between the business which
is carried on upon the premises, and the premises
themselves.”
Brown v. DuBois, 40 Ohio Misc.2d 18, 19-20, 532 N.E.2d 223 (M.C.1988), quoting
50 Ohio Jurisprudence 3d, Fixtures, Section 21, at 119-120 (1984) (footnotes omitted).
{¶26} To determine whether an item of personal property has become a “fixture,”
we apply the three-part test formulated by the Supreme Court of Ohio in Teaff v. Hewitt,
1 Ohio St. 511, 511 (1853):
The true criterion of a fixture is the united application of the
following requisites, to wit: 1st. Actual annexation to the realty,
or something appurtenant thereto. 2d. Application to the use,
or purpose, to which that part of the realty with which it is
connected, is appropriated. 3d. The intention of the party
making the annexation, to make a permanent accession to the
freehold.
{¶27} While Teaff set out the three legal requirements which must
be met before a piece of chattel becomes a fixture, this
general rule has been reviewed and refined by the Supreme
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Court of Ohio over the years. For example, a [subsequent]
decision by the court has delineated several factors which a
court should use when making the above determination.
Those factors include:
“[T]he nature of the property; the manner in which it is
annexed to the realty; the purpose for which the annexation is
made; the intention of the annexing party to make the property
a part of the realty; the degree of difficulty and extent of any
loss involved in removing the property from the realty; and the
damage to the severed property which such removal would
cause.” Masheter v. Boehm (1974), 37 Ohio St.2d 68, 307
N.E.2d 533, paragraph two of the syllabus.
The Masheter court expressed an unmistakable desire to
create a “proper rule of law, which provides that degree of
flexibility and accommodation to circumstances necessary to
ensure that * * * [the parties] will be dealt with fairly, with
neither enjoying a windfall gain nor suffering unfair
deprivation.” Id. at 76-77, 307 N.E.2d 533. Accordingly,
whether a particular item is real or personal property is a
mixed question of law and fact. G & L Investments v.
Designer’s Workshop, Inc. (June 26, 1998), Lake App. No.
97-L-072, unreported, at 3, 1998 WL 553213.
State Farm Fire & Cas. Ins. Co., 2000 WL 522524, at *3.
{¶28} The first Teaff element, physical attachment of the article to the realty or
something appurtenant to it, has been deemed the least important of the factors, and
even slight attachment may be sufficient to give chattel the character of a fixture.
Holland Furnace Co., 135 Ohio St. at 52-53.
{¶29} Here, the mural was affixed to a custom aluminum frame for display at the
Trumbull County branch, but it is undisputed that it was hung with the capability of being
removed. The disassembly and removal of the terra-cotta mural from its display will take
approximately ten days and cause limited property damage to the custom frame, which
Butler contends it will repair. And after its removal, the room that currently houses the
mural can continue to be used to display other artwork. Assuming, without deciding, that
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the mural was “affixed” to the real estate for purposes of the first Teaff factor, the mural
fails as a fixture under the two remaining Teaff factors. See G & L Invests. at *3 (The
Teaff “tests must all be met before a chattel is characterized as a fixture that becomes
accessory to the realty[.]”).
{¶30} The second Teaff factor requires the article be appropriated to the use of
the land:
The Supreme Court in Zangerle [v. Republic Steel Corp., 144
Ohio St. 529, 530, 60 N.E.2d 170, 171 (1945)] succinctly
explained the crux of this element:
“The general principle to be kept in view in determining
whether what was once a chattel has become a fixture is the
distinction between the business which is carried on in or upon
the premises, and the premises. The former is personal in its
nature, and articles that are merely accessory to the business,
and have been put on the premises for this purpose, and not
as accessions to the real estate, retain the personal character
of the principal to which they belong and are subservient. But
articles which have been annexed to the premises as
accessory to it, whatever business may be carried on upon it,
and not peculiarly for the benefit of a present business which
may be of temporary duration, become subservient to the
realty and acquire and retain its legal character.” Id., at
paragraph seven of the syllabus.
Thus, if an article is particular to the business conducted on
the realty rather than general to the realty itself, it retains its
character as personal property. This is often referred to as a
‘trade fixture,’ which is removable by the affixing party when
the business is moved. Rescina v. Kaperak (Nov. 25, 1992),
Cuyahoga App. No. 61465, unreported, 1992 Ohio App.
LEXIS 5941, at *10-11; Call v. Banc Ohio Natl. Bank (Aug.18,
1992), Crawford App. No. 3-92-3, unreported, 1992 Ohio App.
LEXIS 4175, at *6-7. If the opposite holds true, the character
of the article takes on the character of realty. Zangerle.”
G & L Invests, 1998 WL 553213, at *3-4.
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{¶31} Here, the property at issue is artwork. Although the addition to the museum
was built with the specific purpose of housing the mural, including the frame and trench
lighting specific to its dimensions, it does not follow that the mural itself is an accession
to the real estate. This is not a mural painted onto the bricks and mortar of a building, but
a collection of terra-cotta tiles that has been displayed elsewhere and that Butler acquired,
restored, and relocated to the Trumbull County branch. The work can be moved and
displayed at other locations, although with significant time and cost due to the grand scale
of the piece. Because artwork is particular to Butler’s business of operating an art gallery
and this work was displayed at the Trumbull County branch for this purpose, this factor
does not support the theory that it is a fixture.
{¶32} The third and final Teaff factor is intent to create a fixture. This is often
deemed the most important factor. See Masheter, 37 Ohio St.2d at 73-74. The intent to
affix the personal property to the realty alone is not the focus but whether there was an
intent to devote the property to the use or service of the real estate. Id. at 74-75.
“[I]t is not necessarily the real intention of the owner of the
chattel which governs. His apparent or legal intention to make
it a fixture is sufficient. This intention ought to be apparent,
from the situation and surroundings to those who may deal
with or become interested in the real estate to which the
chattel is attached. His intention not to make it a part of the
realty must not be secret, but may be inferred from the nature
of the article affixed, the relation and situation of the party
making the annexation, the structure and mode of annexation,
the purpose and use for which the annexation is made, the
utility in use or the indispensability of the combination when
the chattel is once attached to the realty in the use of the
whole, and the relationship of the owner of the chattel to the
owner of the realty and to others who may become interested
in or owners of the property. The fact that a chattel attached
to realty is or is not a fixture must appear from an inspection
of the property itself, in the absence of actual notice to the
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contrary, or of such circumstances as would put a prudent
person upon inquiry to ascertain the fact.”
Household Fin. Corp. v. BancOhio, 62 Ohio App.3d 691, 694-95, 577 N.E.2d 405 (2d
Dist.1989), quoting Holland Furnace Co., 135 Ohio St. at 52-54.
{¶33} Here, it is undisputed that the terra-cotta mural was gifted by its previous
owner to Butler, and Butler subsequently displayed it at the Trumbull County branch. After
acquiring the mural, Butler initiated fundraising for the construction of the addition to the
branch to display the artwork, including the custom-built rotating frame.
{¶34} Louis Zona, director of Butler, testified at the hearing that he had raised
approximately $350,000 to build the addition to house the mural. Zona maintained that
the frame holding the mural was constructed in such a way that the mural could be
removed if the museum was requested to send it as a travelling exhibit. The back of the
frame has been used for, and could continue to be used for, displaying other artwork.
Moreover, once the mural is removed, Butler could repair any damage to the plywood on
the front of the frame, which could also house other artwork.
{¶35} Butler hired and paid Gilmore Design, owned by Bart Joe Gilmore, and he
testified that he designed and constructed the addition to house the mural at the Trumbull
County branch. He also hung the mural and explained that it was hung with the intention
that the piece could be disassembled and removed in approximately ten days with limited
damage to some plywood on the display frame, which is repairable.
{¶36} John Anderson, an active member of Medici and prior member of Butler,
testified that the museum addition and the metal frame housing the mural would not have
been built had Butler not acquired the mural for display at the Trumbull County branch.
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Anderson maintained that the addition was specifically designed to house the mural and
that Butler had declared the mural would be permanently placed in the building.
{¶37} After the hearing, in support of its summary judgment motion, Medici
attached affidavits of John A. Anderson, John A. Anderson, II, and Ned Gold. Butler
moved to strike the affidavits for several reasons, including that the pretrial procedure
used here anticipated that all evidence used in support of summary judgment would be
submitted at the hearing. The trial court noted in its entry that, although the purpose of
the hearing was to receive all summary judgment evidence, the affidavits were properly
considered under Civ.R. 56. The court then proceeded to review “ALL” the evidence
before it.
{¶38} In the Anderson affidavits, Anderson and Anderson II averred that they were
the administrator of the Taylor Winfield Foundation and a trustee of Medici, respectively,
between 2009-2010. At that time, the Andersons maintained that they were approached
by Zona, who was seeking assistance in construction costs for an addition to house the
mural. The Andersons maintained that the Taylor Winfield Foundation and Medici did
assist with the costs “with the understanding that the Mural would be located to and
remain at that Howland Township location into perpetuity as the addition was to have
been constructed for no other purpose whatsoever.”
{¶39} In Gold’s affidavit, he averred that, in 2009, he was the president of Trumbull
100. At that time, he was approached by Chuck Bentz, the fundraising representative for
Butler, who sought assistance in underwriting an addition to the Butler to house the mural.
Around that time, Gold received an email from Zona stating that the mural would “become
a landmark for the community.” After members of Trumbull 100 expressed concern that
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the mural would not remain in Trumbull County, Bentz “in no uncertain terms, responded
that the Soulages was not going anywhere and would remain in Trumbull County, or
words of similar import[.]” Gold averred that, after he shared Bentz’ response with
Trumbull 100, it contributed $29,000 to assist with the construction cost, with “the
understanding that the Mural would be located to and remain at that Howland Township
location, for enhancement of the quality of life for Trumbull County citizens, into the
indefinite future[.]”
{¶40} On appeal, Medici relies in part on the representations made by Zona and
Bentz, as relayed in the affidavits, to support its argument that Butler specifically
expressed an intent to create a fixture. However, the statements were indisputably made
in the context of Butler raising funds for an addition to display its artwork in a building
where it intended a long-term presence pursuant to a 99-year lease, prior to Medici’s
exercise of its right to terminate the lease.
{¶41} Regardless, Medici argues that the building of the addition and the
statements made by Butler agents reasonably imply an intent of Butler to make a
permanent accession to the freehold. Thus, Medici essentially argues that Butler’s intent
was to divest itself of ownership upon installation of a valuable mural by a renowned artist
that it had specifically sought and to transfer ownership of the mural to the freehold,
owned by Medici. Under such a theory, Butler’s intent was to relinquish ownership of the
mural to Medici, without any assurances of Medici as to whether it would continue to
display the mural, thereby allowing Medici to retain, remove, sell, or otherwise dispose of
the mural. The evidence does not reasonably imply such an extraordinary intention.
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{¶42} Based on the foregoing, no genuine issue as to any material fact exists, as
reasonable minds can reach only one conclusion, i.e., that the mural is not a fixture, and
as such, summary judgment on this claim was appropriate. Thus, Medici’s second
argument lacks merit.
{¶43} Medici’s third and fourth arguments contend that the undisputed facts show
the establishment of a charitable trust and, alternatively, that genuine issues of material
fact remain preventing summary judgment and requiring a trial on the issue of whether a
charitable trust was created. For the reasons stated, we disagree with both contentions.
{¶44} In Medici’s amended complaint, it alleged that it and several other art
patrons donated to underwrite the cost of the addition to the building to permanently
display the mural at that location. Medici sought judgment “determining and declaring
that the Mural has become the res of a charitable trust, legally owned by the Defendant
for the benefit of the public, to be displayed and appreciated by the public into perpetuity
at the branch museum’s addition into which it has been integrated.”
{¶45} “[T]o prove the existence of a charitable trust, a party must establish
three elements: 1) a fiduciary relationship with respect to property arising under the law
of this state or of another jurisdiction; 2) as the result of a manifestation of intention to
create the trust; 3) which subjects an individual by whom the property is held to fiduciary
duties to deal with this property within this state for any charitable, religious, or educational
purpose.” State ex rel. Atty. Gen. v. Vela, 2013-Ohio-1049, 987 N.E.2d 722, ¶ 25 (5th
Dist.); R.C. 109.23(A).
{¶46} In the summary judgment materials, Medici maintained that the donors,
specifically the non-party Trumbull 100, required assurances that the mural remain in
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Trumbull County prior to donating to the addition. Medici maintains that Bentz’ statement
that the mural was not going anywhere demonstrated that “Butler, as Trustee, would
retain legal title to the Mural, but maintain it in Howland, for the benefit of the Trumbull
County art appreciation community, into the indefinite future.”
{¶47} Medici refers to the donors to the addition as the settlors of the trust.
However, the donors’ contributions were not used in obtaining the mural. It is undisputed
that the prior owner of the terra-cotta mural gifted it to Butler, who then chose to display
it in Trumbull County. Donor funds were sought to assist with the cost of constructing the
addition but were not used to secure the artwork itself. And Butler is not seeking to
remove the addition, which will continue to be available to house and display art after it
removes the mural.
{¶48} Medici also relies on the statements of Butler’s agents as expressing an
intent to hold the mural in trust. However, these statements must again be placed in the
undisputed context in which they were made. As set forth in our discussion of intent with
regard to fixtures, the statements were made when fundraising for an addition to the
Medici building, at a point in time when Butler intended a long-term presence at the
building. The statements were not made as an irrevocable duty to forever display art in
a building that it did not own, and in which it held no right to control permanent display of
any artwork. Given the unrefuted evidence presented in the summary judgment
proceedings, an inference that Butler intended to impose upon itself such a duty is
patently unreasonable.
{¶49} Accordingly, Medici’s third and fourth arguments under its sole assigned
error lack merit.
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{¶50} The trial court’s decision is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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