Filed 11/5/10 NO. 4-10-0123
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JOHN BELL, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Champaign County DON PRUDHOMME RACING, INC., ) No. 09L240 Defendant-Appellee. ) ) Honorable ) Michael Q. Jones, ) Judge Presiding. _________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In November 2009, plaintiff, John Bell, filed a com-
plaint for retaliatory discharge against defendant, Don Prudhomme
Racing, Inc., his former employer. The next month, defendant
filed a motion to dismiss the action for lack of personal juris-
diction. After a January 2010 hearing, the trial court granted
defendant's motion to dismiss.
Plaintiff appeals, asserting the trial court erred by
finding it lacked personal jurisdiction over defendant. We
reverse and remand with directions.
I. BACKGROUND
Plaintiff's November 2009 complaint alleged he was a
resident of Champaign County, Illinois, and defendant was a California corporation doing business in Champaign County. In
February 2001, defendant hired plaintiff as a marketing and
hospitality assistant coordinator, and plaintiff performed all of
the terms, conditions, and requirements of his position in a
satisfactory manner. On or around October 27, 2004, plaintiff
was injured on the job and reported the injury to his employer.
During the week of December 12, 2004, defendant terminated
plaintiff's employment. Plaintiff asserted defendant's termina-
tion of his employment was in retaliation for his reporting the
work-related injury and subsequently filing a workers' compensa-
tion claim.
Defendant filed a motion to dismiss for lack of per-
sonal jurisdiction, asserting no contract was signed in Illinois
and no tortious act took place here. In support of its motion,
defendant attached the affidavit of Edward L. Allum, Jr., defen-
dant's general manager. Allum stated defendant's main office was
located in Vista, California, and it has another facility in
Brownsburg, Indiana. Defendant did not have an office in Illi-
nois. From about February 1 through November 30, each year, an
entire crew, which would have included plaintiff, was on the road
traveling from racing event to racing event all over the country.
Defendant attended two racing events in Illinois that lasted five
- 2 - to six days. One was in Will County and the other in Madison
County. Outside of those two events, defendant did not have
contact with Illinois.
In January 2010, plaintiff filed a response to defen-
dant's motion to dismiss, asserting Illinois had jurisdiction
under the Workers' Compensation Act. See 820 ILCS 305/1(b)(2)
(West 2008). Plaintiff also argued the parties' employment
contract was created and carried out in substantial connection
with Illinois. In support of his position, plaintiff attached
his own affidavit.
In his affidavit, plaintiff stated he was an Illinois
resident and received multiple telephone calls at his residence
from defendant's acting manager, Cory Watkins. Watkins offered
him employment with defendant via a telephone call while plain-
tiff was in Illinois, and plaintiff accepted employment in
Illinois. Defendant mailed plaintiff an employment package to
his Illinois residence, which plaintiff completed and returned to
defendant via Federal Express from his residence. Defendant
employed plaintiff from 2001 to 2004. As part of his employment,
plaintiff maintained, repaired, and stored a semitrailer at his
residence, which he used to transport defendant's equipment to
various races across the nation. Each year of his employment, he
- 3 - drove the semitrailer to and performed his regular job duties at
three races in Illinois. Moreover, during his employment,
plaintiff was based out of his Illinois residence and received
work assignments from defendant's employees by telephone at his
residence. Last, plaintiff was at his residence when he received
the call from defendant terminating his employment.
Defendant filed a response, asserting (1) the Illinois
Workers' Compensation Act did not apply to this case, (2) defen-
dant hired plaintiff in California, (3) plaintiff performed the
majority of his duties in other states, and (4) no tortious act
took place in Illinois. Defendant did acknowledge a third racing
event took place in Illinois when defendant was employed, and
that event took place in Cook County. Defendant also attached
the affidavit of Robert E. Craig, defendant's mobile marketing
unit manager from 1999 to 2007, and a supplemental affidavit by
Allum.
In his affidavit, Craig stated he interviewed plaintiff
for a position with defendant in Topeka, Kansas, in 2000. In
December 2000, Craig telephoned plaintiff and informed him
defendant would offer him a job if all of his paperwork and tests
were completed satisfactorily. Craig further told plaintiff he
would not be an employee of defendant until plaintiff (1) was at
- 4 - the shop in California; (2) interviewed by Don Prudhomme; and (3)
completed the employment paperwork, commercial driver's license
record report, background check, drug test, and driving test.
Defendant hired plaintiff for a support position for the trans-
portation, assembly, and onsite staffing of a mobile marketing
unit operated by defendant for a smokeless tobacco company at all
national racing events during the drag-racing season. Defen-
dant's driving duties required him to transport a semitrailer (1)
to and from racing events all around the country, (2) to defen-
dant's facilities in California and Indiana, and (3) to and from
any other third-party agencies for such things as retrofitting,
redesign, and maintenance. Defendant did not give plaintiff a
written offer of employment. In December 2004, Craig, who was in
Florida at the time, terminated plaintiff's employment with
defendant by telephone. After that telephone call, plaintiff
filed a workers' compensation claim, alleging an injury that took
place in Nevada.
To his supplemental affidavit, Allum attached numerous
documents, which included the following: (1) Allum's memorandum
describing plaintiff's duties for 2003; (2) a schematic showing
the 2004 tour schedule; (3) the 2004 tour schedule followed by
plaintiff, including the mileage between sites; (4) a January 22,
- 5 - 2001, receipt for the airline ticket purchased by defendant for
plaintiff's air travel from Champaign to San Diego, California;
(5) a receipt for a hotel room in Vista, California, for plain-
tiff for lodging in January 2001; (6) plaintiff's original W-4
form; (7) a "personal file" document completed by plaintiff in
California on January 25, 2001; and (8) a copy of the payroll
register showing plaintiff's salary beginning with the January
23, 2001, through February 5, 2001, pay period. Allum also
stated that, excluding driving time, plaintiff only spent 15 days
in Illinois during the 2004 season. Additionally, defendant did
not allow plaintiff to perform maintenance or repair work on any
vehicle on defendant's behalf. Last, if a vehicle was stored at
plaintiff's residence, it was for plaintiff's personal conve-
nience. If a vehicle needed to be stored for any lengthy period
of time, it was to be stored at the Indiana facility.
On January 26, 2010, the trial court held a hearing on
defendant's motion to dismiss. At the hearing, the parties'
attorneys argued the motion based on the materials presented with
their respective memoranda. The court did not hear any evidence.
At the conclusion of the arguments, the court granted defendant's
motion to dismiss, finding (1) the employment contract was not
created in Illinois and (2) a tortious act did not take place in
- 6 - Illinois.
On February 11, 2010, plaintiff filed a notice of
appeal from the dismissal in compliance with Supreme Court Rule
303 (Official Reports Advance Sheet No. 15 (July 16, 2008), R.
303, eff. May 30, 2008), and thus this court has jurisdiction
under Supreme Court Rule 301 (155 Ill. 2d R. 301).
II. ANALYSIS
On appeal, plaintiff challenges the trial court's
finding it lacked personal jurisdiction over defendant.
The plaintiff bears the burden of establishing a basis
for personal jurisdiction over the defendant. Knaus v. Guidry,
389 Ill. App. 3d 804, 813, 906 N.E.2d 644, 652 (2009). Once the
plaintiff meets that burden, the burden then shifts to the
defendant to demonstrate why the assertion of jurisdiction would
be unreasonable. Flanders v. California Coastal Communities,
Inc., 356 Ill. App. 3d 1113, 1117, 828 N.E.2d 793, 797 (2005).
In determining whether a particular defendant falls subject to
the jurisdiction of this state, the court must first decide
whether the plaintiff "established a prima facie case of juris-
diction through the untraversed pleadings, documents, and affida-
vits." Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652. In
making that decision, the court must also accept as true any
- 7 - facts alleged in the defendant's affidavits unless the plain-
tiff's affidavits contradicted them, in which case the facts in
the plaintiff's affidavits prevail. Keller v. Henderson, 359
Ill. App. 3d 605, 611, 834 N.E.2d 930, 934 (2005). "If jurisdic-
tional facts remain in controversy, then the court must conduct a
hearing to resolve those disputes." Knaus, 389 Ill. App. 3d at
813, 906 N.E.2d at 652. Where, as in this case, the trial court
decides the matter on documentary evidence alone, we review that
decision de novo. Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at
652.
Illinois' long-arm statute governs the ability of
Illinois courts to exercise jurisdiction over nonresidents.
Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652. Plaintiff
cites the traditional two-step analysis for determining personal
jurisdiction, which first considered whether jurisdiction was
proper under the long-arm statute's specific language and then
whether the exercise of jurisdiction complied with due-process
principles. Knaus, 389 Ill. App. 3d at 813, 906 N.E.2d at 652.
However, the long-arm statute now contains a provision that
permits an Illinois court to "exercise jurisdiction on any other
basis now or hereafter permitted by the Illinois Constitution and
the Constitution of the United States." 735 ILCS 5/2-209(c)
- 8 - (West 2008). Thus, "'if the contacts between a defendant and
Illinois are sufficient to satisfy both federal and state due[-]
process concerns, the requirements of Illinois' long-arm statute
have been met, and no other inquiry is necessary.'" Knaus, 389
Ill. App. 3d at 814, 906 N.E.2d at 653, quoting Kostal v. Pinkus
Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 387, 827
N.E.2d 1031, 1036 (2005). Accordingly, a court's consideration
of whether the defendant performed any of the acts enumerated in
the long-arm statute is now "'wholly unnecessary.'" Kostal, 357
Ill. App. 3d at 387, 827 N.E.2d at 1036, quoting Dehmlow v.
Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992).
Additionally, we note "the due[-]process protections
arising from the United States and Illinois Constitutions are not
identical and must be analyzed separately." Knaus, 389 Ill. App.
3d at 814, 906 N.E.2d at 653. Thus, our personal-jurisdiction
analysis will focus only on whether plaintiff has demonstrated
both the federal and Illinois due-process requirements have been
met in this case. See Keller, 359 Ill. App. 3d at 612, 834
N.E.2d at 935.
A. Federal Due Process
"To satisfy federal due[-]process requirements, a
nonresident defendant must have sufficient minimum contacts with
- 9 - the forum state so that the exercise of jurisdiction does not
offend '"traditional notions of fair play and substantial jus-
tice." [Citation.]'" Compass Environmental, Inc. v. Polu Kai
Services, L.L.C., 379 Ill. App. 3d 549, 557-58, 882 N.E.2d 1149,
1158 (2008), quoting International Shoe Co. v. Washington, 326
U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945).
"Thus, our analysis must focus on two factors: (1) the defen-
dant's contacts with Illinois and (2) the fairness or reasonable-
ness of exercising personal jurisdiction over the defendant."
W.R. Grace & Co. v. CSR Ltd., 279 Ill. App. 3d 1043, 1047, 666
N.E.2d 8, 10 (1996).
1. Minimum Contacts
The "minimum contacts" required for personal jurisdic-
tion differ depending on the type of jurisdiction sought.
Keller, 359 Ill. App. 3d at 613, 834 N.E.2d at 936. Under the
federal due-process clause, jurisdiction over a nonresident
defendant may be based upon "'general' or 'specific' jurisdic-
tion." Knaus, 389 Ill. App. 3d at 814, 906 N.E.2d at 653. The
difference in the two types of jurisdiction has been explained as
follows:
"While 'general jurisdiction,' for personal
- 10 - jurisdiction purposes, applies to suits nei-
ther arising out of nor related to a nonresi-
dent defendant's contacts with the forum, and
is permitted only where the defendant has
continuous and systematic general business
contacts with the forum, 'specific jurisdic-
tion' refers to personal jurisdiction in a
suit arising out of or related to a defen-
dant's contacts with the forum." Borden
Chemicals & Plastics, L.P. v. Zehnder, 312
Ill. App. 3d 35, 41, 726 N.E.2d 73, 78-79
(2000).
In this case, plaintiff asserts Illinois has both general and
specific personal jurisdiction over defendant.
a. General Jurisdiction
As stated, for a court to obtain general jurisdiction
over a nonresident defendant, the defendant must have had "con-
tinuous and systematic general business contacts with the forum."
Zehnder, 312 Ill. App. 3d at 41, 726 N.E.2d at 78-79. That
threshold is high. Tamburo v. Dworkin, 601 F.3d 693, 701 (7th
Cir. 2010). The defendant's "contacts must be sufficiently
extensive and pervasive to approximate physical presence."
- 11 - Tamburo, 601 F.3d at 701. Moreover, "it has been generally
recognized that the casual presence of the corporate agent or
even his conduct of single or isolated items of activities in a
state in the corporation's behalf are not enough to subject it to
suit on causes of action unconnected with the activities there."
International Shoe Co., 326 U.S. at 317, 90 L. Ed. at 102-03, 66
S. Ct. at 159. In determining whether general jurisdiction
exists, federal courts have examined the following factors:
"(1) whether defendants maintain offices or
employees in Illinois; (2) whether defendants
send agents into Illinois to conduct busi-
ness; (3) whether defendants have designated
an agent for service of process in Illinois;
(4) whether defendants advertise or solicit
business in Illinois; and (5) the extent to
which defendants conduct business in Illi-
nois." Richter v. INSTAR Enterprises Inter-
national, Inc., 594 F. Supp. 2d 1000, 1006
(N.D. Ill. 2009).
While this court is not bound by the decisions of the lower
federal courts (Hinterlong v. Baldwin, 308 Ill. App. 3d 441, 452,
720 N.E.2d 315, 323 (1999)), we agree with the federal court's
- 12 - listing of the factors suggested by the United States Supreme
Court in Helicopteros Nacionales de Colombia, S. A. v. Hall, 466
U.S. 408, 416, 80 L. Ed. 2d 404, 412, 104 S. Ct. 1868, 1873
(1984).
In this case, plaintiff's affidavit and defendant's
uncontradicted affidavits show defendant did not maintain an
office in Illinois and only had its employees in Illinois for
three races, each of which lasted five to six days. Moreover,
plaintiff does not allege defendant (1) had an agent for service
of process in Illinois or (2) advertised or solicited business in
Illinois. Additionally, while plaintiff was employed, defendant
had a crew, including plaintiff, traveling across the country
from event to event from February 1 to November 30 each year, of
which 18 days at most were spent in Illinois. Thus, defendant
did not conduct much business in Illinois.
Plaintiff cites no authority that employing a resident
of a state and giving the employee work assignments in his home
state is more than casual presence in that State. Especially
when the employee is not in that home state for nine plus months
of the year. Defendant's limited contacts with Illinois are not
near physical presence in this state.
Accordingly, we find plaintiff failed to state a prima
- 13 - facie case of general personal jurisdiction as such jurisdiction
does not comport with federal due process.
b. Specific Jurisdiction
Plaintiff also contends Illinois has specific personal
jurisdiction over defendant.
With specific jurisdiction, a nonresident defendant has
minimum contacts with the forum state when "the defendant has
'purposefully directed' his activities at residents of the forum,
[citation], and the litigation results from alleged injuries that
'arise out of or relate to' those activities, [citation]."
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d
528, 541, 105 S. Ct. 2174, 2182 (1985). Regarding tort actions,
the state in which the injury occurs is the state in which the
tort occurs, and one who commits a tort in a state that is not
its resident state should still be amenable to suit there.
Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club
Ltd. Partnership, 34 F.3d 410, 412 (7th Cir. 1994), citing Calder
v. Jones, 465 U.S. 783, 790, 79 L. Ed. 2d 804, 812-13, 104 S. Ct.
1482, 1487 (1984) (holding the state where the victim of the
defendant's defamation lived had jurisdiction over the victim's
defamation suit). Moreover, "[t]he Seventh Circuit has repeat-
edly held that tortfeasors must expect to be haled into Illinois
- 14 - courts for torts where the injury took place there." ABN AMRO,
Inc. v. Capital International Ltd., 595 F. Supp. 2d 805, 828
(N.D. Ill. 2008), citing Janmark, Inc. v. Reidy, 132 F.3d 1200,
1202 (7th Cir. 1997).
Here, plaintiff has alleged the tort of retaliatory
discharge, which has the following elements: (1) the employer
discharged the plaintiff, (2) the discharge was in retaliation
for the plaintiff's activities, and (3) the discharge violated a
clear mandate of public policy. Webber v. Wight & Co., 368 Ill.
App. 3d 1007, 1021, 858 N.E.2d 579, 592 (2006). In the employ-
ment context, "discharge" means "the release, dismissal, or
termination of an employee." Welsh v. Commonwealth Edison Co.,
306 Ill. App. 3d 148, 153, 713 N.E.2d 679, 683 (1999). "[O]ur
supreme court has not expanded the tort of retaliatory discharge
to encompass any behavior other than actual termination of
employment." Welsh, 306 Ill. App. 3d at 153, 713 N.E.2d at 683.
In this case, the facts are uncontested that defen-
dant's agent was in Florida when he telephoned plaintiff, who was
at his Illinois residence, and told plaintiff he was no longer
employed. Defendant's affidavits do not state where its agents
made the decision to terminate plaintiff. Based on the aforemen-
tioned facts, plaintiff asserts his injury occurred in Illinois
- 15 - because his discharge was not final and effective until defendant
communicated it to him. Plaintiff contends the termination of an
employee is analogous to contract formation where the contract is
not formed until the acceptance is communicated to the party
making the offer. Conversely, defendant contends the discharge
occurred in California because the prominent action in discharg-
ing an employee is the determination the employee will no longer
have employment with the company. Neither party cites any case
law regarding where an injury occurs with the tort of retaliatory
discharge. This issue appears to be a matter of first impression
in Illinois.
While courts have not specifically addressed the place
of injury for a retaliatory-discharge action in the context of
specific personal jurisdiction, the issue also arises in analyz-
ing choice of law. For such an analysis, the most-significant-
relationship test is used. Safeco Insurance Co. v. Jelen, 381
Ill. App. 3d 576, 579, 886 N.E.2d 555, 558 (2008). Under that
test, courts consider, inter alia, where the injury occurred and
where the conduct causing the injury occurred. Safeco, 381 Ill.
App. 3d at 580, 886 N.E.2d at 558. Illinois courts have not
addressed where the injury occurred in a retaliatory-discharge
action in the context of choice of law, and thus we look to case
- 16 - law from other jurisdictions. See Kostal, 357 Ill. App. 3d at
395, 827 N.E.2d at 1043 (noting that, while not binding, deci-
sions from other jurisdictions constitute persuasive authority
and are entitled to respect).
The Seventh Circuit analyzed the location of the injury
in a retaliatory-discharge action where the defendant's world
headquarters was located in Illinois and the plaintiff, who was a
Virginia resident at the time, worked at a plant in Alabama.
French v. Beatrice Foods Co., 854 F.2d 964, 965 (7th Cir. 1988).
The court rejected the plaintiff's argument his injury occurred
at the defendant's headquarters where he was informed two months
before his termination "there would be no other position for him"
and concluded "[t]he place of injury (the loss of [the plain-
tiff]'s job) was Alabama." French, 854 F.2d at 965-66.
The Fourth Circuit has addressed the location of the
injury in a wrongful-discharge suit and found the plaintiff's
injury was his termination, which occurred in Maryland because
that was where plaintiff had his office and where his dismissal
was communicated to him. Milton v. IIT Research Institute, 138
F.3d 519, 522 (4th Cir. 1998).
In Ashmore v. Northeast Petroleum Division of Cargill,
Inc., 843 F. Supp. 759, 773 (D. Me. 1994), the plaintiff worked
- 17 - out of an office in Maine, traveled to several other states in
the area for work, and met with his supervisors in several
states. Defendant had headquarters in Massachusetts and that is
where plaintiff was told his employment was terminated. Ashmore,
843 F. Supp. at 773. With regard to plaintiff's wrongful termi-
nation case, the court found the place the injury occurred was
Massachusetts, where Ashmore's employment was terminated.
Ashmore, 843 F. Supp. at 774.
The aforementioned cases focus on where the plaintiff
was located at the time of termination and not where the
defendant made the decision to terminate the plaintiff. The
decision to terminate the employee is the conduct that caused the
injury, the location of which is a separate consideration. Here,
plaintiff was at his residence in Illinois when he received word
of his termination. Accordingly, we agree with plaintiff that
his injury occurred in Illinois. Moreover, we note it was
foreseeable plaintiff would receive the call in Illinois as the
racing season was over and plaintiff resided in Illinois. Thus,
defendant should have "reasonably anticipate[d] being haled into
court" in Illinois. World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297, 62 L. Ed. 2d 490, 501, 100 S. Ct. 559, 567 (1980).
Since the tort occurred in Illinois, we find plaintiff
- 18 - has stated minimum contacts for establishing specific personal
jurisdiction.
2. Reasonableness
In addition to establishing defendant's minimum
contacts with Illinois, plaintiff had to show the reasonableness
of Illinois exercising personal jurisdiction over defendant to
comply with federal due process. See W.R. Grace & Co., 279 Ill.
App. 3d at 1047, 666 N.E.2d at 10. When determining the
reasonableness of requiring a nonresident defendant to litigate
in the forum State, courts consider the following: (1) the
burden on the defendant; (2) the forum State's interest in
resolving the dispute; (3) the plaintiff's interest in obtaining
relief; and (4) the interest of several States, including the
forum State, in the efficient judicial resolution of the dispute
and the advancement of substantive social policies. Zazove v.
Pelikan, Inc., 326 Ill. App. 3d 798, 808, 761 N.E.2d 256, 264
(2001), citing Asahi Metal Industry Co. v. Superior Court of
California, 480 U.S. 102, 112-15, 94 L. Ed. 2d 92, 104-06, 107 S.
Ct. 1026, 1032-33 (1987).
Here, the burden on defendant is not significant as
defendant already travels to Illinois for two races and has an
office in neighboring Indiana. Moreover, plaintiff was an
- 19 - Illinois resident, performed some of his work for defendant in
Illinois, and asserts his termination was in violation of the
public policy of Illinois as set forth in the Workers'
Compensation Act (820 ILCS 305/1 through 30 (West 2008)). Thus,
Illinois has an interest in the resolution of this suit.
Plaintiff sought relief in his home state, from which he was
based when he was not on the road and where he received word of
his termination. As stated, plaintiff has alleged it is the
public policy of Illinois that is at issue in this case. Since
plaintiff is an Illinois resident and Illinois has a significant
interest in the lawsuit, personal jurisdiction in Illinois is
reasonable.
B. Illinois Due Process
Last, personal jurisdiction over defendant must comport
with the due-process provision of the Illinois Constitution.
Under that provision, a court may exercise jurisdiction "only
when it is fair, just, and reasonable to require a nonresident
defendant to defend an action in Illinois, considering the
quality and nature of the defendant's acts which occur in
Illinois or which affect interests located in Illinois." Rollins
v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990).
Here, defendant hired an Illinois resident,
- 20 - communicated with plaintiff at his Illinois residence, and had
defendant work in Illinois for around 15 days a year. Moreover,
plaintiff has raised a retaliatory-discharge claim, for which we
have found the injury occurred in Illinois, and plaintiff's
complaint alleges a violation of Illinois public policy.
Additionally, plaintiff filed his workers' compensation claim in
Illinois. Thus, plaintiff's complaint and affidavit have
provided sufficient facts showing defendant's acts affected
Illinois' interests, and thus personal jurisdiction over
defendant is fair, just, and reasonable.
Since specific personal jurisdiction over defendant in
this case comports with both federal and Illinois due process,
plaintiff has stated a prima facie case. While defendant has
contested some of the facts asserted by plaintiff, the facts
relied on by this court in finding specific personal jurisdiction
are not contested by defendant. Thus, an evidentiary hearing is
not warranted, and the trial court has personal jurisdiction over
defendant. Accordingly, the trial court erred by dismissing
plaintiff's cause of action.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
dismissal of plaintiff's retaliatory-discharge complaint and
- 21 - remand for further proceedings.
Reversed and remanded with directions.
MYERSCOUGH, P.J., and STEIGMANN, J., concur.
- 22 -