[Cite as Durfor v. W. Mansfield Conservation Club, 2022-Ohio-416.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
CRISTEN DURFOR, ET AL., CASE NO. 8-21-26 PLAINTIFFS-APPELLANTS,
v.
WEST MANSFIELD CONSERVATION CLUB, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Logan County Common Pleas Court Trial Court No. CV 19 06 0201
Judgment Affirmed
Date of Decision: February 14, 2022
APPEARANCES:
Daniel N. Abraham for Appellants
Dalton J. Smith for Appellee, West Mansfield Conservation Club Case No. 8-21-26
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Cristen L. Durfor (“Durfor”)—individually and as
parent, natural guardian, and next friend of her minor child, J.S.—appeals the
judgment of the Logan County Court of Common Pleas, alleging that the trial court
erred in granting summary judgment for the Defendant-Appellee West Mansfield
Conservation Club (“the WMCC”). For the reasons set forth below, the judgment
of the trial court is affirmed.
Facts and Procedural History
{¶2} For a number of years, the WMCC has allowed the community to use
its property for an annual Fourth of July celebration. Kerns Depo. 13, 14, 19. Doc.
139. The WMCC does not charge a fee for members of the public to enter the
premises; enter into a contract with the Village of West Mansfield; or receive
compensation for opening their premises. Doc. 139. See Durfor Depo. 46. At the
2017 celebration, the WMCC made money from a fish fry but did not require
attendees to purchase a meal to participate in the event. Doc. 139.
{¶3} The WMCC does not organize this event but describes this celebration
as “a community effort.” Doc. 139. Each year, members of the community bring
and set up games and activities on the WMCC property for the attendees to enjoy.
Kerns Depo. 14-15. For this reason, the event has had different activities every year.
Id. at 16. On July 3, 2017, the mayor of West Mansfield, Kimberly K. Kerns
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(“Kimberly”), and her husband, Danny R. Kerns (collectively “the Kerns”), brought
a dunk tank onto the WMCC’s premises for use at the celebration. Id. at 42, 50.
{¶4} On July 4, 2017, Durfor and her daughter, J.S., went to this event. J.S.
Depo. 17. Durfor Depo. 12. They had never attended one of the Fourth of July
celebrations at the WMCC and had learned about this event through flyers that had
been hung up around town. Durfor Depo. 14. In the morning, Durfor and J.S.
participated in a softball game at the WMCC before returning to their home for a
cookout. J.S. Depo. 37. Durfor Depo. 17.
{¶5} In the afternoon, J.S. returned to the WMCC with several other people.
J.S. Depo. 38, 41. Durfor remained at her house to clean up after the cookout.
Durfor Depo. 18. J.S. Depo. 54. At the WMCC, J.S. saw a number of kids using
the dunk tank and decided to participate. J.S. Depo. 38, 41. She climbed up a ladder
to the top of the tank and then got dunked. Id. at 44. She then got out of the dunk
tank and got onto the ladder to climb down to the ground. Id. J.S. affirmed that she
was “facing outward” as she went down the ladder. Id. at 45.
{¶6} As she climbed down, J.S. slipped and “landed on an exposed piece of
metal believed to be a hitch or leveling crank handle and sustained perineal trauma
* * *.” Doc. 1. See J.S. Depo. 45, 49-50. After the fall, J.S. blacked out. J.S. Depo.
49. When she regained consciousness, she crawled over to someone and asked them
to call 911. Id. at 50-51. An ambulance arrived at the WMCC and transported J.S.
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to the hospital. Durfor Depo. 24-25. On July 5, 2017, J.S. underwent a surgical
procedure to address the injury that she had sustained from the fall. Doc. 1.
{¶7} On June 27, 2019, Durfor filed a complaint that named the WMCC and
the Kerns as defendants. Doc. 1. This complaint raised two claims of negligence
and one claim of premises liability. Doc. 1. On November 23, 2020, the WMCC
filed a motion for summary judgment. Doc. 139. The WMCC argued (1) that it
only had a duty not to cause willful or wanton injury to J.S. because she was a
licensee and (2) that it had recreational user immunity under R.C. 1533.181. Doc.
139.
{¶8} On February 1, 2021, the trial court granted the WMCC’s motion for
summary judgment, finding that J.S. was a licensee on the WMCC’s premises and
that the WMCC had immunity under R.C. 1533.181. Doc. 166. On May 3, 2021,
a notice was filed that indicated that Durfor and the Kerns had reached a settlement
agreement. Doc. 180. Durfor then filed a notice of voluntary dismissal for the
Kerns. Doc. 186. On July 6, 2021, the trial court issued a judgment entry, stating
that all claims against all parties had been resolved through the settlement agreement
and the grant of the WMCC’s motion for summary judgment. Doc. 187.
{¶9} On August 2, 2021, Durfor filed her notice of appeal. Doc. 195. On
appeal, she raises the following two assignments of error:
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First Assignment of Error
The trial court erred when it held that [J.S.] was a licensee on the premises owned by WMCC.
Second Assignment of Error
The trial court erred when it found WMCC immune from liability under R.C. 1533.181(A) when [J.S.] was not a recreational user.
{¶10} Durfor argues J.S. was an invitee on the WMCC’s premises and that
the trial court erred in determining that she was a licensee. She then asserts that the
trial court erred in granting summary judgment to the WMCC on this basis.
Legal Standard
{¶11} “Appellate courts consider a summary judgment order under a de novo
standard of review.” Schmidt Machine Company v. Swetland, 3d Dist. Wyandot
No. 16-20-07, 2021-Ohio-1236, ¶ 23, citing James B. Nutter & Co. v. Estate of
Neifer, 3d Dist. Hancock No. 5-16-20, 2016-Ohio-7641, ¶ 5. Under Civ.R. 56,
[s]ummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law * * *. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.
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Civ.R. 56(C). Accordingly, summary judgment is to be granted
only when it is clear ‘(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.’
Beair v. Management & Training Corp., 3d Dist. Marion No. 9-21-07, 2021-Ohio-
4110, ¶ 15, quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,
375 N.E.2d 46, 47 (1978).
{¶12} Initially, “[t]he party moving for summary judgment bears the burden
of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law.” Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d
367, 370, 1998-Ohio-389, 696 N.E.2d 201, 204 (1998). “In doing so, the moving
party is not required to produce any affirmative evidence, but must identify those
portions of the record which affirmatively support his argument.” Neal v. Treglia,
2019-Ohio-3609, 144 N.E.3d 1045, ¶ 12 (3d Dist.), quoting Carnes v. Siferd, 3d
Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13.
{¶13} If the moving party carries this initial burden, “[t]he burden then shifts
to the party opposing the summary judgment.” Bates Recycling, Inc. v. Conaway,
2018-Ohio-5056, 126 N.E.3d 341, ¶ 11 (3d Dist.), quoting Middleton v. Holbrook,
3d Dist. Marion No. 9-15-47, 2016-Ohio-3387, ¶ 8. “In order to defeat summary
judgment, the nonmoving party may not rely on mere denials but ‘must set forth
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specific facts showing that there is a genuine issue for trial.’” Byrd v. Smith, 110
Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶14} “[B]ecause summary judgment is a procedural device to terminate
litigation, it must be awarded with caution.” Williams v. ALPLA, Inc., 2017-Ohio-
4217, 92 N.E.3d 256 (3d Dist.), quoting Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359, 1992-Ohio-95, 604 N.E.2d 138 (1992). “The court must thus
construe all evidence and resolve all doubts in favor of the non-moving party * *
*.” Webster v. Shaw, 2016-Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.).
{¶15} Further, “[t]o prevail in a negligence action, a plaintiff must
demonstrate that (1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, and (3) the defendant’s breach proximately caused
the plaintiff to be injured.” Moyer v. McClelland J. Brown Living Trust, 2019-Ohio-
825, 124 N.E.3d 853, ¶ 6 (3d Dist.), quoting Lang v. Holly Hill Motel, Inc., 122
Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10.
{¶16} In negligence cases alleging premises liability, “the status of the
person who enters upon the land of another * * * define[s] the scope of the legal
duty that the landowner owes the entrant.” Gladon v. Greater Cleveland Regional
Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287, 292 (1996).
“Under Ohio law, an owner’s duty of care depends on whether the injured person is
an invitee, a licensee, or a trespasser.” Heffern v. Univ. of Cincinnati Hosp., 142
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Ohio App.3d 44, 52, 753 N.E.2d 951, 957 (10th Dist. 2001). See Carnes, supra, at
¶ 14.
{¶17} A trespasser is “[o]ne who enters upon the land of another without
invitation or permission purely for his own purposes or convenience * * *.” Ard v.
Fawley, 135 Ohio App.3d 566, 571, 1999-Ohio-921, 735 N.E.2d 14, 17 (3d Dist.),
citing McKinney v. Hartz & Restle Realtors, Inc., 31 Ohio St.3d 244, 246, 510
N.E.2d 386, 388-389 (1987). As a general matter, “a landowner owes no duty to a
* * * trespasser except to refrain from willful, wanton, or reckless conduct that is
likely to injure him.” Williams v. Cook, 132 Ohio App.3d 444, 449, 725 N.E.2d
339, 343 (3d Dist. 1999), citing Gladon, supra, at 317.
{¶18} A licensee is one “who enters the premises of another by permission
or acquiescence, for his own pleasure or benefit, and not by invitation.” Williams
at 449, quoting Provencher v. Ohio Dept. of Transp., 49 Ohio St.3d 265, 266, 551
N.E.2d 1257, 1258 (1990). “A licensee takes his license subject to its attendant
perils and risks.” Light v. Ohio University, 28 Ohio St.3d 66, 68 502 N.E.2d 611,
613 (1986). As with the trespasser, a landowner generally “owes the licensee no
duty except to refrain from wantonly or willfully causing injury” and “is not liable
for ordinary negligence * * *.” Id.
{¶19} An invitee is one “who rightfully come[s] upon the premises of
another by invitation, express or implied, for some purpose which is beneficial to
the owner.” Moyer, supra, at ¶ 6 quoting Gladon, supra, at 315. Thus, “[t]he
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distinction between an invitee and a licensee is dependent on whether the guest
enters the land for personal benefit or for the benefit of the owner.” Heffern, supra,
at 52. In contrast to the duty owed to a trespasser or a licensee, “[a] landowner owes
a duty to an invitee to exercise ordinary care for the invitee’s safety and protection.”
Gladon, supra, at 317.
{¶20} “The economic-or tangible-benefit test has long been recognized by
the Supreme Court of Ohio to distinguish the status of an invitee from that of a
licensee.” Bilodeau v. Jordan, 1st Dist. Hamilton No. C-020496, 2003-Ohio-1540,
¶ 10. Under this test, “in order to prove that he is an invitee, a plaintiff must establish
that the premises owner received a tangible or economic benefit from his visit.”
Heffern, supra, at 52. “[T]he type of benefit conferred by an invitee upon the owner
or occupier of land must take a tangible or economic form.” (Emphasis sic.) Id.,
citing Provencher, supra, at 1258-1260. Accordingly, “[a]n invitation alone does
not bestow the status of an invitee.” Sutyak v. Warren-Trumbull County Public
Library, 11th Dist. Trumbull No. 92-T-4754, 1993 WL 150488, *2 (Mar. 26, 1993),
citing Provencher, supra, at 1259 (rejecting the public invitee standard that does not
“require[] that some type of benefit * * * be conferred on the owner or occupier
before a visitor can be considered an invitee”).
Legal Analysis
{¶21} In its judgment entry, the trial court determined that J.S. “was a
licensee, not a business invitee.” Doc. 166. Against this conclusion, Dufor argues
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that J.S. was not a licensee because (1) the event at the WMCC was advertised by
flyers that were posted around town; (2) the WMCC made some money from a fish
fry that was held at the event; and (3) the WMCC stood to benefit from people
seeing their premises. We will consider each of her three main arguments in turn.
{¶22} First, Durfor testified that she had become aware of the July Fourth
Celebration from flyers that had been posted around the village. Durfor Depo. 14.
Kimberly had also seen these flyers. Kerns Depo. 22. However, in an affidavit, the
President of the WMCC, Jim Shelton (“Shelton”), affirmed that the WMCC did not
“create flyers for the event.” Doc. 139, Affidavit. Further, the record contains no
information that establishes the source of these flyers as neither Durfor nor
Kimberly were able to identify who had produced or circulated these flyers. Durfor
Depo. 14. Kerns Depo. 142.
{¶23} Kimberly explained that she was the mayor of West Mansfield during
the Fourth of July Celebration in 2017 and that she did not consult with anyone from
the WMCC about logistics, such as the timing of or activities at the event. Kerns
Depo. 11, 110-111. She was not aware of any “formal request” that had been made
to use the WMCC’s premises for the celebration and said that the event happens
“just from reputation it’s always been July 4th at the club.” Id. at 108.
{¶24} Kimberly also stated that “[t]here’s really no one in charge” of the
celebration and that the community puts this event together. Kerns Depo. 108. She
said that people in the community would mention the Fourth of July Celebration in
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the different area organizations in which they were members. Id. at 110. For
example, she mentioned seeing a member of her church stand up and invite the
congregants. Id. Kimberly also observed a similar invitation at a Lions Club
breakfast. Id.
{¶25} Durfor asserts that the flyers constituted an invitation from the WMCC
to the public. Appellant’s Brief, 9-10. However, she has not established any
connection between the WMCC and the flyers. Further, we also note that, in Honek
v. Chidsey, the Eighth District considered a situation in which an attendee was
injured at a free, outdoor concert that was held on city property. Honek v. Chidsey,
2021-Ohio-3816, --- N.E.3d ---, ¶ 25, 45 (8th Dist.). Even though “the city
promoted the event to the public to attend the city’s summer concert series,” the
Eighth District concluded that the injured party was a licensee because there was
“no evidence that the city obtained any economic or tangible benefit from the
attendees.” Id. at ¶ 25.
{¶26} Second, Durfor argues that the WMCC received an economic benefit
from the celebration because they sold food at a fish fry during part of the event.
Shelton’s affidavit does state that the “only money made by the [WMCC] * * * on
July 4, 2017 was from a fish fry.” Doc. 139, Affidavit. However, he also affirmed
that “[m]embers of the public were not required to purchase a meal at the * * * fish
fry in order to gain access to the property * * *”; that the WMCC “had no written
agreement with the village”; and that the WMCC “did not receive any form of
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compensation in exchange for the use of its property.” Doc. 139, Affidavit. See
Light, supra, at 68.
{¶27} Kimberly confirmed that the village did not have a contract with the
WMCC or pay the WMCC for use of its premises. Kerns Depo. 109. She also
affirmed that the July Fourth Celebration “was not some event they [the WMCC]
hosted because they made money off of it” and that she was not aware of “any
revenue generating aspect of this” event for the WMCC. Id. at 109. See Light,
supra, at 68. Kimberly and Durfor also testified that attendees did not need to
purchase a ticket or pay an admission fee to enter the WMCC premises for the
celebration. Kerns Depo. 109. Durfor Depo. 46. See Light, supra, at 68.
{¶28} Further, Shelton affirmed that the WMCC “held its grounds open to
the public at large for a July 4th celebration” but “was not in charge of the July 4th
celebration * * *” and “did not * * * arrange for activities or items to [be] brought
to the event * * *.” Doc. 139, Affidavit. Kimberly explained that “the community
steps up” to organize the July Fourth Celebration. Kerns Depo. 107. She affirmed
that, for this event, “people just bring things on an ad hoc basis and no planning,
they just bring it.” Id. at 26. She also stated that “whoever has games or activities
* * * can take them” and “just lay them all across the yard.” Id. at 15.
{¶29} Shelton and Kimberly both affirmed that the WMCC was not
consulted before the dunk tank was brought onto its premises. Doc. 139, Affidavit.
Kerns Depo. 111. J.S. testified that, at the time she used the dunk tank, no adult was
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around for supervision and affirmed that “there was no organization in terms of who
was going to throw the ball, who was going to get dunked[.]” J.S. Depo. 38-39, 41.
Durfor also testified that she was not aware of any person affiliated with the WMCC
who was supervising the dunk tank. Durfor Depo. 45.
{¶30} Further, the record indicates that the WMCC did not have a role in
other, larger activities at the celebration. Kimberly indicated that the fire
department pays for a company to stage a fireworks display at the celebration with
funds that come from community “donations and fundraisers.” Kerns Depo. 92-94.
Similarly, J.S. testified that, on the morning of the celebration, she and Durfor
participated in a softball event on the WMCC grounds. J.S. Depo. 31. She said that
this game was organized by the coaches in her softball league and that she was not
aware of any other person or entity that organized this event. Id. at 31-32. Thus,
the record indicates that the fish fry was one of many activities that occurred at the
celebration.
{¶31} However, there is no evidence that suggests that J.S. went to the fish
fry, purchased a meal, or even entered the WMCC’s premises to go to the fish fry.
See Lawson v. Scinto, 10th Dist. Franklin No. 08AP-1125, 2009-Ohio-2659, ¶ 11
(holding a person was a licensee where “there [was] no evidence that she ever
intended to patronize any of the businesses serviced by the parking lot where she
fell”); Mostyn v. CKE Restaurants, Inc., 6th Dist. Williams No. WM-08-018, 2009-
Ohio-2934, ¶ 5, 18 (holding that a person who slipped at a rest area with restaurants
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was a licensee because she entered solely to use the restroom “and had not entered
the area of the incident for any business purpose beneficial to appellee”).
{¶32} Third, Durfor argues that the WMCC benefits from the celebration
because members of the community are “familiarize[d] * * * with what [the]
WMCC has to offer” and that this “could increase membership in [the] WMCC * *
*.” (Emphasis added.) Appellant’s Brief, 9. See Honek, supra, at ¶ 25 (holding
that “the focus on the duty owed is the relationship between the injured party and
the property owner”).
{¶33} However, in Roesch v. Warren Distrib./Fleet Eng. Research, the
plaintiff went to a service station to fill his tires with an air pump that “was clearly
marked with a sign stating ‘Free Air.’” Roesch v. Warren Distrib./Fleet Eng.
Research, 146 Ohio App.3d 648, 2000-Ohio-2694, 767 N.E.3d 1187, ¶ 2-3 (8th
Dist.). The plaintiff was injured on the premises and sued the service station. Id.
He argued
that the air pump was located on Clark Oil’s premises for the purpose of attracting customers who would later purchase gas or sundries such as gum or cigarettes. He therefore claim[ed] that he qualifie[d] as a business invitee because he [was] a prospective paying customer.
Id. at ¶ 11. But the plaintiff “admit[ed] * * * that he had never made any purchases
of any kind at the Clark Oil station and that he never had any intention of making
any purchases, including the day he was injured.” Id. at ¶ 12, 22. He also did not
produce any evidence that the service station “provided * * * a free air pump or
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compressor * * * to attract customers in the hopes that the public would do business
in connection with receiving free air.” Id. at ¶ 24. Based on these facts, the Eighth
District concluded that the plaintiff was a licensee. Id. at ¶ 28.
{¶34} In the case presently before this Court, Durfor has not offered any
evidence that the WMCC opened its premises for the purported benefit alleged in
her brief. More importantly, Durfor has not identified any evidence that would
suggest that the WMCC “received a tangible or economic benefit from [J.S.’s] * *
* visit.” Madison v. Woodlawn Cemetery Assn., 6th Dist. Lucas No. L-10-1131,
2010-Ohio-5650, ¶ 13. See Provencher, supra, at 268 (emphasizing “the benefit
received by the party” rather than “what purpose the land was held open for” in
determining the entrant’s legal status”); Yonut v. Salemi, 10th Dist. Franklin No.
05AP-1094, 2006-Ohio-2744, ¶ 11-12.
{¶35} However, when asked why she went to the celebration at the WMCC,
J.S. said, “We were just going to go down there and have fun.” (Emphasis added.)
J.S. Depo. 17. Further, on the morning of the celebration, J.S. participated in a
softball game at the WMCC. Id. at 31. When she returned to the celebration in the
afternoon, she testified that she and her friends “seen [sic] the dunk tank and we said
that looks fun.” Id. at 38. These facts indicate that J.S. entered the WMCC’s
premises to enjoy the activities organized by the community “for [her] personal
benefit * * *.” Heffern, supra, at 52. See Honek, supra, at ¶ 25.
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{¶36} In the absence of evidence that J.S. entered the WMCC’s premises
“for some purpose that [was] * * * beneficial to the owner[s],” Durfor cannot
establish that J.S. was an invitee. Heffern, supra, at 52. Having examined the
evidence in the record, we conclude that the trial court did not err in determining
that J.S. was a licensee at the celebration. Doc. 166. Thus, in this case, the WMCC
owed J.S. “no duty except to refrain from wantonly or willfully causing injury.”
Light, supra, at 68 (“A licensee takes his license subject to its attendant perils and
risks.”).
{¶37} However, Durfor has not alleged that the WMCC engaged in any
willful or wanton conduct. Light, supra, at 68-69. Further, the record contains no
evidence that indicates the WMCC acted in such a manner. Id. For this reason, the
trial court did not err in granting the WMCC’s motion for summary judgment. As
such, Durfor’s first assignment of error is overruled.
{¶38} Durfor argues that the trial court erred in determining that J.S. was a
recreational user of the premises owned by the WMCC and that her claims were,
therefore, barred under the recreational immunity statute in R.C. 1533.181(A).
{¶39} Appellate courts are to “decide each assignment of error” raised on
appeal “unless an assignment of error is made moot by a ruling on another
assignment of error * * *.” App.R. 12(A)(1)(c). An issue is moot when it
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“involve[s] no actual genuine, live controversy, the decision of which can definitely
affect existing legal relations.” Culver v. City of Warren, 84 Ohio App. 373, 83
N.E.2d 82 (7th Dist. 1948), quoting Borchard, Declaratory Judgments, at 35 (2d Ed.
1941). “Put differently, an assignment of error is moot when an appellant presents
issues that are no longer live as a result of some other decision rendered by the
appellate court.” Sullinger v. Reed, 2021-Ohio-2872, 178 N.E.3d 29, ¶ 52 (3d Dist.),
quoting State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶
26.
{¶40} In this case, the trial court offered two bases for its decision to grant
summary judgment to the WMCC: (1) J.S. was a licensee on the WMCC property
and (2) J.S. was a recreational user on the WMCC’s property. Doc. 166. Either one
of these two bases would provide sufficient grounds for a grant of summary
judgment to the WMCC. See Light, supra, at 67-68, 69. Since we determined that
the trial court did not err in concluding that J.S. was a licensee under the first
assignment of error, we have already determined that the trial court had a sufficient
legal basis to grant the WMCC’s motion for summary judgment. Thus, the question
of whether J.S. was also a recreational user is moot. As such, we decline to address
the issues raised in Durfor’s second assignment of error pursuant to App.R.
12(A)(1)(c).
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Conclusion
{¶41} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Logan County Court of Common Pleas is
affirmed.
MILLER and SHAW, J.J., concur.
/hls
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