Ohio Patrolmen's Benevolent Assn. v. Olmsted Falls ( 2022 )


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  • [Cite as Ohio Patrolmen's Benevolent Assn. v. Olmsted Falls, 
    2022-Ohio-2958
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    OHIO PATROLMEN’S BENEVOLENT :
    ASSOCIATION,
    Plaintiff-Appellant,                  :                    No. 111147
    v.                                    :
    CITY OF OLMSTED FALLS,                                :
    Defendant-Appellee.                   :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: August 25, 2022
    Civil Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CV-21-950761
    Appearances:
    Brian A. Holb and Daniel J. Leffler, for appellant.
    Andrew D. Bemer, for appellee.
    ANITA LASTER MAYS, P.J.:
    Plaintiff-appellant         Ohio        Patrolmen’s      Benevolent   Association
    (“Union”) appeals the judgment of the trial court that denied its motion to vacate a
    labor conciliation award and granted defendant-appellee city of North Olmsted’s
    (“city”) application for an order confirming the award. We affirm the judgment of
    the trial court.
    I.     Procedural History and Facts
    In 1984, R.C. Chapter 4117 known as the Ohio Public Employees
    Collective Bargaining Act (“Act”) was enacted and the State Employment Relations
    Board (“SERB” interchangeably referred to as the “Board”) was created. The Act
    provides a process for collective bargaining agreement (“CBA”) negotiations and
    impasse resolution.        R.C. 4117.14 contains the procedure for modifying or
    terminating CBAs and negotiating successor agreements.
    Where the parties are unable to reach an agreement,
    the matter proceeds to a fact-finding procedure pursuant to
    R.C. 4117.14, which involves a third-party neutral person, a “fact-
    finder,” who conducts an evidentiary hearing and issues a report with
    recommended terms. Fact-finding culminates in a final, written CBA
    that the parties execute and implement. If the impasse persists after
    fact-finding, under statute, certain bargaining units and their
    employers are required to proceed to binding interest arbitration, or
    “conciliation.” If fact-finding fails to culminate in a final written CBA,
    the parties can resume their negotiations and the union may resort to
    a strike to bring economic force to obtain its bargaining objectives.
    Cleveland v. Communication Workers of Am., Local 4340, 8th Dist. Cuyahoga
    No. 111050, 
    2022-Ohio-2498
    , ¶ 3.
    In 2020, the city and the Union began CBA negotiations for the 2021
    to 2023 term. Unable to agree, the parties participated in a fact-finding hearing
    under R.C. Chapter 4117. The fact-finding recommendation was rejected by the full
    and part-time patrol officers, and on March 24, 2021, SERB ordered the parties to
    conciliation under Ohio Adm.Code 4117-9-06(A) and appointed a conciliator on
    March 30, 2021, under R.C. 4117.14(D)(1).
    The March 30, 2021 letter of appointment directed that “five calendar
    days in advance of the hearing, each party must send its prehearing statement to the
    conciliator and to the other party in compliance with Ohio Adm.Code 4117-9-
    06(E).”1 The letter did not specify that a copy of the statement should also go to the
    Board but did provide that the Board would “submit for inclusion in the record and
    for consideration by the conciliator the written report and recommendations of the
    fact-finder. R.C. 4117.14(G)(6).” The letter also advised the recipients to “[s]ee [the]
    Conciliation Guidebook for more information about the Dispute Settlement
    Procedure.”
    The hearing was set for June 7, 2021. The Union hand-delivered a
    hard copy of its prehearing statement to the conciliator, and on June 2, 2021,
    electronically submitted a copy to the conciliator, the city, and the Board. City also
    timely submitted a hard copy of its prehearing statement to the Union and the
    conciliator but, the Union complains, the city did not submit a copy to the Board.
    1    Ohio Adm.Code 4117-906(E) provides in part: “(E) Upon notice of the
    conciliator’s appointment, each party shall submit via electronic mail to the conciliator
    and the other party a position statement.” 
    Id.
     “A failure to submit such a position
    statement to the conciliator, to the other party, and to the board five calendar days prior
    to the day of the hearing shall require the conciliator to take evidence only in support of
    matters raised in the position statement that was submitted prior to the hearing.” 
    Id.
    R.C. 4117.14(G)(3) is the corresponding statute to the rule and provides “Not later than
    five calendar days before the hearing, each of the parties shall submit to the conciliator,
    to the opposing party, and to the board, a written report summarizing the unresolved
    issues, the party’s final offer as to the issues, and the rationale for that position.”
    The Union states it met with the city and the conciliator prior to the
    commencement of the June 7, 2021 hearing to discuss the city’s failure to file a copy
    of its prehearing statement with the Board. The conciliator elected to move forward.
    The Union repeated its objection before the conciliation began.            There is no
    transcript or documentation of the objection.
    The conciliator concluded:
    While the Conciliator worked hard in mediation to obtain a different
    outcome than either party’s final offer, the final offer arbitration
    procedure adopted by Ohio requires the Conciliator to pick either the
    employer’s or union’s offer without modification.               Given this
    constraint, the Conciliator selects the city’s final offer for the full-time
    police officers.
    The Union moved the Cuyahoga County Common Pleas Court to
    vacate the award under R.C. 2711.10(C) and (D). The Union argued that the city’s
    failure to serve SERB pursuant to R.C. 4117.14(G)(3) and Ohio Adm.Code 4117-9-
    06(E) was a fatal flaw that should have barred the city from presenting its case
    during conciliation pursuant to In re Greenville Patrol Officers Assn., 2000-SERB-
    005 (June 13, 2005) (“Greenville SERB”) and Greenville v. Greenville Patrol
    Officers Assn., Darke C.P. No. CV-99-57669, (“Greenville Case”) (collectively,
    “Greenville”).
    The Union argued that Greenville served as precedent to vacate the
    award and remand for a new hearing on the ground that the conciliator exceeded his
    authority by accepting the city’s untimely prehearing statement. The Union urged
    that, upon remand and as a result of the late submission, the city should be barred
    from presenting its prehearing statement as determined in Greenville. The city
    countered that the Union failed to object formally until it received an unfavorable
    conciliation decision and that the Union suffered no prejudice by the late filing with
    SERB. The city moved to affirm the award under R.C. 2711.09.
    The trial court denied the Union’s motion to vacate and affirmed the
    award. In a well-reasoned opinion, the trial court determined that the Union was
    estopped by its failure to formally object at the conciliation.
    “The failure on the part of a party to object to the scope of arbitration
    constitutes a waiver of the right to contest that issue on appeal.” City
    of Fostoria v. Ohio Patrolman’s Benevolent Assn., 
    106 Ohio St.3d 194
    ,
    
    2005-Ohio-4558
    , 
    833 N.E.2d 720
    , at ¶ 28. The application of estoppel
    “prevents a party from taking two bites of the same apple, i.e.,
    submitting the case for arbitration and raising the arbitrator’s lack of
    authority to hear the issues only in the event that an adverse award is
    rendered.” Creature v. Baird, 
    154 Ohio App.3d 316
    , 
    2003-Ohio-5009
    ,
    
    797 N.E.2d 127
    , ¶ 12 (7th Dist.), citing E. S. Gallon Co., L.P.A. v.
    Deutsch, 
    142 Ohio App.3d 137
    , 
    754 N.E.2d 291
     (2d Dist. 2001), quoting
    City of Vermilion v. Willard Constr. Co., 9th Dist. Lorain
    No. 94CA006008, 
    1995 Ohio App. LEXIS 3030
     (July 19, 1995).
    ***
    To address the initial determination of estoppel, the court notes that
    there is no transcript of the conciliation hearing evidencing an officially
    memorialized R.C. 4117.14(G)(3)/Ohio [Adm.]Code 4117-9-06(E)
    objection by plaintiff and that there is no mention of plaintiff’s
    R.C. 4117.14(G)(3)/Ohio [Adm.]Code 4117-9-06(E) objection in the
    conciliator’s award for purposes of an officially memorialized objection
    for the record. In the absence of a recorded objection, the court finds
    that plaintiff did not officially preserve its R.C. 4117.14(G)(3)/Ohio
    [Adm.]Code 4117-9-06(E) objection to the scope of the [sic] being
    estopped from now raising that issue before this court. As a result, the
    court finds that there is no basis under R.C. 2711.10 to vacate the
    conciliation award.
    Journal entry No. 119614474, p. 1-2 (Nov. 22, 2021).
    The trial court explained why, based on the purpose and policy of
    R.C. 4117.14(G)(3) and Ohio Adm.Code 4117-09-06(E), no grounds existed to vacate
    the award.
    Even if the plaintiff’s informal inquiries and the parties’ unrecorded
    discussion of R.C. 4117.14(G)(3)/Ohio [Adm.]Code 4117-9-06(E)
    somehow constitute an officially preserved objection, the court
    nevertheless finds that there is still no basis to vacate the conciliation
    award because the conciliator’s conduct and award were not acts of
    misbehavior or acts exceeding the conciliator’s powers under
    R.C. 2711.10.
    ***
    At the conciliation, the parties/counsel are present and the conciliator
    is present. The court significantly notes that SERB is not present at the
    conciliation, but solely serves as an administrative depository for the
    pre-hearing statement. [H]aving considered the 5-day requirement
    under R.C. 4117.14(G)(3), having reviewed the penalty under Ohio
    [Adm.]Code 4117-9-06(E), and in considering the logistics of the
    conciliation, the court finds that the essential and practical purpose of
    the 5-day rule is to provide timely, advanced notice to those actually
    preparing for and participating at the conciliation of the arguments that
    will be presented in allowing for a fair conciliation on the merits that is
    devoid of any unfair disadvantage to anyone preparing for the
    conciliation and devoid of any unfair surprise to anyone participating
    at the conciliation.
    Here, defendant timely provided its pre-hearing statement to the
    conciliator and to opposing counsel as those preparing for and
    participating at the conciliation hearing. While it is clear that the
    defendant failed to provide its pre-hearing statement to SERB, the
    court does not find that the defendant’s inadvertent oversight in failing
    to administratively file the pre-hearing statement with SERB negates
    the reality that the defendant complied with the fundamental purpose
    and spirit of R.C. 4117.14(G)(3)/Ohio [Adm.]Code 4117-9-06(E) in
    providing its pre-hearing statement to those of paramount importance
    for preparing for and participating at a meritorious conciliation.
    Id. at p. 2.
    The trial court also rejected the Union’s argument that Greenville
    applied.
    In the Greenville case, the union failed to submit its pre-hearing
    statement to anyone until just one day before the conciliation. Under
    this circumstance, the court finds that the focus in terms of compliance
    with R.C. 4117.14(G)(3)/Ohio [Adm.]Code 4117-9-06(E) is squarely on
    the unfair disadvantage/surprise to the conciliation participants due to
    the lack of timeliness of the submission; such untimeliness would have
    most critically disadvantaged the conciliator and opposing counsel in
    preparing for and participating at the conciliation.
    Here, the court finds that there was no such unfair disadvantage in
    preparing for the conciliation/surprise of the arguments on the merits
    at the conciliation to the plaintiff’s counsel or to the conciliator as the
    critical participants at the conciliation because they were timely
    provided with defendant’s pre-hearing statement 5 days in advance of
    the conciliation. In this way, the court finds that there is a substantial
    difference between the circumstance of a party timely providing its pre-
    hearing statement 5 days in advance to those actually preparing
    for/participating at the conciliation, but inadvertently overlooking the
    administrative filing of the pre-hearing statement with SERB as a non-
    participant at the conciliation and the circumstance of a party either
    submitting its pre-hearing statement very untimely as it relates to those
    actually preparing for/participating at the conciliation or not
    submitting its pre-hearing statement at all to opposing counsel as a
    party preparing for/participating at the conciliation.
    Id. at p. 2-3.
    The Union appeals and poses two errors for review:
    I.         The trial court erred when it held plaintiff’s objections to the
    conciliation continuing were not sufficient as they were not made
    on a transcript to memorialize them and there was no mention
    of objections in the conciliator’s report.
    II.        The trial court erred when it held that while defendant did not
    file its prehearing statement to SERB, defendant still complied
    with the purpose of R.C. 4117.14(G)(3) and Ohio Adm.Code 4117-
    9-O6(E).
    II.   Law and Discussion
    A. Standard of review
    Awards and orders of the conciliator that are made pursuant to
    R.C. Chapter 4117 “are subject to review by the court of common pleas having
    jurisdiction over the public employer as provided in R.C. Chapter 2711” governing
    arbitration. R.C. 4117.14(H). “Arbitration is a favored method of resolving disputes,
    Williams v. Aetna Fin. Co., 
    83 Ohio St.3d 464
    , 
    700 N.E.2d 859
     (1998), so the scope
    of judicial review of the arbitration proceedings is limited by statute and construing
    case law.” Assn. of Cleveland Fire Fighters, Local 93 of the Internatl. Assn. of Fire
    Fighters v. Cleveland, 8th Dist. Cuyahoga No. 94361, 
    2010-Ohio-5597
    , ¶ 2, citing
    Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork,
    Linoleum & Plastic Workers of Am., 
    42 Ohio St.2d 516
    , 520, 
    330 N.E.2d 703
     (1975).
    “[A]n arbitrator’s award is presumed to be valid.” N. Olmsted v.
    Internatl. Assn., Local 1267, 8th Dist. Cuyahoga Nos. 91300, 91301, and 91724,
    
    2009-Ohio-960
    , ¶ 11, citing Findlay City School Dist. Bd. of Edn. v. Findlay Edn.
    Assn., 
    49 Ohio St.3d 129
    , 
    551 N.E.2d 186
     (1990). A court’s sole jurisdiction once an
    arbitration has been completed is solely to “‘confirm and enter judgment
    (R.C. 2711.09 and 2711.12), vacate ( R.C. 2711.10 and 2711.13), modify (R.C. 2711.11
    and 2711.13), correct (R.C. 2711.11 and 2711.13), or enforce the judgment
    (R.C. 2711.14).’” Norman v. Kellie Auto Sales, Inc., 
    2020-Ohio-4311
    , 
    158 N.E.3d 166
    , ¶ 32 (10th Dist.), quoting State ex rel. R.W. Sidley, Inc. v. Crawford, 
    100 Ohio St.3d 113
    , 
    2003-Ohio-5101
    , 
    796 N.E.2d 929
    , ¶ 22.
    “‘A trial court may not evaluate the actual merits of an award and
    must limit its review to determining whether the appealing party has established
    that the award is defective within the confines of R.C. Chapter 2711.’” Id. at ¶ 32,
    quoting Champion Chrysler v. Dimension Serv. Corp., 
    2018-Ohio-5248
    , 
    118 N.E.3d 490
    , ¶ 10 (10th Dist.), quoting Telle v. Estate of William Soroka, 10th Dist. Franklin
    No. 08AP-272, 
    2008-Ohio-4902
    , ¶ 9.
    When an appellate court reviews “a decision of a common pleas court
    confirming, modifying, vacating, or correcting an arbitration award, an appellate
    court should accept findings of fact that are not clearly erroneous but decide
    questions of law de novo.” Portage Cty. Bd. of Dev. Disabilities v. Portage Cty.
    Educators’ Assn. for Dev. Disabilities, 
    153 Ohio St.3d 219
    , 
    2018-Ohio-1590
    , 
    103 N.E.3d 804
    , ¶ 25.
    “Our de novo review on appeal, however, is not a de novo review of
    the merits of the dispute as presented to the arbitrator.” Zeck v. Smith Custom
    Homes & Design, LLC, 8th Dist. Cuyahoga No. 110574, 
    2022-Ohio-622
    , ¶ 12, citing
    Adams Cty./Ohio Valley Local School v. OAPSE/AFSCME, Local 572, 2017-Ohio-
    6929, 
    94 N.E.3d 937
    , ¶ 18 (4th Dist.), citing Jackson Cty., Ohio Sheriff v. FOP Ohio
    Labor Council, Inc., 4th Dist. Jackson No. 02CA15, 
    2004-Ohio-3535
    , ¶ 19-20.
    “Rather, we review a trial court’s decision whether to vacate an arbitration award ‘de
    novo to see whether any of the statutory grounds for vacating an award exist.’” 
    Id.,
    quoting 
    id.
    B. Analysis
    We combine the assigned errors for analysis. The Union argues that
    it could not present a formal challenge to the conciliator’s decision to proceed until
    the trial-court level via the motion to vacate. The Union cites Ohio Adm.Code 4117-
    9-06(F) in support of its position. The rule provides that “[t]he conciliator shall
    make provisions allowing for a written record of the hearing. The conciliator’s notes
    shall constitute the record for the conciliation hearing, unless the parties agree
    otherwise.” A review of the 2019 SERB Conciliation Guidebook also provides that
    “[t]he Conciliator is responsible for the record of the hearing. The taking of notes
    on the part of the Conciliator is considered sufficient. The costs of a stenographer
    are the responsibility of the requesting party or parties.” 2019 SERB Conciliation
    Guidebook at p. 9 (Jan. 2019).
    Thus, the Union argues that it could not obtain a record of the
    informal objection made prior to the proceedings but that the city conceded at the
    hearing on the motion to vacate that an informal objection was raised.
    Notwithstanding this fact, the Union does not explain why there was no formal
    objection placed during the hearing or a request made that the conciliator document
    the decision to move forward over the Union’s objection.
    In addition, while R.C. 4117.14(G)(2) imposes a preference for a
    prompt conciliation hearing, Ohio Adm.Code 4117-9-02(F) provides that a party
    may move to stay the hearing for good cause shown. Bd. of Trustees of Butler
    Twp. v. Butler Twp. Professional Fire Fighters, 
    183 Ohio App.3d 575
    , 2009-Ohio-
    4319, 
    917 N.E.2d 883
    , ¶ 34 (2d Dist.). There is no evidence that Union requested a
    stay of the proceedings considering the alleged gravity of the matter.
    This court does not agree with the Union that the trial court’s reliance
    on Fostoria v. Ohio Patrolmen’s Benevolent Assn., 
    106 Ohio St.3d 194
    , 2005-Ohio-
    4558, 
    833 N.E.2d 720
    , is misplaced. The failure to object or argue at the conciliation
    hearing that the conciliator lacked authority to proceed “‘constitutes a waiver of the
    right to contest that issue on appeal.’” Perkins Twp. v. IAFF Local 1953, 6th Dist.
    Erie No. E-18-041, 
    2019-Ohio-3706
    , ¶ 37, quoting Fostoria at ¶ 28. “Moreover, a
    party may not procure a reversal of a judgment ‘for an error for which he was actively
    responsible.’” 
    Id.,
     quoting id. at ¶ 14.
    We also find that the trial court’s rationale and its rejection of the
    Union’s proposed precedent of Greenville is supported by law.2 As the trial court
    noted below, in Greenville the city timely served its prehearing statement on the
    city, conciliator, and the Board, but the union served its statement on the city and
    the conciliator just two days before the hearing that was received the day prior to the
    hearing. The union also failed to provide a copy to the Board. As the trial court in
    the instant case explained, the late submission to the opposing party and conciliator
    in Greenville placed those parties at a disadvantage in preparing for and
    participating in the conciliation hearing.
    2A copy of the unreported trial court decision has not been provided but the SERB
    opinion provides background.
    The conciliator overruled the city’s objections to the late filing of the
    union’s statement and entered an award. The Greenville Court vacated the award
    on the ground that the conciliator exceeded his authority, remanded the matter for
    a new conciliation hearing and barred the union from presenting its position.
    Greenville SERB determined that the union’s actions constituted an unfair labor
    practice under R.C. 4117.11(B)(3) when it filed the prehearing conciliation statement
    one day before the hearing in contravention of R.C. 4117.14(G)(3).
    The Ohio Supreme Court “normally accords great deference to a
    decision SERB has made on a particular issue.” State ex rel. Ohio Assn. of Pub.
    School Emps./AFSCME v. State Emp. Relations Bd., 
    64 Ohio St.3d 149
    , 152, 
    593 N.E.2d 288
     (1992). “‘It was clearly the intention of the General Assembly to vest
    SERB with broad authority to administer and enforce R.C. Chapter 4117. * * * This
    authority must necessarily include the power to interpret the Act to achieve its
    purposes.’” 
    Id.,
     quoting Lorain City Bd. of Edn. v. State Emp. Relations Bd., 
    40 Ohio St.3d 257
    , 260, 
    533 N.E.2d 264
    , 267 (1988).
    In Warren, Ohio v. Ohio Patrolmen’s Benevolent Assn., SERB Case
    No. 2019-MED-10-1099 (Sept. 28, 2020), counsel for the union requested a side bar
    meeting with the conciliator and counsel for the city immediately prior to the
    hearing. The union contended that the city’s submission was deficient under
    R.C. 4117.14(G)(3) due to its failure to submit a copy of its prehearing statement to
    the Board. The parties were unable to negotiate a waiver of the defect or to reach
    SERB counsel for guidance. The hearing was rescheduled. SERB counsel advised
    the conciliator that no action regarding the union’s objection would be taken prior
    to the rescheduled hearing.
    The conciliator issued a comprehensive award after the rescheduled
    hearing and, of import here, addressed the pending objection. The conciliator stated
    that the union’s request to exclude the city’s evidence due to the failure to serve
    SERB “was fundamental to the conciliation hearing process and requires an
    extensive explanation of the rationale of the Conciliator.” As did the Union in this
    case, the union argued that Greenville served as precedent for its position.
    The conciliator stated that the failure in Greenville was “a difference
    with a significant distinction.” Id. at p. 12. The “failure was the untimely submission
    of the [union’s] position statement” “to the city and conciliator on the day before the
    hearing versus the required five days before the hearing pursuant to R.C.
    4117.14(G)(3).” Id. “The common pleas court and SERB Board view such untimely
    submission as a fatal defect to the conciliation process.” Id.
    “The only error by the city of Warren was its failure to submit its
    position statement to SERB” but the union and conciliator received the statements
    pursuant to statute. Id. at p. 12. The conciliator also observed that while the union’s
    failure to serve SERB was “noted in the findings of fact,” the focus in the “findings
    of law” was on the untimely submission and resulting prejudice to the parties and
    the process. Id. “The impact * * * on SERB was not discussed.” Id.
    The conciliator concluded that the “error of omission to send the
    prehearing statement to SERB did not prejudice or damage any party.” Id. at p. 13.
    “This event, however, did not prejudice SERB or the resolution process of [R.C.]
    Chapter 4117.” Id. The conciliator also noted that he asked SERB counsel what
    SERB did with the prehearing statement copies. “The response [was] ‘nothing, they
    are electronically filed away without any review or action taken.’” Emphasis sic.
    Id.
    In addition, the conciliator explained:
    “Everyone is entitled to due process.” That means the process of the
    “Conciliation hearing” is paramount.          The employee’s (OPBA)
    arguments for collective bargaining issues as well as the taxpayers and
    citizens of the community’s positions, through their elected officials,
    should be able to be presented. In some cases those positions are
    identical and sometimes polar opposites. Only by the facts presented
    can the Conciliator render a selection of last final which will withstand
    the test of constituent’s review and voluntary acceptance. For this
    Conciliator to accept less would compromise “due process” owed to all.
    Id.
    Finally, the conciliator listed his findings on the issue:
    Ergo, after all that due diligence of determining potential prejudice to
    the process by the City’s omission, this Conciliator finds insufficient
    basis to tip the scales and not allow the City to present its case.
    To do otherwise would give credence to a technical error which would
    totally negate the due process contemplated and required under
    [R.C. Chapter] 4117. A truly inequitable outcome should the [union’s]
    motion to exclude evidence be granted.
    For all of the aforementioned rational, the Conciliator denied the
    [union’s] motion and decided to proceed with the conciliation hearing.
    [Union’s] objection to this finding on its motion is duly noted in this
    record of the hearing.
    Exclusion of the City’s evidence in support of its final offer would be a
    deprivation of a right without adequate justification for such action The
    City’s failure to submit its pre-hearing statement to SERB, and the fact
    that such omission did not prejudice the union, SERB, the Conciliator
    or the hearing, is not a sufficient event to deny due process to the City
    of Warren, Ohio.
    Id. at p. 14.
    Based on the foregoing, this court finds that the trial court’s analysis
    in this case was directly on point.
    The Union’s assigned errors lack merit. The trial court’s judgment is
    affirmed.
    It is ordered that appellee recover from appellant 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.
    ANITA LASTER MAYS, PRESIDING JUDGE
    FRANK DANIEL CELEBREZZE, III, J., and
    MARY J. BOYLE, J., CONCUR