[Cite as Collier v. Bayless, 2018-Ohio-3922.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
SANDRA L. COLLIER : : Plaintiff-Appellant : Appellate Case No. 27958 : v. : Trial Court Case No. 2017-DV-01288 : GERALD D. BAYLESS : (Domestic Relations Appeal) : Defendant-Appellee : :
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OPINION
Rendered on the 28th day of September, 2018.
JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio 45458 Attorney for Plaintiff-Appellant
ELLEN C. WEPRIN, Atty. Reg. No. 0042354, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellee
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DONOVAN, J.
{¶ 1} Plaintiff-appellant Sandra L. Collier (hereinafter referred to as “Mother”)
appeals a decision of the Montgomery County Court of Common Pleas, Domestic
Relations Division, which overruled her objections to the magistrate’s decision, dismissed
her petition for a domestic violence civil protection order (CPO), and vacated the ex parte
domestic violence CPO. Mother filed a timely notice of appeal with this Court on April 4,
2018.
{¶ 2} Initially, we note that Mother and defendant-appellee Gerald D. Bayless
(hereinafter referred to as “Father”) are the parents of G., age 10, the protected party in
this case. The record establishes that Mother and Father have a shared parenting plan
for G. ordered by the Montgomery County Juvenile Court. The shared parenting plan
designates Father as the residential parent for school purposes and provides Mother with
standard parenting time on Wednesday evenings and every other weekend.
{¶ 3} The incident which forms the basis for the instant appeal occurred in the early
evening of Wednesday, September 27, 2017, when Father was helping G. study at a
public library. At approximately 5:30 p.m., Father hit G. in the face with the back of his
right hand. At the domestic violence CPO hearing, Father testified that he “flicked” G. in
the face after G. talked back to him several times after being warned to stop. After the
incident, Father and G. left the library and traveled to a predetermined location to drop off
G. for his midweek visitation with Mother.
{¶ 4} After taking custody of G., Mother testified that she noticed that he had a
“funny look” on his face. Eventually, G. told Mother that Father had hit him in the face.
Mother testified that she observed that G.’s nose was swollen and tender to the touch. -3-
Mother also reported that she observed some dried blood in G.’s nasal cavity. Mother
and G. traveled back to the library, where Mother called the police and reported the
incident. Shortly thereafter, police officers from the City of Dayton arrived and took
statements from Mother and G., who reported that Father had hit G. with his right hand in
the nose area. G. reported to police that his pain level was a ten on a scale of one to ten
(ten being the worst). The officers testified that G.’s nose appeared to be somewhat
swollen, but there was no bleeding or any other observable injury. The officers also
testified that G.’s reported pain level appeared to be rather exaggerated given the limited
extent of his injuries. The officers testified that G. appeared to be sad, but was not crying,
upset, or agitated. We also note that Mother declined any paramedic treatment for G. or
an ambulance to take him to the hospital.
{¶ 5} Later that night, Mother took G. to be treated at Dayton Children’s Hospital.
The record establishes that G. was examined at approximately 10:00 p.m. that night,
approximately four hours after the incident occurred. After the examination, G. was
found to have some generalized nasal swelling, mild tenderness to the tip of his nose, a
miniscule scar on his left nasal septum, and some dried blood in his nasal cavity. Plaintiff’s
Exhibit 1. The examination further revealed that G. had “no septal hematoma, no septal
deviation, no active bleeding.” Id. The examination concluded that G. had suffered a
minor nasal injury and epistaxis (minor nosebleed). We note that Tanya Sheets, the
social worker assigned to the case, testified that Mother stated that the emergency room
physician informed her that G. had a broken nose. However, G.’s medical record from
that night contains no evidence of a broken nose. At the petition hearing, Mother could
not explain why G.’s medical records did not support her assertion that G.’s nose had -4-
been broken.
{¶ 6} On September 28, 2017, Mother filed a petition for a domestic violence CPO
pursuant to R.C. 3113.31 against Father, as well as an ex parte CPO. As result of the
issuance of the ex parte CPO, G. was designated as a protected party on the same day.
A hearing was held before the magistrate on Mother’s domestic violence CPO petition on
the following dates: October 13, 2017; November 2, 2017; and November 3, 2017. In a
decision issued on November 7, 2017, the magistrate recommended that Mother’s
petition for a domestic violence CPO be dismissed and the ex parte CPO be vacated.
{¶ 7} On November 14, 2017, Mother filed objections to the magistrate’s decision.
A transcript of the hearing was filed on January 10, 2018. Thereafter on February 2,
2018, Mother filed supplemental objections to the magistrate’s decision. Father did not
file a response to Mother’s objections. On March 5, 2018, the trial court issued a decision
overruling Mother’s objections and adopting the decision of the magistrate.
{¶ 8} Mother now appeals from this judgment.
{¶ 9} Because they are interrelated, Mother’s first and second assignments of error
will be discussed together as follows:
THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION
FAILING TO CONSIDER THE CHILD’S TESTIFYING UNDER OATH AS
TO THE STRICKING [sic] BY THE FATHER.
BY FAILING TO CONSIDER THAT THE CHILD WAS FOUND TRUTHFUL
AND CONSISTENT BY POLICE OFFICERS AND HOSPITAL LIAISONS.
{¶ 10} In her first and second assignments, Mother essentially argues that the trial -5-
court’s judgment dismissing her petition for a domestic violence CPO and vacating the ex
parte CPO was against the manifest weight of the evidence, because the trial court failed
to take into account the testimony of G., the responding police officers, and hospital
personnel who interviewed G. regarding Father’s conduct.
{¶ 11} The appropriate standard to be employed by the trial court when reviewing
a magistrate's decision is set forth in Quick v. Kwiatkowski, 2d Dist. Montgomery No.
18620, 2001 WL 871406, *3 (Aug. 3, 2001):
Magistrates are neither constitutional nor statutory courts.
Magistrates and their powers are wholly creatures of rules of practice and
procedure promulgated by the Supreme Court. Therefore, magistrates do
not constitute a judicial tribunal independent of the court that appoints them.
Instead, they are adjuncts of their appointing courts, which remain
responsible to critically review and verify the work of the magistrates they
appoint. * * * Civ.R. 53(E)(4)(b) contemplates a de novo review of any
issue of fact or law that a magistrate has determined when an appropriate
objection is timely filed. The trial court may not properly defer to the
magistrate in the exercise of the trial court's de novo review. The
magistrate is a subordinate officer of the trial court, not an independent
officer performing a separate function.
The “abuse of discretion” standard that the trial court applied to
review the decision of its magistrate is an appellate standard of review. It
is applicable to the review performed by a superior court of the judgments
and orders of inferior courts. Inherent in the abuse of discretion standard -6-
are presumptions of validity and correctness, which acknowledge the
independence of the inferior courts by deferring to the particular discretion
they exercise in rendering their decisions. Because its magistrate does not
enjoy that independence, such presumptions are inappropriate to the trial
court's review of a magistrate's decisions. Therefore, a trial court errs
when it applies the abuse of discretion standard of review in ruling on Civ.R.
53(E)(3) objections to the decision of the appointed magistrates * * *.
{¶ 12} In reviewing Mother’s argument, we must be guided by the presumption that
the trial court was best able to view the witnesses and observe their demeanor, gestures,
and voice inflections, and to use these observations in weighing the credibility of the
proffered testimony. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). We must defer to the factual findings of the judge regarding the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. We may not substitute our judgment for that of the trier
of fact. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶ 13} Initially, we note that at the time of the instant proceedings, G. was nine
years old. Therefore, the magistrate held an in camera interview of G. in order to
determine if he was competent to testify. Ultimately, the magistrate found G. competent
and allowed him to testify.
{¶ 14} During his direct testimony, G. testified that Father had hit him in the nose
after he misspelled a word on his reading list from school. G. testified that as a result of
being hit, he started crying, his nose began to bleed, and he immediately went to the
bathroom to attend to his injury. G. further testified that Father had whipped him several -7-
times in the past and had recently grabbed him by the throat and put him up against a
wall. Because of these incidents, G. testified that he was scared of Father.
{¶ 15} As previously stated, Father testified that he “flicked” G. in the face with the
back of his hand because G. was “mouthing off” and had already been warned several
times to stop. Father denied that G. cried after being struck. Father also testified that
he did not observe that G.’s nose was bleeding nor did G. go to the bathroom. Father
testified that he was not trying to hurt G., but only to discipline him for talking back.
{¶ 16} The public library where the incident occurred had video cameras which
were able to record the event. The video clearly depicts Father reaching across the table
and striking G. in his facial area. However, the video contradicts G.’s testimony that he
got up immediately thereafter and went to the bathroom. Rather, the video depicts that,
after being struck by Father, G. remained seated at the table, ostensibly finishing his
homework.
{¶ 17} Father also presented the testimony of Grecia Vaughn, a teacher in Dayton
Public Schools and friend of Father’s through family connections. Vaughn’s daughter is
also in G.’s class at school. Vaughn testified that she and her daughter were present at
the same table at the library when the incident occurred. Vaughn testified that she
observed that G. was repeatedly talking back to Father while the children were studying.
After asking G. to stop “mouthing off” several times, Vaughn testified that Father struck
G. lightly across the face. Vaughn testified that after the incident, the children finished
their homework and got up to leave. Vaughn testified that G. was not bleeding and that
he never got up to go the bathroom. As they were leaving, Vaughn observed that G.
“was dancing going out” of the library after she had complimented him on his basketball -8-
shoes.
{¶ 18} As previously stated, three police officers responded to the scene on the
evening of September 27, 2017. The officers took statements from Mother and G., who
reported that Father had hit G. with his right hand in the nose area. G. reported to police
that his pain level was a ten on a scale of one to ten. The officers testified that G.’s nose
appeared to be somewhat swollen, but there was no bleeding or any other observable
injury. The officers also testified that G. appeared to be sad, but was not crying, upset,
or agitated. Significantly, Mother declined any paramedic treatment for G. or an
ambulance to take him to the hospital.
{¶ 19} Lastly, Mother presented G.’s medical records from Dayton Children’s
Hospital on the night of the incident. Those records established that G. was found to
have to have some generalized nasal swelling, mild tenderness to the tip of his nose, a
miniscule scar on his left nasal septum, and dried blood in his nasal cavity. Furthermore,
the records stated that G. had “no septal hematoma, no septal deviation, no active
bleeding.” The attending physician concluded that G. had suffered a minor nasal injury
and had some dried blood in his nostril.
{¶ 20} In the instant case, it is undisputed that Father struck G. in the nose on
September 27, 2017. On the record before us, we cannot say that the trial court erred
in finding that Father’s conduct did not constitute domestic violence. The record
supports the trial court’s finding that Father’s conduct was consistent with reasonable
parental discipline.
{¶ 21} We addressed the issue of parental discipline and domestic violence in
State v. Thompson, 2d Dist. Miami No. 04CA30, 2006-Ohio-582, wherein we stated the -9-
following:
In State v. Suchomski (1991), 58 Ohio St.3d 74, the Supreme Court
recognized that the domestic violence statute does not prohibit a parent
from properly disciplining his or her child. The only prohibition is that a
parent may not cause “physical harm,” which is defined in R.C. 2901.01 as
“any injury.” “Injury” is defined as the invasion of any legally protected
interest of another. Id.; State v. Adaranijo, 153 Ohio App.3d 266, 2003-Ohio-
3822; State v. Holzwart, 151 Ohio App.3d 417, 2003-Ohio-345.
A child does not have any legally protected interest that is invaded
by proper and reasonable parental discipline. Suchomski, supra.
Therefore, a parent may use physical punishment as a method of discipline
without violating the domestic violence statute as long as the discipline is
proper and reasonable under the circumstances. Adaranijo, supra.
“Proper” and “reasonable” have been defined as “suitable or appropriate”
and “not extreme or excessive.” State v. Hicks (1993), 88 Ohio App .3d 515.
Of course, the nature of any physical injury inflicted or attempted to be
inflicted may be evidence demonstrating that the actor's conduct was not
proper and reasonable parental discipline. State v. Hause (August 6, 1999),
Montgomery App. No. 17614. In Hause, supra, this court observed:
Suchomski, supra, recognizes the right of parents to
control and raise their own children by imposing reasonable
physical discipline to prevent and punish the child's
misconduct. The right of a parent to manage the rearing of a -10-
child is a fundamental liberty interest. Santosky v. Kramer
(1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.
Indeed, that parental right is among those inalienable rights
secured by natural law which Article I, Section 1 of the Ohio
Constitution was intended to protect from infringement by the
police power of the state. Nevertheless, the state has
legitimate interests in the protection and safety of children and
in the reporting of child abuse, which it may employ its police
power to enforce. The parental right and the state's interest
are in a delicate balance.
(Opinion at 6-7).
Whether any particular conduct constitutes proper and reasonable
parental discipline is a question that must be determined from the totality of
all of the relevant facts and circumstances. We are mindful that the
domestic violence laws are meant to protect against abuse, not prohibit
parental discipline, and courts should be slow to intervene between parent
and child in resolving issues of discipline involving minimal physical harm.
Adaranijo, supra. Furthermore, some forms of physical punishment other
than traditional spanking may be proper and reasonable. State v. Hart
(1996), 110 Ohio App.3d 250; Adaranijo, supra.
Id. at ¶ 28-31.
{¶ 22} We note that Ohio law recognizes a parent’s right to administer corporal
punishment. R.C. 2919.22(B) provides in relevant part: -11-
(B) No person shall do any of the following to a child under eighteen years
of age or a mentally or physically handicapped child under twenty-one years
of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child;
(3) Administer corporal punishment or other physical disciplinary measure,
or physically restrain the child in a cruel manner or for a prolonged period,
which punishment, discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious physical harm to the
child;
(4) Repeatedly administer unwarranted disciplinary measures to the child,
when there is a substantial risk that such conduct, if continued, will seriously
impair or retard the child's mental health or development. * * *
{¶ 23} In analyzing the totality of the circumstances, a court should consider the
child's age, the child's behavior leading up to the discipline, the child's response to prior
non-corporal punishment, the location and severity of the punishment, and the parent's
state of mind while administering the punishment. State v. Zielinski, 12th Dist. Warren No.
CA2010-12-121, 2011-Ohio-6535, ¶ 25. The burden is on the defendant to establish
parental discipline as an affirmative defense. State v. Sellers, 12th Dist. Butler No.
CA2011-05-083, 2012-Ohio-676, ¶ 15.
{¶ 24} The totality of the facts and circumstances in the instant case do not indicate
that Father was acting maliciously when he struck G. in the face with the back of his hand.
Father's conduct was provoked by G.'s repeated failure to stop talking back while the -12-
children were studying, which was a reasonable request under the circumstances.
Significantly, the physical punishment administered in this case was limited to the use of
the back of Father’s hand, akin to slapping the child in the face with an open hand, which
we and other courts have approved under some circumstances. Hause, 2d Dist.
Montgomery No. 17614, 1999 WL 959184, *3; Adaranijo, 153 Ohio App.3d 266, 2003-
Ohio-3822, 792 N.E.2d 1138. Finally, we have reviewed the video recording of the
incident at the library and find that it fails to support G.’s version of the events.
{¶ 25} Considering all of the facts and circumstances, we are satisfied that the trial
court’s finding of proper and reasonable parental discipline was supported by the record.
Accordingly, we cannot say that the trial court abused its discretion when it dismissed
Mother’s petition for a domestic violence CPO and vacated the ex parte CPO against
Father.
{¶ 26} Mother’s first and second assignments of error are overruled.
{¶ 27} Mother’s third assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION WHEN
IT ALLOWED THE IN THE TESTIMONY OF THE CHILDREN SERVICES
WORKER THAT WAS BEYOND THE SCOPE OF THE WORKER’S JOB.
{¶ 28} In her third and final assignment, Mother argues that the trial court erred
when it admitted the testimony of Tanya Sheets, a case worker for Montgomery County
Children’s Services. Mother contends that Sheets’s statements regarding the veracity
of G. and Mother constituted expert testimony pursuant to Evid.R. 702. Mother argues
that Sheets was not identified as an expert witness, and was therefore not qualified to
testify in that capacity. Specifically, Mother argues that Sheets was speaking outside -13-
her role as a case worker and “had absolutely no authority to garner this opinion.”
{¶ 29} Sheets was the case worker assigned to investigate the allegations of
domestic violence against Father. During her investigation, Sheets testified that she
interviewed Mother, Father, G., G.’s school staff and nurse, the library staff members, at
least one of the investigating police officers, and staff at Children’s Hospital. As noted
by the trial court, Sheets testified to her general impressions gathered during her
investigation and MCCS’s final determination that Father did not abuse G. Sheets also
testified that she had been made aware that the Montgomery County Prosecutor’s Office
was not pursuing any child abuse charges against Father.
{¶ 30} Upon review, we agree with the trial court and find that Sheets testified in
her capacity as a lay witness, rather than an expert witness. Evid.R. 701 states that “[i]f
the witness is not testifying as an expert, the witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue.” Under Evid.R. 701, lay opinion testimony must
be “rationally based on the perception of the witness. Perception connotes sense: visual,
auditory, olfactory, etc. Thus, opinion testimony under Evid.R. 701 must be based on
firsthand, sensory based knowledge.” Sec. Natl. Bank & Trust Co. v. Reynolds, 2d Dist.
Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 17.
{¶ 31} The trial court has “considerable discretion in admitting the opinion
testimony of lay witnesses.” (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444,
2010-Ohio-5160, 946 N.E.2d 762, ¶ 43 (2d Dist.). An abuse of discretion implies that
the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. -14-
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 32} In the instant case, Sheets was the case worker assigned to investigate the
allegations of domestic violence brought against Father by Mother. As part of her
investigation, Sheets interviewed everyone pertinent to the case, specifically including
Mother, Father, G., G.’s school staff and nurse, the library staff members, at least one of
the investigating police officers, and staff at Children’s Hospital. The information
uncovered by Sheets during her investigation went to the very heart of the domestic
violence allegations made against Father. As the lead case worker, the results of
Sheets’s investigation were directly relevant to the determination made by MCCS whether
G. would remain out of Father’s care. Sheets was not providing expert testimony, but
rather admissible lay testimony based upon her own firsthand observations and
perceptions of the individuals whom she interviewed, especially G. and Mother, and
Father. Based upon Sheets’s investigation and conclusions drawn therefrom, MCCS
decided to allow Father to continue as residential parent.
{¶ 33} However, at one point during Sheets’s testimony, the following exchange
occurred:
Defense Counsel: After you spoke to [G.], what was your
impression?
Plaintiff’s Counsel: We’ll object; there’s been no finding or filing by
Children’s Services. There’s nothing pending.
The Court: I don’t think that’s a requirement. Overruled.
Sheets: So during my conversation with [G.], he would answer
questions differently depending on the topic. So if we were talking about -15-
things he liked to do, things that occurred in school. Any of those things,
he would make contact – eye contact with you, he’d be very engaged in the
conversation.
Any conversation in regards to this incident, that was result of the
referral to Children’s Services, he would not make eye contact with you.
He was not consistent and he would pace.
Defense Counsel: What’s pace?
Sheets: Walk back and forth, look at the floor, look at the ceiling.
He wasn’t – he didn’t have the same kind of conversation.
Defense Counsel: What does that indicate to you as a –
Plaintiff’s Counsel: I’m gonna object.
Trial Court: Overruled.
Sheets: Well, it’s not necessarily that by itself, but that combined with
the statements and the other information we obtained from the investigation.
We believe that [G.] –
Plaintiff’s Counsel: We object to what they believe. There is no
finding, they haven’t filed, and she’s not in a position to make that finding.
It’s got to be her supervisors, etcetera.
Sheets: We believe that he wasn’t being honest.
(Emphasis added.)
{¶ 34} An expert may not offer a direct opinion on whether a child is telling the
truth. State v. Rosas, 2d Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶ 42, citing State -16-
v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), syllabus, overruled in part on
other grounds by State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944.
We find that it was error for the trial court to allow Sheets to testify regarding whether she
believed that G. was being honest with respect to his version of the incident.1 However,
standing alone and in light of the totality of the evidence submitted in the instant case, we
cannot say that the trial court’s error in allowing to Sheets to opine regarding G.’s honesty
was anything other than harmless error.
{¶ 35} Ohio courts have held the following:
A Boston violation may be harmless error beyond a reasonable doubt
when considering certain factors. Those factors include “(1) if the victim
testifies and is subject to cross-examination, (2) the state introduces
substantial medical evidence of sexual2 [or other] abuse, and (3) the expert
or lay person's opinion testimony is cumulative to other evidence.” State v.
Palmer, 9th Dist. Medina No. 2323–M, * * * 1995 WL 48442 (Feb. 8, 1995);
State v. Lewis, 9th Dist. Summit No. 14632, * * * 1991 WL 156559 (Aug. 14,
1991); State v. Djuric, 8th Dist. Cuyahoga No. 87745, 2007-Ohio-413, ¶ 44.
However, a finding of harmless error is not justified if the case is a
“credibility contest” between the victim and the defendant. State v. Burrell,
89 Ohio App.3d 737, 746, 627 N.E.2d 605 (9th Dist.1993). Thus, in order
1 We note that, although Sheets was testifying in a lay witness capacity and not as an expert witness, the Boston rule still applies, and she was prohibited from testifying regarding whether she believed G. was being honest with respect to his version of the incident. 2 We recognize that this factor is not relevant here. -17-
to find a Boston violation harmless, some independent evidence must exist
when it is a credibility contest between the defendant and the victim. State
v. West, 8th Dist. Cuyahoga No. 90198, 2008-Ohio-5249 [2008 WL
4516673].
State v. Eisermann, 8th Dist. Cuyahoga No. 100967, 2015-Ohio-591, ¶ 63–64.
{¶ 36} Unlike in Boston, the victim, G., testified in this case as did his mother.
Accordingly, the child was subject to cross-examination and the trial court was able to
independently ascertain the credibility of the child. The court was also able to view a video
of the incident. See generally State v. Benjamin, 8th Dist. Cuyahoga No. 87364, 2006-
Ohio-5330. Significantly, this was not merely a credibility contest between Father and
G., as Father acknowledged striking the child. Rather, it was a matter of what constituted
reasonable parental discipline versus domestic violence. Here, the magistrate viewed
the video evidence, heard G.’s answers, witnessed his demeanor, and judged his
credibility completely independently of Sheets’s testimony concerning the child’s veracity.
{¶ 37} Essentially, Sheets did not provide any expert opinion as to G.’s accounting
of the incident. Rather, Sheets noted that G.’s responses to questions lacked
consistency, and he avoided eye contact only when relating this incident. Her interview
with G. led her to conclude that G.’s safety was not in danger. This, coupled with her lay
opinion that G. was being dishonest, was admissible under Evid.R. 701. With the
exception of her testimony regarding G.’s veracity, the admission of which was harmless
error on this record, the trial court did not err when it admitted the balance of Sheets’s
testimony.
{¶ 38} Mother’s third and final assignment of error is overruled. -18-
{¶ 39} All of Mother’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
FROELICH, J. and HALL, J., concur.
Copies mailed to:
James R. Kirkland Ellen C. Weprin Hon. Timothy D. Wood