Lloyd v. Thornsbery , 2021 Ohio 239 ( 2021 )

[Cite as Lloyd v. Thornsbery, 2021-Ohio-239.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
SUSAN LLOYD, : OPINION
Plaintiff-Appellant, :
CASE NO. 2019-P-0080
- vs - :
JOSHUA THORNSBERY, et al., :
Defendants-Appellees. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV
00230.
Judgment: Affirmed.
Susan Lloyd, pro se, P.O. Box 2577, Streetsboro, OH 44241 (Plaintiff-Appellant).
Mark J. Hanna, P.O. Box 301, Kent, OH 44240 (For Defendants-Appellees, C and N
Forestry, Cindy Simcox, and Connor Zanoskar).
Jason A. Whitacre, Flynn, Keith & Flynn, 214 South Water Street, Kent, OH 44240 (For
Defendants-Appellees, Apryle Davis, Darrel Huber, Eric Siwierka, Jamie Newman,
Jason Ortman, Joshua Thornsbery, Nick Balas, Phillip Siwierka, Shelly Ortman, Staci
Dalton Liddle, Theresa Giaimo, and Tim Welms).
Lindsay N. Molnar, Perduk & Associates Co., LPA, 3603 Darrow Road, Stow, OH 44224
(For Defendants-Appellees, Michael Szabo and Sandi Szabo).
Craig G. Pelini, Pelini, Campbell & Williams, LLC, 8040 Cleveland Avenue, NW, Suite
400, North Canton, OH 44720 (For Defendants-Appellees, Justin Smialek and Pam
Wilms).
Daniel Bennett, pro se, 119 Ebersole Road, Fredericktown, OH 43019 (Defendant-
Appellee).
Harley Angel a.k.a. Robin White, pro se, 10254 Brosius Road, Garrettsville, OH 44231
(Defendant-Appellee).
Amanda Shuherk, pro se, 08577 County Road C, Bryan, OH 43506 (Defendant-
Appellee).
David Trussel, pro se, 6412 Linda Lane, Ravenna, OH 44266 (Defendant-Appellee).
Frank Chlad, pro se, 10122 William Henry Drive, Streetsboro, OH 44241 (Defendant-
Appellee).
Jaird Kendzior, pro se, 1094 Moneta Avenue, Aurora, OH 44202 (Defendant-Appellee).
Marty Kendzior, pro se, 6576 Munsell Road, Howell, MI 48843 (Defendant-Appellee).
Rebecca Schaffer, pro se, 6412 Linda Lane, Ravenna, OH 44266 (Defendant-Appellee).
Sebastian Dzialuk, pro se, 7085 Seven Hills Boulevard, Seven Hills, OH 44131
(Defendant-Appellee).
Sue Whitlam, pro se, 466 Brentwood Avenue, Kent, OH 44240 (Defendant-Appellee).
William Taylor, pro se, 2122 Gates Avenue, Streetsboro, OH 44241 (Defendant-
Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Susan Lloyd, pro se, appeals six Judgment Entries or Orders of
the Portage County Court of Common Pleas, which generally denied Ms. Lloyd’s post-
judgment motions and granted various defendant-appellees’ motions. For the reasons
discussed herein, the judgments are affirmed.
{¶2} In January 2016, Ms. Lloyd purchased a house on Dorothy Drive in
Streetsboro, Ohio. There was immediate conflict between her and her next-door
neighbor, Joshua Thornsbery, the primary appellee herein. The dispute began when Mr.
Thornsbery’s dogs relieved themselves on her property. It escalated when Mr.
Thornsbery removed trees Ms. Lloyd believes were located, at least partially, on her
property. The conflict was further aggravated by Mr. Thornsbery and his neighbors
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holding large bonfires and smoking, which aggravated Ms. Lloyd, who uses oxygen.
Eventually, Ms. Lloyd built a fence between the two properties, put up security cameras,
and posted “no smoking, oxygen in use” signs. Several times, Ms. Lloyd called the
authorities on Mr. Thornsbery, once resulting in a citation for the illegal burning of
untreated wood. Mr. Thornsbery, in return, posted his own security cameras, continued
to hold bonfires in his backyard, and he and his friends, the other defendant-appellees
herein, posted about Mr. Thornsbery’s “neighbor” pejoratively on Facebook.
{¶3} Ms. Lloyd filed a complaint against Mr. Thornsbery and his friends in March
2016. Several motions for a more definite statement were granted and, ultimately, Ms.
Lloyd’s fourth amended complaint alleged 101 claims for relief against 26 defendants.
Numerous parties were dismissed at various times throughout the underlying
proceedings. The jury found in favor of certain defendants on 11 claims for relief; the trial
court granted directed verdict for 11 additional claims for relief in favor of certain
defendants. The remaining claims for relief appear to have not been pursued at trial and
no objection was made to their exclusion during trial, nor on appeal. After trial, Ms. Lloyd’s
counsel, Attorney Hull, was permitted to withdraw his representation. Ms. Lloyd filed the
instant appeal, pro se, alleging thirteen assignments of error.
{¶4} Additionally, shortly after trial, several defendant-appellees filed motions for
sanctions against Ms. Lloyd and Attorney Hull. The motion for sanctions against Attorney
Hull was dropped but the motion for sanctions against Ms. Lloyd were ultimately granted.
Ms. Lloyd appealed this decision in appellate case no. 2019-P-0108, also now before this
court.
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{¶5} For ease of disposition and clarity, we address certain assignments of error
out of order. Preliminarily, we note that Ms. Lloyd argues for the applicability of the
Federal Rules of Civil Procedure (FRCP) throughout her appeal. However, as Ms. Lloyd
filed her complaint in state court, the Ohio Rules of Civil Procedure are applicable, not the
FRCP. Fed.R.Civ.P. 1 (“These rules govern the procedure in all civil actions and
proceedings in the United States district courts * * *.” (Emphasis added.) However, as
the Ohio Rules of Civil Procedure are often closely analogous to the FRCP, and in the
interest of justice, alleged violations of the FRCP will be construed as if alleged to be
violations of their Ohio counterparts.
{¶6} Except as noted, each of Ms. Lloyd’s assignments of error are reviewed for
an abuse of discretion. The term “abuse of discretion” is one of art, connoting judgment
exercised by a court which neither comports with reason, nor the record. State v.
Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when
the trial court “applies the wrong legal standard, misapplies the correct legal standard, or
relies on clearly erroneous findings of fact.” State v. Figueroa, 11th Dist. Ashtabula No.
2016-A-0034, 2018-Ohio-1453, ¶26, citing Thomas v. Cleveland, 176 Ohio App.3d 401,
2008-Ohio-1720, ¶15 (8th Dist.).
{¶7} Ms. Lloyd’s first assignment of error states:
{¶8} The trial court committed an abuse of discretion and reversible error
occurred by assigning Thomas Pokorny to case 2016CV00230
against Guidelines for Assignment of Judges for Supreme Court of
Ohio Rules 2.2B, 2.3, 2.3A, 2.3B, 2.3C, 5.1A, 5.3A, Rules of
Superintendence Rule[ ]36.019 and 28USC453 and section 5 of
article VI of the US Constitution. [sic]
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{¶9} Ms. Lloyd alleges error in the assignment of Judge Pokorny to hear her case
after Judge Doherty recused herself, citing noncompliance with the Supreme Court of
Ohio’s Guidelines for Assignments of Judges and the Rules of Superintendence.
{¶10} Preliminarily, the Supreme Court of Ohio’s Guidelines for Assignments of
Judges have not been adopted as rules pursuant to Article IV, Section 5 of the Ohio
Constitution and are “not binding on Ohio courts.” Forsyth v. Feinstein, 2d Dist. Clark No.
99-CA-66, 2000 WL 192298, *3 (Feb.18, 2000); J.P. v. M.H., 9th Dist. Lorain No. CV
18CA011450, 2020-Ohio-13, ¶12. “Although it may be the best practice to adhere to
these guidelines, a failure to do so is not reversible error.” Id. Likewise, this court has
held that the Rules of Superintendence, “‘are not the equivalent of rules of procedure and
have no force equivalent to a statute. They are purely internal housekeeping rules which
are of concern to the judges of the several courts but create no rights in individual
defendants.’” Habo v. Khattab, 11th Dist. Portage No. 2012-P-0117, 2013-Ohio-5809,
¶84, quoting State v. Gettys, 49 Ohio App.2d 241, 243, (3d Dist.1976).
{¶11} More importantly, Ms. Lloyd filed four affidavits of disqualification against
Judge Pokorny with the Supreme Court of Ohio. The Supreme Court denied each
affidavit, finding Judge Pokorny to be qualified, and ultimately warning Ms. Lloyd that
continued filings of affidavits for disqualification may result in sanctions against her.
Critically, this court lacks the jurisdiction to review the appointment of a visiting judge so
appointed by the Supreme Court of Ohio. See Nolan v. Nolan, 11 Ohio St.3d 1 (1984),
syllabus (“Absent extraordinary circumstances, such as an intervening decision by the
Supreme Court, an inferior court has no discretion to disregard the mandate of a
superior court in a prior appeal in the same case.”).
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{¶12} Further, Ms. Lloyd blanketly asserts that Judge Pokorny has not taken an
oath of office, violating 28 U.S.C. 453. This statute, however, applies to “judges of the
United States,” that is, federal judges. Even if we were to apply R.C. 3.23, which provides
the oath of office required for Ohio judges, except for justices of the supreme court,
nothing in the record demonstrates Judge Pokorny has not taken an oath of office.
{¶13} Finally, as to Ms. Lloyd’s argument that the certificate of assignment was
not promptly entered into the docket, we note that this court has previously held that “even
though it may be better practice for courts to put a copy of the certificate of assignment in
each file handled by the visiting judge, failure to do so does not constitute reversible error.”
State v. Corradetti, 11th Dist. Lake No. 2001-L-092, 2002-Ohio-6577, ¶12. Here, the
certificate of assignment was entered into the docket; the court’s failure to do so more
promptly, while not best practice, likewise does not result in reversible error.
{¶14} Ms. Lloyd’s first assignment of error is without merit.
{¶15} Ms. Lloyd’s second assignment of error states:
{¶16} The trial court committed reversible error and abuse of discretion by
allowing Hull to withdraw as Lloyd[’]s attorney in violation of local rule
20.04. [sic]
{¶17} Ms. Lloyd argues that her counsel failed to abide by Portage County Court
of Common Pleas Local Rule 20.04 and thus her counsel should not have been permitted
to withdraw.
{¶18} Loc.R. 20.04, as effective during these proceedings1, stated:
{¶19} Application for leave to withdraw as trial attorney in a civil case shall
be made by written motion filed with the Clerk, with copies served
upon all other trial attorneys in the case in accordance with these
1. The effective date of the Portage County Local Rules in effect at the time of these proceedings was
June 21, 1993; they have since been updated effective February 1, 2020, eliminating, inter alia, the
certified mailing requirement and opportunity for hearing.
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rules and Civil Rule 5. The motion may be heard within ten (10) days
of filing by the Judge. Written notice of such application shall be given
to the client of the trial attorney seeking to withdraw, by certified mail,
return receipt requested, stating the time when and before which
Judge such application will be made. If such application is granted
and the client does not appear at the hearing, the trial attorney, if
permitted to withdraw, shall notify the client by certified mail, return
receipt requested, to secure a new trial attorney within such time as
may be designated by the Court. A copy of such notice, together with
the order authorizing withdrawal and the certified mail shall be filed
in the case with a copy provided to the assignment commissioner.
{¶20} First, these Local Rules do not require a hearing; instead, “the motion may
be heard….” (Emphasis added.) Id. Second, violations of Local Rules do not generally
constitute grounds for reversal. See Cart v. Fed. Natl. Mtge. Assoc., 11th Dist. Ashtabula
No. 2011-A-0059, 2012-Ohio-2241, ¶49; Yoel v. Yoel, 11th Dist. Lake No. 2009-L-063,
2012-Ohio-643, ¶40; Allen v. Allen, 11th Dist. Trumbull No. 2009-T-0070, 2010-Ohio-475,
¶29-33. This conclusion is made all the more reasonable under these circumstances
because Ms. Lloyd admits that her attorney notified her of his intent to withdraw, albeit
via email. The purpose of Loc.R. 20.04, notice to the party, was clearly met as Ms. Lloyd
herself notes that she received the email.
{¶21} Furthermore, Attorney Hull represented Ms. Lloyd throughout most of these
proceedings and through the end of the trial. He was granted leave to withdraw on July
16, 2019, after the Court granted a directed verdict to Nick Balas, Phillip Siwierka, Timothy
Welms, Eric Siwierka, and Joshua Thornsbery, and after the jury returned a verdict in
favor of the remaining defendants, though before the court journalized the verdict. After
the court journalized the jury’s verdict, Ms. Lloyd filed several post-judgment motions and
her appeal pro se. She does not argue any way in which she was disadvantaged by his
withdrawal. In fact, we note that throughout the proceedings, Ms. Lloyd frequently filed
motions with the court pro se, despite being represented by counsel.
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{¶22} Finally, insofar as Ms. Lloyd argues her Constitutional right to counsel was
violated, we note that the Sixth Amendment to the United States Constitution and Section
10, Article I, of the Ohio Constitution, to which she alludes, refers to the right of a criminal
defendant to be represented. Sixth Amendment to the United States Constitution (“in all
criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of
counsel for his defense”) (emphasis added); Section 10, Article I, Ohio Constitution (“the
party accused shall be allowed to appear and defend in person and with counsel”)
(emphasis added). However, Ms. Lloyd brought a civil suit; in this case, she is a civil
plaintiff, not a criminal defendant. There is generally no right to have counsel appointed
in civil cases, with exceptions usually involving either involuntary psychiatric commitment
or parental custody, when the party is indigent. See Belknap v. Moss, 11th Dist. Portage
No. 2002-P-0128, 2005-Ohio-1255, ¶15; Goldfuss v. Davidson, 79 Ohio St.3d 116, 126
(1997) (Cook, J., concurring in judgment only) (“Unlike a criminal defendant, a civil litigant
has no constitutional right to the effective assistance of counsel.”). Ms. Lloyd hired
several attorneys during the course of her civil suit; she does not argue she is indigent
nor explain why after Attorney Hull’s withdrawal she could not hire new counsel. In this
case, Ms. Lloyd did not have a constitutional right to have counsel appointed to her.
{¶23} Accordingly, Ms. Lloyd’s second assignment of error is without merit.
{¶24} Ms. Lloyd’s thirteenth assignment of error states:
{¶25} Trial court committed reversible error and abuse of discretion by
refusing to disqualify Jason Whitacre, Scott Flynn and Flynn Keith
and Flynn (T.d.302, Paragraph 1) [sic]
{¶26} Under this assignment of error, Ms. Lloyd asserts that Attorney Jason
Whitacre, counsel for Mr. Thornsbery and several other defendants, had a conflict of
interest that disqualified him from representing his clients in this case. She does not
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allege that she was in an attorney-client relationship with Mr. Whitacre or his firm, Flynn
Keith & Flynn, but argues that an unsolicited message she sent to Attorney Flynn advised
them of the “past legal issues” of Attorney Hanna, counsel for other parties hereto, created
a conflict of interest.
{¶27} Under Prof.Cond.R. 1.7, a lawyer may be required to stop representing a
client if there is a substantial risk that the lawyer’s ability to “consider, recommend, or
carry out an appropriate court of action for that client will be materially limited by the
lawyer’s * * * own personal interests.” See also, Lytle v. Matthew, 8th Dist. Cuyahoga No.
104622, 2017-Ohio1447, ¶23. “Typically, courts do not disqualify an attorney on the
grounds of conflict of interest unless there is (or was) an attorney-client relationship
between the party seeking disqualification and the attorney the party seeks to disqualify.”
Morgan v. N. Coast Cable Co., 63 Ohio St.3d 156, 159 (1992).
{¶28} Ms. Lloyd, on her own initiative, searched the public records to find another
case involving Attorney Hanna. In that case, Attorney Hanna was being evicted; she was
not a party to that case. Ms. Lloyd sent an email to Attorney Flynn, the attorney of record
for the evicting plaintiff. In her email, Ms. Lloyd disparaged Attorney Hanna and offered
negative testimony about his character, which incidentally was unnecessary and
irrelevant to the matter of eviction. Attorney Flynn replied, politely thanking her for the
email and indicating that he would review the public records available in this case. He
later provided an affidavit attesting he did not review the public record she referenced.
{¶29} Attorney Whitacre, though at the same firm as Attorney Flynn, attested that
he did not read Ms. Lloyd’s email to Attorney Flynn. Moreover, Ms. Lloyd attached an
unredacted copy of her email to Attorney Flynn to her motion, which made it a matter of
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public record, negating any argument that she intended anything in that email to remain
confidential.
{¶30} Ms. Lloyd did not seek representation from Attorney Flynn in any matter,
she did not meet with any attorney from that office, and Attorney Flynn did not offer her
legal advice. Her unsolicited email disparaging third parties does not create an attorney-
client relationship. Thus, the trial court did not err in finding no conflict existed and
denying her motion for disqualification.
{¶31} Accordingly, Ms. Lloyd’s thirteenth assignment of error is without merit.
{¶32} Her tenth assignment of error states:
{¶33} Trial court committed reversible error and an abuse of discretion by
not releasing audio of Lloyd[’]s trial after Pokorny ordered it to be
released and Lloyd is entitled to audio violating Rule 11 of
Superintendence, Slagle V Rogers and the Sunshine Laws(T.d. 434)
[sic]
{¶34} On August 20, 2019, Ms. Lloyd filed a motion to release audiotape of the
June 17 to 21, 2019 trial; three days later she filed a second request. In each request,
she accuses the Portage County Court of Common Pleas and Judge Doherty’s court
reporter of altering a previous transcript. On August 30, 2019, the court granted the
release of the audio. On October 31, 2019 several defendants filed a motion to vacate
the court’s order granting release of the audio transcript, on the grounds that the transcript
likely contains audio for all parties that is protected by attorney-client privilege and the
attorney work-product doctrine, unless the audio transcript can be scrubbed of all
privileged discussions. On November 8, 2019 the court vacated its earlier order, finding
that the recording was “continuous and not limited to ‘on the record’ matters.”
{¶35} On appeal, Ms. Lloyd argues (1) the court erred by denying that request
citing R.C. 149.43; (2) that the transcript is being provided at a cost in excess of that
10
permitted by Slagle v. Rogers, and; (3) that pursuant to R.C. 149.43(C)(1), she is entitled
to $1,000 in damages for the delay in access to these public records. However, the
appropriate vehicle to allege a violation of R.C. 149.43 is set forth in Section (C)(1):
{¶36} If a person allegedly is aggrieved by the failure of a public office or
the person responsible for public records to promptly prepare a
public record and to make it available to the person for inspection in
accordance with division (B) of this section or by any other failure of
a public office or the person responsible for public records to comply
with an obligation in accordance with division (B) of this section, the
person allegedly aggrieved may do only one of the following, and not
both:
{¶37} (a) File a complaint with the clerk of the court of claims or the clerk
of the court of common pleas under section 2743.75 of the Revised
Code;
{¶38} (b) Commence a mandamus action to obtain a judgment that orders
the public office or the person responsible for the public record to
comply with division (B) of this section * * *.
{¶39} Thus, insofar as Ms. Lloyd asserts a violation of R.C. 149.43, this appeal is
not the appropriate vehicle by which to bring her grievance. See also State ex rel. Slagle
v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, (reviewing the appellate court’s grant of
a writ of mandamus for an alleged violation of R.C. 149.43.) Furthermore, as stated under
Ms. Lloyd’s first assignment of error, the Rules of Superintendence do not create
individual rights.
{¶40} Accordingly, Ms. Lloyd’s tenth assignment of error is without merit.
{¶41} Her third assignment of error states:
{¶42} The trial court committed reversible error and an abuse of discretion
by denying Lloyd default judgment in violation of FRCP 55a and
Local Rules 11.04 and 9.01 (T.d. 302, Paragraph 2))(T.D. 344) [sic]
{¶43} FRCP 55a states: “When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by
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affidavit or otherwise, the clerk must enter the party’s default.” As previously noted, the
Ohio Rules of Civil Procedure, not the Federal Rules of Civil Procedure, apply in this case.
Civ.R. 55 states in pertinent part:
{¶44} (A) Entry of judgment. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules, the party entitled to a judgment by default
shall apply in writing or orally to the court therefor * * *. If the party
against whom judgment by default is sought has appeared in the
action, he (or, if appearing by representative, his representative)
shall be served with written notice of the application for judgment at
least seven days prior to the hearing on such application. * * *.
{¶45} (B) Setting aside default judgment. If a judgment by default has been
entered, the court may set it aside in accordance with Rule 60(B).
{¶46} (C) Plaintiffs, counterclaimants, cross-claimants. The provisions of
this rule apply whether the party entitled to the judgment by default
is a plaintiff, a third-party plaintiff or a party who has pleaded a cross-
claim or counterclaim. In all cases a judgment by default is subject
to the limitations of Rule 54(C).
{¶47} Preliminarily, we note that contrary to Ms. Lloyd’s argument, Loc.R. 9.01
and 11.04 are inapplicable to this assignment of error, and as discussed under her second
assignment of error, violations of Local Rules do not generally constitute grounds for
reversal.
{¶48} Further, Ms. Lloyd argues she was entitled to default judgment against all
defendants except Trussel and Schaffer because, she argues, the other defendants failed
to timely answer the complaint. Though Ms. Lloyd’s fourth amended complaint contained
101 claims for relief against 26 defendants, most of the claims for relief and several
defendants were dismissed or granted directed verdict. Ultimately, the court provided the
jury instructions on twelve claims for relief against five defendants, to wit:
{¶49} Eric Siwierka – Claim of Nuisance
{¶50} Phillip Siwierka – Claim of Nuisance
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{¶51} Joshua Thornsbery – Claims of Nuisance, Trespass-Destruction of
Timber, Defamation, Invasion of Privacy, and Intentional Infliction of
Emotional Distress.
{¶52} Michael Szabo – Claims of Defamation, Invasion of Privacy, and
Intention Infliction of Emotional Distress
{¶53} Timothy Welms – Claims of Nuisance and Intentional Infliction of
Emotional Distress
{¶54} We limit our review under this assignment of error to the consideration of
only these defendants, as the dismissal or directed verdict for the remaining defendants
renders her argument under this assignment of error moot as to those defendants.
{¶55} “‘The granting of a default judgment * * * is a harsh remedy which should
only be imposed when “the actions of the defaulting party create a presumption of
willfulness or bad faith.”’” Sericola v. Johnson, 11th Dist. Trumbull No. 2015-T-0091,
2016-Ohio-1164, ¶18, quoting Domadia v. Briggs, 11th Dist. Geauga No. 2008-G-2847,
2009-Ohio-6510, ¶19. “[I]t is a fundamental tenet of judicial review in Ohio that courts
should decide cases on the merits.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189,
192 (1982).
{¶56} “It is well-settled that a trial court may permit the filing of an untimely answer
where the record contains sufficient evidence of excusable neglect.” State of Ohio Dept.
of Dev. v. Matrix Centennial, L.L.C., 10th Dist. Franklin No. 14AP-47, 2014-Ohio-3251,
¶26, citing State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty., 72 Ohio St.3d
464, 466 (1995). “‘The determination of whether neglect is excusable or inexcusable
must take into consideration all the surrounding facts and circumstances, and courts must
be mindful of the admonition that cases should be decided on their merits, where possible,
rather than procedural grounds.’” Sericola, supra, at ¶19, quoting Lindenschmidt, supra.
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{¶57} Ms. Lloyd filed her first complaint against Joshua Thornsbery March 16,
2016. He answered and filed a counterclaim on April 18, 2016. She added Eric Siwierka,
Phillip Siwierka, Michael Szabo, and Timothy Welms in an amended complaint on March
3, 2017. The record reflects that Eric Siwierka was not successfully served immediately.
Michael Szabo filed a pro se motion to dismiss on March 15, 2017. That motion was
denied. Though he did not file an answer within 14 days, he retained Attorney Hanna to
represent him. Attorney Hanna did not file a notice of appearance but began filing on
behalf of Michael Szabo in June 2017. Attorney Hanna became hospitalized and
incapacitated sometime before the filing of the motion for default judgment.
{¶58} Ms. Lloyd’s first motion for default judgment filed through her counsel was
on June 3, 2019. It was denied the next day. Shortly thereafter, Eric Siwierka, Phillip
Siwierka, and Timothy Welms hired Attorney Whitacre, who was already representing
Joshua Thornsbery, to also represent them. Michael Szabo obtained representation from
Attorney Molnar, replacing Attorney Hanna. Attorney Molnar filed an answer to the fourth
amended complaint on behalf of Michael Szabo the same day she filed her notice of
appearance: June 13, 2019. Attorney Whitacre filed an answer on behalf of his clients
on June 17, 2019. This was not his first filing; he had filed several motions and briefs
since he filed his notice of appearance in April 2019. Thus, the record reflects that though
late, the relevant defendants did file an answer to Ms. Lloyd’s fourth amended complaint.
{¶59} We now consider whether the record contains sufficient evidence of
excusable neglect. By the time the notice of default had been filed in June 2019, the case
had been pending for three years and had gone through at least two failed mediations.
There had been several imperfect services against several defendants. The first three
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iterations of the complaint were so vague that three motions for a more definite statement
were granted. The initial judge voluntarily recused herself and the Supreme Court of Ohio
appointed a visiting, retired judge to preside over the case. The final, fourth amended
complaint was nearly 500 pages, plus nearly 300 pages of exhibits, and contained 101
claims for relief against 26 defendants. Considering that judgment on the merits is highly
preferable to the harsh granting of default judgment, and considering the lengthy,
voluminous, and convoluted procedural history, we find there was sufficient evidence in
the record to show excusable neglect in this case.
{¶60} Moreover, Ms. Lloyd, through counsel, filed her first motion for default
judgment nearly a year after she filed her fourth amended complaint. She never moved
to strike any of the defendants’ filings for untimeliness or because they were in default.
She instead continued to reply to the filings. By her responses, Ms. Lloyd may be deemed
to have recognized and accepted the untimely filings.
{¶61} In light of the foregoing, we find the trial court did not err in denying Ms.
Lloyd’s motions for default judgment. Accordingly, Ms. Lloyd’s third assignment of error
is without merit.
{¶62} Ms. Lloyd’s fourth assignment of error states:
{¶63} The trial court committed reversible error and an abuse of discretion
by violating Rules of Superintendence 5D, 40 A3,[ ]30B.
{¶64} Under her fourth assignment of error, Ms. Lloyd states the issue for review
as: “Did the trial court commit reversible error and abuse of discretion by violating the
Rules of Superintendence?” As we have stated above, the rules of superintendence do
not create individual rights as they are not the equivalent of rules of procedure and have
no force equivalent to a statute. They are purely internal housekeeping rules which are of
15
concern to the judges of the several courts. Thus, we answer her issue for review in the
negative.
{¶65} Ms. Lloyd also argues the judge was required to consider the feasibility of
recording testimony as permitted by FRCP 30(B). As stated before, the Ohio Rules of
Civil Procedure govern this case, not the FRCP. Moreover, even if the FRCP were
applicable, FRCP 30 pertains to “depositions by oral examination.” She does not,
however, allege error in regard to depositions.
{¶66} Accordingly, Ms. Lloyd’s fourth assignment of error is without merit.
{¶67} Ms. Lloyd’s seventh assignment of error states:
{¶68} The trial court committed reversible error and an abuse of discretion
by denying Lloyd discovery (T.d. 269 Paragraph 4)(T.d. 302,
Paragraph 4) [sic]
{¶69} Under this assignment of error, Ms. Lloyd asserts that she is entitled to Mr.
Thornsbery’s social media usernames and passwords, citing Forinash v. Weber, 6th Dist.
Sandusky No. S-16-019, 2017-Ohio-1076. However, her reliance on Forinash is
misplaced. The Sixth District Court of Appeals in Forinash did not discuss the
accessibility of Facebook passwords and usernames to parties to a defamation suit.
Instead, Forinash reversed a trial judge’s award of nominal damages, which was based
on the assumption that a Facebook post would primarily be seen in the county in which it
was posted, finding that assumption erroneous. The court remanded for the
reexamination of damages. It also affirmed the decision of the lower court finding there
was no spoliation of evidence when defendant deleted the relevant post upon receiving
the complaint when the plaintiff failed to file a protection order and the remedy sought
was the removal of the Facebook post. Those facts are inapplicable to the case at hand.
Therefore, Ms. Lloyd has provided no law in support of her argument that she is entitled
16
to the username and password of Mr. Thornsbery’s Facebook page. “‘It is the duty of the
appellant, not the appellate court, to construct the legal arguments necessary to support
the appellant’s assignments of error.’” Deutsche Bank Natl. Tr. Co. v. Sopp, 10th Dist.
Franklin No. 14AP-343, 2016-Ohio-1402, ¶6, quoting Bond v. Village of Canal
Winchester, 10th Dist. Franklin No. 07AP-556, 2008-Ohio-945, ¶16.
{¶70} Moreover, Ms. Lloyd attached almost 300 pages of exhibits, most of which
were pictures of the defendants’ Facebook posts. She alleges that the parties have since
made their pages private, but her complaint was based on posts made by defendants
prior to the complaint. At the time of the complaint, their pages were not private, and Ms.
Lloyd took pictures of the relevant posts and attached them as exhibits. As such, we fail
to see how Ms. Lloyd was prejudiced by the trial court’s denial of access to the defendants
Facebook usernames and passwords.
{¶71} Additionally, Ms. Lloyd argues that she “was never given the opportunity to
conduct discovery on the majority of the Defendants as [Judge] Doherty was supposed
to amend the case management plan at status conference in July 2017 but that hearing
never took place.” She argues that she was denied a constitutional right to discovery.
However, “the denial of additional time to conduct discovery does not rise to the level of
a due process violation because ‘[t]here is no general constitutional right to discovery.’”
Ditech Financial, LLC v. Glob. Capital Partners, 10th Dist. Franklin No. 17AP-470, 2018-
Ohio-1998, ¶11, quoting Midland Steel Prods. Co., v. Internatl. Union, United Auto.,
Aerospace and Agricultural Implement Workers, Local 486, 61 Ohio St.3d 121, 131
(1991).
17
{¶72} Moreover, her argument that she was never given the opportunity to
conduct discovery is not supported by the record. When Ms. Lloyd sought leave to file
an amended complaint in February 2017, the discovery deadline was extended an
additional two weeks to March 31, 2017. She filed her amended complaint on March 3,
2017 and filed an additional request to extend discovery just before the deadline. A
hearing was held on March 31, 2017, the day of the discovery deadline, but the order
issued following that hearing did not address the discovery deadline. There is nothing in
the record which shows that Ms. Lloyd or her attorney requested that the discovery
extension be addressed in that hearing. Regardless, Ms. Lloyd did, in fact, continue to
conduct discovery, for example, by serving Requests for Admissions on May 5, 2017.
Moreover, neither she nor her attorney pursued a follow up on the request for a new case
management plan or the extension for over two years.
{¶73} In June 2019, Ms. Lloyd filed a motion for writ of mandamus in this court
seeking, inter alia, a writ ordering the trial court to rule on her motion to extend discovery.
Before she voluntarily withdrew that motion, this court denied her “Emergency Motion for
Stay” in a June 14, 2019 judgment entry. In that entry, we noted that “[a]lthough [Lloyd]
maintains that she could not conduct discovery over this two-plus-year period due to the
March 31, 2017 deadline, she concedes her motion to extend was unopposed and the
docket demonstrates she filed numerous requests for admissions in May and June 2017.
It is unclear, irrespective of the March 2017 deadline, why [Lloyd] did not attempt to seek
further discovery throughout the next two-year period, especially when previous attempts
were unopposed.” We further noted that the procedural history in the record “certainly
suggest[s]” Lloyd was prepared to proceed with trial. We see no reason to now deviate
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from that prior finding. In light of the foregoing, we find the trial court did not abuse its
discretion in denying her motion to extend discovery.
{¶74} Finally, Ms. Lloyd also states that “Rule26(a)(2) prevents an attorney from
taking undue advantage of an adversary.” We need not decipher which rule she is citing
as she does not assert in any way that any attorney took undue advantage of any
adversary.
{¶75} Accordingly, Ms. Lloyd’s seventh assignment of error is without merit.
{¶76} Her fifth assignment of error states:
{¶77} The trial court committed reversible error and an abuse of discretion
by granting directed verdict?[ ](T.d. 332)(T.d. 343) [sic]
{¶78} Ms. Lloyd argues that the trial court erred by granting directed verdicts
against several defendants after her counsel failed to mention them by name in his
opening arguments. She also faults the court for giving her counsel 20 minutes for
opening statements. A trial court’s decision on a motion for directed verdict presents a
question of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio
St.3d 348, 2006-Ohio-1189, ¶14.
{¶79} Initially, we note that Ms. Lloyd’s counsel was given the opportunity of
requesting additional opening statement time and declined:
{¶80} THE COURT: Okay. 20 minutes? More, you need more?
{¶81} MR. HULL: No.
{¶82} THE COURT: 20 minute limit? I mean, I ordinarily don’t do that, but
we have so many parties here, I’m trying to keep the trial within a
reasonable time for us to conclude, so, okay. Good.
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{¶83} The limit was applied equally to all parties and Ms. Lloyd’s counsel declined
additional time. Therefore, we find no error with the trial court’s limiting the opening
statements.
{¶84} Ohio Civ. R. 50(A)(4), not the Federal Rules of Civil Procedure as stated
earlier, governs direct verdicts in this case and states:
{¶85} When a motion for a directed verdict has been properly made, and
the trial court, after construing the evidence most strongly in favor of
the party against whom the motion is directed, finds that upon any
determinative issue reasonable minds could come to but one
conclusion upon the evidence submitted and that conclusion is
adverse to such party, the court shall sustain the motion and direct a
verdict for the moving party as to that issue.
{¶86} “[A] trial court may grant a motion for directed verdict made at the close of
a party’s opening statement only when that statement indicates that the party will be
unable to sustain its cause of action or defense at trial.” Parrish v. Jones, 138 Ohio St.3d
23, 2013-Ohio-5224, ¶10. We are cognizant that “‘[a] trial court should exercise great
caution in sustaining a motion for a directed verdict on the opening statement of counsel;
it must be clear that all the facts expected to be proved, and those that have been stated,
do not constitute a claim for relief or a defense, and the statement must be liberally
construed in favor of the party against whom the motion has been made.’” Id. at ¶25,
quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223 (1975). Directed verdict may only be
granted following opening statements when the statements indicate that the party will be
unable to sustain its claim for relief or defense at trial. Id.{¶87} “The trial court does not commit error in granting a defendant’s motion for
directed verdict, made at the close of plaintiff’s opening statement, ‘if, engaging in every
reasonable inference from facts favorable to the party against whom the motion is
directed, the proposed proof would not sustain a claim upon which relief could be
20
granted.’” U.S. Aviation Underwriters, Inc. v. B.F. Goodrich Co., 149 Ohio App.3d 569,
2002-Ohio-5429, ¶13 (9th Dist.), quoting Phillips v. Borg–Warner Corp., 32 Ohio St.2d
266, 268 (1972). In short, “to sustain the motion, ‘it must be clear that all the facts
expected to be proved, and those that have been stated, do not constitute a claim for
relief or a defense, and the statement must be liberally construed in favor of the party
against whom the motion has been made.’” Lippy v. Soc. Natl. Bank, 100 Ohio App.3d
37, 41 (11th Dist.1995), quoting Brinkmoeller, supra, at syllabus.
{¶88} Therefore, the issue to be determined is whether Ms. Lloyd’s opening
statement failed to state a claim against seventeen defendants. After careful review of
the record and construing the facts in the light most favorable to Ms. Lloyd, we conclude
her opening statement failed to state the necessary claims, as she altogether failed to
mention any element of any claim against seventeen defendants.
{¶89} Several Ohio courts have upheld directed verdicts after opening statements
when the nonmoving party failed to mention a critical element of a claim for relief. See,
e.g., Hicks v. Garrett, 5th Dist. Stark No. 2011CA00109, 2012-Ohio-3560, ¶68 (granted
directed verdict was not error in a negligent hiring/supervising case when appellant failed
to argue in opening arguments that appellee’s actions were anything other than
independent self-serving acts which in no way facilitated or promoted the business of the
other appellees.); Escort Transport, Inc. v. United Trans., Inc., 10th Dist. Franklin No.
80AP-574, 1980 WL 353879, *2.
{¶90} Moreover, Ms. Lloyd’s reliance on her complaint is misplaced. “Although
the trial court is not required to consider the pleadings when ruling on a Civ.R. 50(A)(1)
21
motion, in liberally construing the motion in favor of the opposing party, it may do so.”
(Emphasis original.) Parrish, supra.{¶91} Accordingly, Ms. Lloyd’s fifth assignment of error is without merit.
{¶92} Her sixth assignment of error states:
{¶93} Trial court committed reversible error and abuse of discretion by
denying Lloyd a new trial,[ ]mistrial and her Motion for Judgment
Notwithstanding the verdict in violation of FRCP 50, 59 and local rule
8.03 (T.d. 341)(T.d. 365, Paragraph 1) [sic]
{¶94} Under her sixth assignment of error, Ms. Lloyd’s only argument is that the
trial court erred by failing to hold a hearing before denying her a motion for a new trial,
mistrial, and motion for judgment notwithstanding the verdict.
{¶95} As stated above, the Federal Rules of Civil Procedure are not applicable
here. The equivalent Ohio Rules of Civil Procedure relevant here are Civ.R. 50 and Civ.R.
59. However, neither rule requires the court to hold a hearing before ruling on these
motions. Moreover, as we discussed under her second assignment of error, violations of
Local Rules do not generally constitute grounds for reversal.
{¶96} Accordingly, Ms. Lloyd’s sixth assignment of error is without merit.
{¶97} Her eighth assignment of error states:
{¶98} The trial court committed reversible error and an abuse of discretion
by violating FRCP Rules for admissibility of evidence and Local Rule
7.06[.]
{¶99} Ms. Lloyd argues that the trial court erred by not allowing the depositions or
testimony of her doctors, nor body camera footage, to be admitted. She argues the court
violated Loc.R. 7.06, which stated at the time of trial in pertinent part:
{¶100} * * * An objection to a video tape deposition shall be submitted to the
Court in writing at least three (3) days before trial. On separate paper,
counsel shall cite his/her authority for the objection.
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{¶101} Ms. Lloyd attempted to enter into evidence a deposition of Dr. Banzoic taken
in a separate Portage County Common Pleas Court case, 2017CV00390. She argues it
should be admitted because in that case Mr. Thornsbery was a defendant represented
by Attorney Hanna, and in this case, Mr. Thornsbery is a defendant and Attorney Hanna
is an attorney of record in this case. Mr. Thornsbery argues Dr. Banzoic’s testimony is
hearsay and was properly excluded.
{¶102} Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid. R. 801. Hearsay is not admissible unless it falls under an exception
listed in Evid.R. 803 or 804.
{¶103} Ms. Lloyd does not argue this testimony falls under any hearsay exception,
nor that Dr. Banzoic was unavailable to testify. To the contrary, Ms. Lloyd requested a
continuance to call Dr. Banzoic as a witness. We find the testimony of Dr. Banzoic from
a prior case does not fall under any hearsay exception. Accordingly, the court did not err
by refusing to admit it.
{¶104} Ms. Lloyd also attempted to enter into evidence body camera footage. The
court ordered that copies of all exhibits, including videos, be provided to opposing
counsel. Attorney Hull sent an email to defense counsel entitled “body cam footage” but
there was no video attached. When he attempted to enter the video into evidence at trial,
opposing counsel objected on the basis that they had not seen the footage before. Ms.
Lloyd’s counsel argued that it was public record they could have accessed and that the
defendants should know what was on that video because they were the ones being
recorded.
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{¶105} However, it is immaterial that the footage was public record or that the
defendants were on the video. It was Ms. Lloyd’s exhibit and she failed to follow the
court’s instructions to provide that evidence to opposing counsel. Opposing counsel
properly objected to its introduction without the opportunity to view it first. The trial court
did not err in sustaining the objection.
{¶106} Accordingly, Ms. Lloyd’s eighth assignment of error is without merit.
{¶107} Her ninth assignment of error states:
{¶108} The trial court committed reversible error and an abuse of discretion
by allowing Whitacre to violate his own orders in regards to Lloyd[’]s
Motion in Limine under ongoing and heavy objection by Hull[.]
{¶109} Ms. Lloyd filed a motion in limine requesting the defendants be precluded
from calling any witnesses, “referencing in any capacity any person, or any knowledge,
facts, transactions, occurrences or other happened of any person, other than any party
identified on plaintiff’s Witness List,” and “from using, introducing at [trial] or referencing
in any capacity, any document other than those on Plaintiff’s Exhibit List.” Several
defendants objected. The court ruled on the motion on the first day of trial, after asking
each defense counsel if they intended to call any witness that are not parties. Each
answered in the negative and the court stated: “Then relative to that issue, the motion in
limine is granted to the extent that the Defendants may not call witnesses who are not
parties.”
{¶110} A motion in limine is “‘tentative and precautionary in nature, reflecting the
court’s anticipatory treatment of an evidentiary issue at trial.’” Brannon v. Austinburg
Rehab. & Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396, ¶18 (11th Dist.), quoting
Biro v. Biro, 11th Dist. Lake Nos. 2006-L-068 and 2006-L-236, 2007-Ohio-3191, ¶18. “A
ruling on a motion in limine reflects the court’s anticipated treatment of an evidentiary
24
issue at trial and is a tentative, interlocutory, precautionary ruling.” Orbit Elecs., Inc. v.
Helm Instrument Co., 167 Ohio App.3d 301, 2006-Ohio-2317, ¶17 (8th Dist.). “‘The
sustaining of a motion in limine does not determine the admissibility of the evidence to
which it is directed. Rather it is only a preliminary interlocutory order precluding questions
being asked in a certain area until the court can determine from the total circumstances
of the case whether the evidence would be admissible.’” Id. at ¶18, quoting State v.
Maurer, 15 Ohio St.3d 239, 259-260, (1984), fn. 14, quoting Palmer, Ohio Rules of
Evidence, Rules Manual (1984) 446.
{¶111} During trial, Attorney Hull objected on the basis of the motion in limine
several times, most of which were overruled. Attorney Hull and Ms. Lloyd seemed to
operate under the assumption that the motion in limine was granted exactly as Ms. Lloyd
requested. However, the record is clear that the motion was granted only to the extent
that Defendants could not call witness who were not parties. No defendant did so.
{¶112} Accordingly, Ms. Lloyd’s ninth assignment of error is without merit.
{¶113} Her eleventh assignment of error states:
{¶114} The trial court committed reversible error and an abuse of discretion
by not properly instructing the jury on Destruction of Timber and
Willful and Wanton claims.
{¶115} Under this assignment of error, Ms. Lloyd argues that the court should have
included a jury instruction on destruction of timber, in violation of R.C. 901.51, and “willful
and wanton conduct.”
{¶116} “An appellate court will reverse a trial court’s refusal to give a party’s
requested jury instructions only if the trial court abused its discretion, and if so, only if that
refusal was prejudicial to the complaining party.” Frost v. Snitzer, 11th Dist. Trumbull No.
2005-T-0090, 2006-Ohio-3882, ¶95, citing Ballard v. Wal-Mart Stores, Inc., 12th Dist.
25
Warren No. CA98-05-014, 1999 WL 8353 (Jan. 11, 1999). “‘Prejudice’ will be found only
when the alleged error ‘cripples the entire jury charge.’” Frost, supra, quoting Jaworowski
v. Med. Radiation Consultants, 71 Ohio App.3d 320, 327-328 (2d Dist.1991). “As a whole,
the jury charge must be ‘so misleading and prejudicial to induce the erroneous verdict.’”
Frost, supra, quoting Cleveland Elec. Illuminating Co. v. Astorhurst Land Co., 18 Ohio
St.3d 268, 272 (1985). “‘If, “taken in their entirety, the instructions fairly and correctly state
the law applicable to the evidence presented at trial, reversible error will not be found
merely on the possibility that the jury may have been misled.”’” Withers v. Mercy Hosp.
of Fairfield, 12th Dist. Butler No. CA2010-02-033, 2010-Ohio-6431, ¶17, quoting Silver v.
Jewish Home of Cincinnati, 12th Dist. Warren No. CA2010-02-015, 2010-Ohio-5314, ¶81,
quoting Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993). See also Frost,
supra.
{¶117} Preliminarily, we note that Ms. Lloyd does not make any argument that she
was prejudiced by the jury instructions. For this reason alone, Ms. Lloyd’s arguments
under this assignment of error fails.
{¶118} Moreover, at trial, Ms. Lloyd’s attorney did not submit proposed jury
instructions, though he made several verbal suggestions, which were ultimately rejected.
He objected to the instructions on two points: that the court failed to provide a separate
instruction on destruction of timber and on “willful and wanton conduct.”
{¶119} First, we note that Ms. Lloyd’s fourth amended complaint itself does not list
“willful and wanton misconduct” as its own separate claim for relief; instead she alleges
“negligence with willful and wanton misconduct.” Regardless, even if the trial court erred
in failing to give a separate instruction on willful and wanton misconduct, Ms. Lloyd would
26
not be able to show prejudice as the trial court instructed the jury to consider whether any
of the defendants’ actions were wanton or willfully done, and the jury found in the
defendants’ favor, not finding willful or wanton misconduct.
{¶120} As to the destruction of timber claim, the court did include instructions on
the destruction of timber in the instructions regarding trespass to the jury. The jury found
that no defendant had trespassed to destroy timber or otherwise. Thus, Ms. Lloyd would
not be able to show prejudice even if we were to find the trial court erred in not including
a destruction of timber instruction to the jury.
{¶121} Additionally, Ms. Lloyd alleges Judge Pokorny and at least one juror fell
asleep during trial. She does not, however, cite any instance in the record where Ms.
Lloyd or her attorney noted on the record that the judge or a juror fell asleep. It is not the
duty of an appellate court to search the record for evidence to support an appellant’s
argument as to an alleged error. Sopp, supra, at ¶6. Accordingly, we find no merit to her
claims.
{¶122} Ms. Lloyd also faults the court for “having the jury room where they can be
heard in the court room.” She alleges the jury could be heard laughing from the court
room. Even accepting this as true, Ms. Lloyd does not make any argument that she was
prejudiced by their laughter. She does not suggest a reason why the jury was laughing;
nor is there anything in the record to support her claim. Fatally, she fails to cite any law
in support of her argument that the jury room should not be allowed within a certain
distance of the court room. As stated under Ms. Lloyd’s seventh assignment of error: “It
is the duty of the appellant, not the appellate court, to construct the legal arguments
27
necessary to support the appellant’s assignments of error.” Sopp, supra, quoting Bond
v. Canal Winchester, 10th Dist. Franklin No. 07AP-556, 2008-Ohio-945, ¶16.
{¶123} Accordingly, Ms. Lloyd’s eleventh assignment of error is without merit.
{¶124} Her twelfth assignment of error states:
{¶125} The trial court committed reversible error and an abuse of discretion
by violating FRCP 56 and having Judgement for the Defendants
when they admit to fault and there is no disputed facts in this case
and there was testimony to support every one of Lloyds claims. [sic]
{¶126} Under this assignment of error, Ms. Lloyd lists every instance where she
believes a defendant admitted fault. She presents her interpretation of the evidence
presented at trial and ignores any evidence presented to the contrary. Critically, she cites
no law other than a reference to FRCP 56, which pertains to summary judgment and, as
previously stated, is not applicable in this case. Even applying Ohio’s Civil Rules
pertaining to summary judgment, she did not move for summary judgment, and cannot
raise the issue for the first time on appeal. See Stores Realty Co., v. City of Cleveland,
Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d 41 (1975); Goldfuss v. Davidson
(1997), 79 Ohio St.3d 116, 121 (1997).
{¶127} Accordingly, Ms. Lloyd’s twelfth assignment of error is without merit.
{¶128} In light of the foregoing, the judgments of the Portage County Court of
Common Pleas are affirmed. Defendant-appellee, Amanda Shuherk’s, motion for
dismissal is denied.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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