Balco Realty, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 2021 Ohio 3349 ( 2021 )

[Cite as Balco Realty, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 2021-Ohio-3349.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BALCO REALTY, L.L.C., SUCCESSOR :
TO SPIRIT MASTER FUNDING IX,
L.L.C. :
No. 110207
Defendant-Appellant/ :
Cross-Appellee, :
v. :
CUYAHOGA COUNTY BOARD OF :
REVISION, ET AL.,
Plaintiffs-Appellees, :
ORANGE CITY SCHOOL DISTRICT :
BOARD OF EDUCATION,
Plaintiff-Appellee/ :
Cross-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 23, 2021
Administrative Appeal from the Board of Tax Appeals
Case Nos. 2015-2188 and 2015-2195
Appearances:
Sleggs, Danzinger & Gill, Co., LPA, and Todd W. Sleggs,
for appellant/cross-appellee, Balco Realty, L.L.C.,
successor to Spirit Master Funding IX, L.L.C.
Frantz Ward L.L.P., and John P. Desimone, for
appellee/cross-appellant, Orange City School District
Board of Education.
ANITA LASTER MAYS, P.J.:
Defendant-appellant/cross-appellee Balco Realty, L.L.C., successor
in interest to Spirit Master Funding IX, L.L.C. (“Balco”), and appellee/cross-
appellant Orange City Schools Board of Education (“BOE”) appeal the real property
tax valuation decision and order of the Ohio Board of Tax Appeals (“BTA”). Plaintiff-
appellee Cuyahoga County Board of Revision (“BOR”) did not file a brief in this case.
We affirm the BTA’s decision.
I. Background
The instant case involves the tax valuation of a Red Lobster
Restaurant located at 3655 Orange Place, Beachwood, Ohio, permanent parcel
number 901-01-064 for the 2014 tax year.1 The case was initiated by the BOE in
2015, determined by and appealed from the BTA to the BOR, to the Ohio Supreme
Court in Spirit Master Funding IX, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 155
Ohio St.3d 254, 2018-Ohio-4302, 120 N.E.3d 815, remanded to BTA and is now on
appeal.
1 The parties advise that there are three other active valuation cases regarding the
property: (1) BOR Case No. 901-064-2019 for tax year 2019; (2) for the 2018 tax year in
Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, BTA No. 2020-
1608; and (3) for the 2015 tax year in Spirit Funding IX, L.L.C. v. Cuyahoga Cty. Bd. of
Revision, 2019-Ohio-1349, 135 N.E.3d 371 (8th Dist.).
We extract portions of background information from the opinion for
expedience.
The subject property is a 7,534-square-foot restaurant situated on 2.26
acres and owned by appellant, Spirit Master Funding IX, L.L.C. In
August 2014, N and D Restaurants, Inc., sold the property to Red
Lobster Hospitality, L.L.C., for $2,925,880. In December 2014, Red
Lobster Hospitality sold it to Spirit Master for $3,439,029.
The Cuyahoga County auditor initially assessed the property at
$2,016,400 for tax year 2014. Appellee Orange City School District
Board of Education (“school board”) initially complained to appellee
Cuyahoga County Board of Revision (“BOR”) that the property should
have a higher valuation based on the latter of the 2014 sales. Because
the August 2014 sale was closer to the tax-lien date, the school board
later conceded that that sale was the one to use for valuation purposes,
as long as the BOR determined that it had occurred at arm’s-length.
Id. at ¶ 2-3.
“The school board presented to the BOR deeds and conveyance-fee
statements demonstrating both sales.” Id. at ¶ 4.
For its part at the BOR hearing, Spirit Master introduced the testimony
and appraisal of Richard G. Racek, Jr. [(“Racek”).] According to Racek,
the August 2014 sale of the subject property was part of the sale of the
entire Red Lobster restaurant chain for $2.1 billion. Racek stated that
$2,925,880 — the amount reported on the August 2014 conveyance-
fee statement — was allocated to the sale of the subject property. The
conveyance-fee statement reports that no part of the $2,925,880
consideration was allocable to assets other than the real property.
Racek acknowledged that the property was not encumbered by a lease
at the time of the August 2014 sale, but he stated that it was
encumbered by a 20-year lease that took effect around the time of the
December 2014 sale. He used the income and sales-comparison
approaches to reach a valuation of $1,535,000 as of January 1, 2014.
The BOR valued the property at $2,925,900 based on the August 2014
sale [and a tax value of $1,024,070]. Spirit Master appealed to the BTA,
arguing that Racek’s appraisal — rather than either of the 2014 sale
prices — reflected the true value of the property. The BTA declined to
consider Racek’s appraisal and retained the BOR’s valuation[s].
Relying on Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of
Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782, the
BTA “reject[ed] Spirit Master’s argument that changes to the language
of R.C. 5713.03 grant discretion to this board to determine whether to
adopt sales to determine the value of real property.” BTA Nos. 2015-
2188 and 2015-2195, 2016 Ohio Tax LEXIS 1873, *11 (Sept. 1, 2016).
Spirit Master appealed to this court.
Id. at ¶ 4-5.
The court observed that the parties agreed “the August 2014 sale was
at arm’s-length and recent to the tax-lien date.” Id. at ¶ 6. However, pursuant to
R.C. 5713.03 as amended, “the price of that sale is not ‘conclusive evidence’ of the
subject property’s value.” Id., quoting Terraza 8, L.L.C. v. Franklin Cty. Bd. of
Revision, 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 30. “Rather, it only
‘presumptively represents the value of the unencumbered fee-simple estate.’” Id.,quoting Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision, 153
Ohio St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079, ¶ 13. Bronx Park requires that
the BTA consider the sale price and ‘‘any other evidence the parties presented that
was relevant to the value of the unencumbered fee simple estate.” Spirit Master, 155
Ohio St.3d 254, 2018-Ohio-4302, 120 N.E.3d 815, at ¶ 6.
Thus, the BTA’s failure to consider the appraisal evidence was a
failure to consider all of the relevant evidence. “Because Racek’s appraisal is
relevant evidence, the BTA should have considered and weighed it.” Id. at ¶ 9. The
court vacated and remanded the case with the directive that “[t]he BTA shall not
permit the parties to submit new evidence on remand.” Id. at ¶ 10, citing Bronx
Park at ¶ 13.
As instructed, on December 8, 2020, the BTA considered the Racek
appraisal evidence on remand and issued its findings.2
On remand, we need not address whether the August 2014 sale is
reliable evidence of value. Rather, we must merely consider Racek’s
appraisal to determine whether it provides a better indication of value
than the sale of the subject property. As we consider the appropriate
weight to give Racek’s appraisal, we are mindful that the “best-evidence
rule of property valuation” creates a rebuttable presumption that the
sale price reflected true value. Terraza, supra. We observe that Racek
has performed a reasonable and well-supported appraisal analysis, but
ignored the sales of the subject property, instead relying on the
adjusted sales of other properties. All of the properties utilized by
Racek required some adjustments for differences among the
properties. By contrast, the sale of the subject property itself requires
no adjustment and no subjectivity to determine how a hypothetical
buyer would consider its physical attributes. Similarly, the income
approach requires subjective judgments based on the experience of
other properties rather than the experience of the subject. Thus, we
find that Racek’s appraisal report, which failed to utilize either sale of
the subject property, should be attributed less weight than a recent
arms’-length sale.
We recognize that the Court previously left this Board’s finding that the
August 2014 sale constituted a qualifying sale of the subject property
for purpose of valuation. We further note that Spirit Master has offered
no evidence to show that the sale is nevertheless unreliable evidence of
value. Accordingly, we find that the sale is more persuasive and should
be given more weight than Racek’s report.
Decision and Order, Ohio Board of Tax Appeals, p. 5 (Dec. 8, 2020).
The BTA again determined that the true value of the property as of
January 1, 2014, was $2,925,880 and the taxable value was $1,024,060.
2 The BTA noted on remand that the parties waived the opportunity to appear to
submit additional evidence and chose to rely on written arguments. We point out that the
remanding court in Spirit Master, 155 Ohio St.3d 254, 2018-Ohio-4302, 120 N.E.3d 815,
specified that additional evidence was not to be presented or considered. Id. at ¶ 10.
II. Direct appeal
Appellant states the December 8, 2020 Decision and Order of the
Board of Tax Appeals (“BTA Decision”) is unlawful and erroneous in the following
respects:
I. The BTA’s use of a sale that reflected the corporate spin off, bulk
sale of the entire Red Lobster restaurant chain to determine value when
no evidence was submitted to show that the sale reflected the
unencumbered fee simple value of the real estate as required by
R.C. 5713.03 is unreasonable and unlawful.
II. The Board of Tax Appeals decision and order adopting the use of
a sale when the evidence in the record showed that the sale did not
reflect the unencumbered fee simple value of the real estate is
unreasonable and unlawful.
III. The Board of Tax Appeals decision and order rejecting appraisal
evidence and testimony as to the unencumbered fee simple value of the
real estate is unreasonable and unlawful.
IV. The Board of Tax Appeals decision and order to reject
Appellant’s unrebutted appraisal evidence on the issue of the
unencumbered fee simple value of the real estate is unreasonable and
unlawful.
V. The Board of Tax Appeals interpretation of R.C. 5713.03 as
amended is unreasonable and unlawful.
VI. The Board of Tax Appeals decision and order is contrary to the
requirements of OAC Rule 5703-25-07, and is therefore unreasonable
and unlawful.
VII. The Board of Tax Appeals rejection or failure to consider the
appraisal testimony regarding the lease encumbering the property is
unreasonable and unlawful.
VIII. There is no evidence in the record to support the Board of Tax
Appeals finding that the value provided on the conveyance-fee
statement reflected the value of the unencumbered fee simple interest
in the real estate. The Board of Tax Appeals decision and order is
unreasonable and unlawful.
IX. The Board of Tax Appeals decision and order requiring that a
copy of the lease be included in the record is unreasonable and
unlawful. An appraiser is allowed to explain what terms in a lease do
not reflect market terms as of the valuation date in the appeal.
X. The Board of Tax Appeals characterization of the appraiser’s
testimony regarding the sale of the property as hearsay is unreasonable
and unlawful. An appraiser is allowed to explain why they could not
use a sale to determine the unencumbered fee simple value of the real
estate.
XI. The Board of Tax Appeals decision and order ignored Evid.R. 703
regarding the bases of opinion testimony by experts and is
unreasonable and unlawful.
XII. The Board of Tax Appeals finding that “we need not address
whether the August 2014 sale is reliable evidence of value” is
unreasonable and unlawful.
III. Scope of appeal issues
The BOE asserts that the scope of consideration in this case is limited
to the appraisal issue. The Ohio Supreme Court vacated the judgment and directed
that, on remand, the BTA consider the appraisal evidence that should have been
weighed and considered initially. The court specified that “[t]he BTA shall not
permit the parties to submit new evidence on remand.” Spirit Master, 155 Ohio
St.3d 254, 2018-Ohio-4302, 120 N.E.3d 815, at ¶ 10, citing Bronx Park, 153 Ohio
St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079, at ¶ 13.
This court recently acknowledged the impact of the mandate rule on
the scope of review upon remand:
“An appellate mandate works in two ways: it vests the lower court on
remand with jurisdiction and it gives the lower court on remand the
authority to render judgment consistent with the appellate court’s
judgment. Under the ‘mandate rule,’ a lower court must ‘carry the
mandate of the upper court into execution and not consider the
questions which the mandate laid at rest.’ Sprague v. Ticonic Natl.
Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); see also
State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-
4986, at ¶ 32, 915 N.E.2d 633 (‘We have expressly held that the Ohio
Constitution does not grant to a court of common pleas jurisdiction to
review a prior mandate of a court of appeals.’). The lower court may,
however, rule on issues left open by the mandate. Id. But when the
mandate leaves nothing left to decide, the lower court is bound to
execute it. Id. We have stated that the mandate rule ‘provides that a
lower court on remand must implement both the letter and the spirit of
the appellate court’s mandate and may not disregard the explicit
directives of that court.’ State v. Larkins, 8th Dist. [Cuyahoga]
No. 85877, 2006-Ohio-90, at ¶ 31.”
KeyBank Natl. Assn. v. Thalman, 8th Dist. Cuyahoga No. 108123, 2020-Ohio-660,
¶ 35, quoting State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16.
As the BTA acknowledged, “[o]n remand, we need not address
whether the August 2014 sale is reliable evidence of value. Rather, we must merely
consider Racek’s appraisal to determine whether it provides a better indication of
value than the sale of the subject property.” BTA Decision and Order, Case
Nos. 2015-2188 and 2015-2195, p. 4. (Dec. 8, 2020).
Based on the court’s mandate, we focus our analysis solely on the
BTA’s consideration of the appraisal evidence.
IV. Discussion
A. Standard of Review
This court’s standard of review is set forth in R.C. 5717.04:
If upon hearing and consideration of such record and evidence the
court decides that the decision of the board appealed from is reasonable
and lawful it shall affirm the same, but if the court decides that such
decision of the board is unreasonable or unlawful, the court shall
reverse and vacate the decision or modify it and enter final judgment
in accordance with such modification.
““‘The fair market value of property for tax purposes is a question of
fact, the determination of which is primarily within the province of the taxing
authorities.’”” Orange City School Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision,
8th Dist. Cuyahoga No. 107199, 2019-Ohio-634, ¶ 17, quoting Schutz v. Cuyahoga
Cty. Bd. of Revision, 153 Ohio St.3d 23, 2018-Ohio-1588, 100 N.E.3d 362, ¶ 6,
quoting Cuyahoga Cty. Bd. of Revision v. Fodor, 15 Ohio St.2d 52, 239 N.E.2d 25(1968), syllabus. ““‘[T]his court will not disturb a decision of the [BTA] with respect
to such valuation unless it affirmatively appears from the record that such decision
is unreasonable or unlawful.’”” Id., quoting Schutz at ¶ 6, quoting Fodor at syllabus.
Thus, this court must “affirm the BTA’s decision if it is ‘reasonable and lawful.’ Id.;
R.C. 5717.04; Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d
954, ¶ 14.” Id. at ¶ 18.
Our review of the legal questions addressed by the BTA is de novo,
but “we defer to the BTA’s factual findings, including determinations of property
value, as long as they are supported by reliable and probative evidence in the
record.” Id. at ¶ 18, citing Lunn v. Lorain Cty. Bd. of Revision, 149 Ohio St.3d 137,
2016-Ohio-8075, 73 N.E.3d 486, ¶ 13.
B. Analysis
We reiterate that
R.C. 5713.03 requires county auditors to “determine, as nearly as
practicable, the true value of the fee simple estate, as if
unencumbered * * *,” of real property. In so doing, if the property “has
been the subject of an arm’s- length sale between a willing seller and a
willing buyer within a reasonable length of time, * * * the auditor may
consider the sale price * * * to be the true value for taxation purposes.”
Id.Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 159 Ohio St.3d
283, 2020-Ohio-353, 150 N.E.3d 877, ¶ 28; Spirit Master, 155 Ohio St.3d 254, 2018-
Ohio-4302, 120 N.E.3d 815, at ¶ 6.
R.C. 5713.03 creates a rebuttable presumption that a property’s
recent sale price in an arm’s-length transaction constitutes the best evidence of the
true monetary value. Columbus City Schools Bd. of Edn. at ¶ 29, quoting Terraza
8, 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, at ¶ 33, quoting Conalco,
Inc. v. Monroe Cty. Bd. of Revision, 50 Ohio St.2d 129, 363 N.E.2d 722 (1977),
paragraph one of the syllabus, quoting R.C. 5713.01. The court also recognizes “‘a
companion presumption that ‘a submitted sale price “has met all the requirements
that characterize true value,’” subject to rebuttal by proof that the sale was not at
arm’s-length or not recent.’” Id. at ¶ 29, quoting Terraza 8 at ¶ 32, quoting
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78 Ohio St.3d
325, 327, 677 N.E.2d 1197 (1997).
It is undisputed that the appellant bears the burden of proof when
appealing to the BTA. Shinkle v. Ashtabula Cty. Bd. of Revision, 135 Ohio St.3d 227,
2013-Ohio-397, 985 N.E.2d 1243. This court defers to the BTA’s factual findings
where they are not unlawful or unreasonable. We do not find that is the case upon
our review of the record.
The parties agreed that the $2,925,880 August 2014 sale was recent
to the tax-lien date and was at arm’s-length. The conveyance fee statement that
accompanied the deed lists the price at $2,925,880. Racek stated that the property
was not unencumbered by a lease at the time and confirmed that the stated amount
was allocated to the sale of the property.
Racek determined that the unencumbered fee simple interest value
was $1,535,000. Balco explains that the valuation is based on “the contract rent
(from the December 29, 2014 sale and leaseback transaction) of the property” and
“current economic (market) rent” and “a market vacancy and collection loss,
expenses and capitalization rate in valuing the unencumbered fee simple interest in
the real property under the income approach at $1,570,000.” Appellant’s brief, p. 5.
In addition, Racek employed a sales comparison analysis and arrived at the
$1,535,000 valuation.
Balco offers that the BTA’s decision and order finding that the
appraisal evidence lacked weight conflicts with Ohio Adm.Code 5703-25-07 that
governs appraisals. Ohio Adm.Code 5703-25-07(D) authorizes the use of the
market data, income, and cost approaches.
(D) In arriving at the estimate of true value the county auditor may
consider the use of any or all of the recognized three approaches to
value: * * *
(1) The market data approach — The value of the property is estimated
on the basis of recent sales of comparable properties in the market area
after allowance for variation in features or conditions. The use of the
gross rent multiplier is an adaptation of the market approach useful in
appraising rental properties such as apartments. This is most
applicable to the types of property that are sold often.
(2) The income approach — The value is estimated by capitalizing the
net income after expenses, including normal vacancies and credit
losses. While the contract rental or lease of a given property is to be
considered the current economic rent should be given weight.
Expenses should be examined for extraordinary items. In making
appraisals by the income approach for tax purposes in Ohio provision
for expenses for real property taxes should be made by calculating the
effective tax rate in the given tax district as defined in paragraph (E) of
rule 5703-25-05 of the Administrative Code, and adding the result to
the basic interest and capitalization rate, interest and capitalization
rates should be determined from market data allowing for current
returns on mortgages and equities. The income approach should be
used for any type of property where rental income or income attributed
to the real property is a major factor in determining value. The value
should consider both the value of the leased fee and the leasehold.
(3) The cost approach — The value is estimated by adding to the land
value, as determined by the market data or other approach, the
depreciated cost of the improvements to land. In some types of special
purpose properties where there is a lack of comparable sales or income
information this is the only approach. Due to the difficulties in
estimating accrued depreciation, older or obsolete buildings value
estimates often vary from the market indications.
Balco argues that the BOE failed to show that the sale price sufficiency
represented the unencumbered fee simple value and that Ohio Adm.Code 5703-25-
07(D)(2) applies here. The appellant in Terraza posed similar challenges. The court
explained “Terraza’s argument implicates two distinct, yet related, judicially created
rebuttable presumptions.” Terraza, 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d
916, at ¶ 32.
The first is the presumption that a submitted sale price “has met all the
requirements that characterize true value.” Cincinnati School Dist. Bd.
of Edn., 78 Ohio St.3d 325, 327, 677 N.E.2d 1197. In Dublin City
Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 118 Ohio St.3d 45,
2008-Ohio-1588, 885 N.E.2d 934, we applied Cincinnati School Dist.
in the context of encumbrances, stating that “the burden lies upon the
party who opposes the use of the sale price to show that the
encumbrances on the property constitute a reason to disregard the sale
price as an indicator of value.” This supports our conclusion that the
proponent of a sale is not required, as an initial matter, to affirmatively
demonstrate with extrinsic evidence that a sale price reflects the value
of the unencumbered fee-simple estate. Once the BOE provided basic
documentation of the sale, Terraza had the burden of going forward
with rebuttal evidence showing that the price did not, in fact, reflect the
property’s true value. See Cincinnati School Dist. Bd. of Edn., 78 Ohio
St.3d 325, 327, 677 N.E.2d 1197, at 327-328.
Id. at ¶ 32.
The Terraza court next addressed the second presumption:
The second presumption is rooted in the best-evidence rule of property
valuation, which, as explained earlier in this opinion, provides that
“[t]he best evidence of the ‘true value in money’ of real property is an
actual, recent sale of the property in an arm’s-length transaction.”
Conalco, 50 Ohio St.2d 129, 363 N.E.2d 722, at paragraph one of the
syllabus, quoting R.C. 5713.01; Park Invest. Co., 175 Ohio St. at 412, 195
N.E.2d 908. We have said that this rule — which existed before
R.C. 5713.03 was amended to refer to recent arm’s-length sales, see 136
Ohio Laws, Part II, at 3247 creates a rebuttable presumption that the
sale price reflected true value. See Ratner I, 23 Ohio St.3d at 61, 491
N.E.2d 680. Nothing suggests that the General Assembly intended to
depart from this longstanding rule. Indeed, R.C. 5713.03 continues to
refer to recent arm’s-length sales by permitting the use of sale prices in
determining value. This signals that the General Assembly still favors
the use of recent arm’s-length sale prices in determining value for
taxation purposes.
Id. at ¶ 33.
The conveyance fee “statement has been important in other cases
involving the sale price of real estate as we have often justified applying the sale-
price presumption to the amount the property owner reported on the conveyance-
fee statement.” Columbus City School Bd. of Edn., 159 Ohio St.3d 283, 2020-Ohio-
353, 150 N.E.3d 877, at ¶ 44.
The parties agreed the conveyance fee sum stated the amount
allocable to the property. Racek acknowledged that the property was not
encumbered by a lease at the time of the August 2014 transaction. Spirit Master,
155 Ohio St.3d 254, 2018-Ohio-4302, 120 N.E.3d 815, at ¶ 4. The BTA weighed the
appraisal evidence and determined that Racek’s assessments required adjustments
to compensate for the value of comparable properties Racek relied on to support his
findings. BTA afforded greater weight to the sale price.
We do not find that the BTA’s decision was unlawful or unreasonable.
Fodor, 15 Ohio St.2d 52, 239 N.E.2d 25 (1968), syllabus. Balco’s arguments do not
support a reversal. In re S.M.T., 8th Dist. Cuyahoga No. 97181, 2012-Ohio-1745, ¶ 3.
In addition, our determination renders the remaining assigned errors moot.
App.R. 12(A)(1)(c).
V. Cross-Appeal
The BOE presents a single issue on cross-appeal: The Board of Tax
Appeals erred when failing to value the real property at a December 29, 2014 sale.
As the BOE posits in its brief as a possibility, our determination that the scope of the
appeal is limited to review of the appraisal issue moots our consideration of this
assigned error. App.R. 12(A)(1)(c).
VI. Conclusion
Judgment affirmed.
It is ordered that appellee/cross-appellant recover from appellant/cross-
appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Ohio
Board of Tax Appeals 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
LARRY A. JONES, SR., J., and
MICHELLE J. SHEEHAN, J., CONCUR