[Cite as Fifth Third Mtge. Co. v. Rankin, 2011-Ohio-2757.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
Fifth Third Mortgage Company, : : Plaintiff-Appellee, : Case No: 10CA45 : v. : : DECISION AND John Rankin, et al., : JUDGMENT ENTRY : Defendants-Appellants. : File-stamped date: 6-02-11
APPEARANCES:
John Rankin, Williamsport, Ohio, pro se, Appellant.
Melissa N. Meinhart, Manley Deas Kochalski, L.L.C., Columbus, Ohio, for Appellee.
Kline, J.:
{¶1} Fifth Third Mortgage Company (hereinafter “Fifth Third”) filed a complaint in
foreclosure against John Rankin (hereinafter “Rankin”), and the Pickaway County Court
of Common Pleas found for Fifth Third on summary judgment. On appeal, Rankin
contends that the trial court erred in granting summary judgment to Fifth Third. We
disagree. Instead, we find the following: (1) there are no genuine issues of material
fact; (2) Fifth Third is entitled to judgment as a matter of law; and (3) reasonable minds
can come to just one conclusion, and that conclusion is adverse to Rankin. Next,
Rankin contends that the trial court erred when it denied his motion for a continuance.
Because the trial court acted within its discretion, we disagree. Finally, Rankin
contends that the trial court erred when it denied his motion for leave to file an amended Pickaway App. No. 10CA45 2
answer and counterclaim. We, however, disagree. Because of the vagueness of
Rankin’s motion, we cannot find that the trial court abused its discretion. Accordingly,
we overrule Rankin’s assignments of error and affirm the judgment of the trial court.
I.
{¶2} Rankin had an adjustable-rate mortgage with Fifth Third. Under the
mortgage, Rankin’s interest rate was subject to change on the first day of each year,
starting January 1, 2007.
{¶3} On July 29, 2010, Fifth Third filed a complaint for foreclosure against Rankin.
Fifth Third alleged that Rankin had defaulted on his mortgage and owed $127,904.69 in
principal, plus interest and late fees. In his answer, Rankin stated that he reserved the
right to amend his “answer with a Counterclaim as may be appropriate following further
discovery.”
{¶4} On August 17, 2010, Rankin filed his first set of discovery requests. Rankin’s
request included sixteen interrogatories, fourteen requests for the production of
documents, and nine requests for admission. Fifth Third responded to Rankin’s
discovery request on September 23, 2010.
{¶5} On September 24, 2010, Fifth Third filed its motion for summary judgment.
Along with its motion, Fifth Third produced the affidavit of a “duly authorized
representative of Fifth Third Mortgage Company [who had] custody of, and maintain[ed]
records related to, the promissory note and mortgage that are the subject of this
foreclosure action.” The affiant testified, in part, (1) that Rankin was “in default because
monthly payments have not been made” and (2) that “principal in the amount of
$127,904.69” is due on the note. Pickaway App. No. 10CA45 3
{¶6} On September 27, 2010, Rankin filed his second set of discovery requests.
{¶7} On September 28, 2010, Rankin filed his motion for a continuance.
Essentially, Rankin claimed that Fifth Third did not comply with his discovery requests,
and, as a result, Rankin asked for a ninety-day continuance so that he could obtain the
appropriate discovery and properly oppose the motion for summary judgment. On
October 1, 2010, the trial court (1) denied the request for a continuance and (2) stated
that Rankin’s response to the motion for summary judgment would have “to be filed by
the deadline of October 8, 2010[,] as provided in Local Rule [section] 6.08.”
{¶8} On September 30, 2010, Rankin filed his motion for leave to file an amended
answer. Essentially, Rankin asked for leave to file an unspecified counterclaim. The
trial court, however, never expressly ruled on this particular motion.
{¶9} On October 6, 2010, Rankin filed his motion to reconsider ruling on motion for
continuance. This time, Rankin asked for a sixty-day continuance. However, before the
trial court ruled on his motion to reconsider, Rankin filed his opposition to Fifth Third’s
motion for summary judgment. Then, on October 20, 2010, the trial court denied
Rankin’s motion for reconsideration.
{¶10} Eventually, the trial court granted Fifth Third’s motion for summary judgment.
Furthermore, the trial court ordered that, “unless the sums found to be due to [Fifth
Third] are fully paid within three (3) days from the date of the entry of this decree, the
equity of redemption * * * shall be foreclosed and the Property shall be sold free of the
interests of all parties to this action.” Judgment Entry and Decree in Foreclosure at 5.
{¶11} Rankin appeals and asserts the following three assignments of error: I. “The
Trial Court erred by granting the Appellee’s Motion for Summary Judgment. Decision, Pickaway App. No. 10CA45 4
November 24th, 2010 (Record 63, Appendix C); and Judgment Entry, December 6th,
2010 (Record 64, Appendix D).” II. “The Trial Court erred by not granting a continuance
to the Appellant so that discovery could be obtained. Order, October 1st, 2010 (Record
43); Order, October 20th, 2010 (Record 50). Failure to rule; Objection was filed on
November 1st, 2010 (Record 58).” And, III. “The Trial Court erred by not granting leave
to the Appellant to amend [h]is answer and assert a Counter-Claim. Failure to rule;
Motion was fully briefed on October 8th, 2010 (Record 41,79,45).”
II.
{¶12} In his first assignment of error, Rankin contends that the trial court erred in
granting Fifth Third’s motion for summary judgment. “Because this case was decided
upon summary judgment, we review this matter de novo, governed by the standard set
forth in Civ.R. 56.” Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, at ¶8.
Summary judgment is appropriate only when the following have been established: (1)
there is no genuine issue as to any material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). See,
also, Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; Grimes v. Grimes, Washington
App. No. 08CA35, 2009-Ohio-3126, at ¶14. In ruling on a motion for summary
judgment, the court must construe the record and all inferences that arise from it in the
opposing party’s favor. Doe v. First United Methodist Church, 68 Ohio St.3d 531, 535,
1994-Ohio-531, superseded by statute on other grounds.
{¶13} The burden of showing that no genuine issue of material fact exists falls upon
the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, Pickaway App. No. 10CA45 5
1996-Ohio-107. However, once the movant supports his or her motion with appropriate
evidentiary materials, the nonmoving party “may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise
provided in [Civ.R. 56], must set forth specific facts showing that there is a genuine
issue for trial.” Civ.R. 56(E). See, also, Dresher at 294-295; Grimes at ¶15.
{¶14} “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶16
(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in
answering that legal question.” Morehead v. Conley (1991), 75 Ohio App.3d 409, 412.
See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809;
Grimes at ¶16.
A. Overview
{¶15} “The prerequisites for a party seeking to foreclose a mortgage are execution
and delivery of the note and mortgage; valid recording of the mortgage; default; and
establishing an amount due.” First Natl. Bank of Am. v. Pendergrass, Erie App. No. E-
08-048, 2009-Ohio-3208, at ¶21, citing Neighborhood Housing Servs. of Toledo, Inc. v.
Brown, Lucas App. No. L-08-1217, 2008-Ohio-6399, at ¶16. Rankin does not dispute
the execution, delivery, or recording of the mortgage. Moreover, Rankin does not claim
that he is up-to-date on his monthly payments. Instead, Rankin argues that Fifth Third
has failed to establish the proper amount due. Under this argument, Rankin claims that
Fifth Third erred in two distinct ways. First, Rankin argues that Fifth Third erred in
determining the adjustable interest rate for 2008. And second, Rankin argues that Fifth Pickaway App. No. 10CA45 6
Third miscalculated his daily interest rate throughout the life of the mortgage. For these
reasons, Rankin contends that Fifth Third misapplied his mortgage payments, which
created “an incorrect principal balance.” Brief of Appellant at 12. We will address these
arguments in the next three sections.
B. The Current Index Under the Adjustable Rate Rider
{¶16} Rankin argues that there is a genuine issue of material fact as to whether
Fifth Third miscalculated the interest on his Adjustable Rate Mortgage. To address this
argument, we must interpret the mortgage agreement between Rankin and Fifth Third.
“The construction and interpretation of contracts are matters of law.” Boggs v.
Columbus Steel Castings Co., Franklin App. No. 04AP-1239, 2005-Ohio-4783, at ¶5,
citing Latina v. Woodpath Dev. Co. (1991), 57 Ohio St.3d 212, 214. “We review matters
of law on a de novo basis.” Ervin v. Oak Ridge Treatment Ctr. Acquisition Corp.,
Lawrence App. No. 05CA27, 2006-Ohio-3851, at ¶7.
{¶17} “In construing any written instrument, the primary and paramount objective is
to ascertain the intent of the parties.” Aultman Hosp. Assn. v. Community Mut. Ins. Co.
(1989), 46 Ohio St.3d 51, 53. “‘The intent of the parties to a contract is presumed to
reside in the language they chose to employ in the agreement.’” McLaughlin v.
McLaughlin, Athens App. No. 00CA14, 2001-Ohio-2450, quoting Kelly v. Med. Life Ins.
Co. (1987), 31 Ohio St.3d 130, at paragraph one of the syllabus. “Language in the
contract must be given its plain and ordinary meaning unless another meaning is clearly
apparent from the contents of the contract.” McLaughlin v. McLaughlin, 178 Ohio
App.3d 419, 2008-Ohio-5284, at ¶16, citing Westfield Ins. Co. v. Galatis, 100 Ohio St.3d
216, 2003-Ohio-5849, at ¶11 (other citation omitted). Pickaway App. No. 10CA45 7
{¶18} The mortgage agreement’s Adjustable Rate Rider contains the following
language: “Beginning with the first Change Date, my interest rate will be based on an
Index. The ‘Index’ is the weekly average yield on United States Treasury securities
adjusted to a constant maturity of one year, as made available by the Federal Reserve
Board. The most recent Index figure available as of the date 45 days before each
Change Date is called the ‘Current Index.’
{¶19} “* * *
{¶20} “Before each Change Date, the Note Holder will calculate my new interest
rate by adding Three and Three-Quarters (3.7500%) to the Current Index. The Note
Holder will then round the result of this addition to the nearest one-eighth of one
percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this
rounded amount will be my new interest rate until the next Change Date.”
{¶21} Essentially, Rankin argues that Fifth Third used the wrong Index figure to
determine the Current Index for the January 1, 2008 Change Date. Rankin and Fifth
Third agree that November 17, 2007, was forty-five days before the Change Date and,
therefore, the appropriate day for determining the Current Index. But Rankin and Fifth
Third disagree as to how the Current Index should have been determined.
{¶22} The Federal Reserve releases statistical information in weekly H.15 reports.
(In the proceedings below, Fifth Third produced several hard copy printouts from the
Federal Reserve’s website. One of these printouts states that the Federal Reserve
releases H.15 statistical information “each Monday, generally at 2:30 p.m., unless
Monday is a federal holiday, in which case the data will be released on Tuesday,
generally at 2:30 p.m.”). According to the November 13, 2007 H.15 report, the weekly Pickaway App. No. 10CA45 8
average yield on United States Treasury securities was 3.72%. Therefore, from the
evidence, we can determine the following: (1) Saturday, November 17, 2007, was the
appropriate day to determine the Current Index; (2) based on the November 13, 2007
H.15 report, Fifth Third determined that 3.72% was the Current Index; and (3) the
Federal Reserve did not release another weekly H.15 report until November 19, 2007.
Despite all this, Rankin contends that Fifth Third should have calculated the weekly
average yield based on the daily yields reported on November 13, 14, 15, and 16
(according to Rankin, the Federal Reserve makes the daily numbers available at 6pm).
Thus, Rankin argues Fifth Third should have determined that the Current Index would
have been 3.58% – even if the Federal Reserve had not yet released the November 19,
2007 H.15 report.
{¶23} Here, the plain language of the Adjustable Rate Rider clearly contradicts
Rankin’s argument. As the language indicates, the Index “is the weekly average yield
on United States Treasury securities adjusted to a constant maturity of one year, as
made available by the Federal Reserve Board.” (Emphasis added.) And although
Rankin believes that Fifth Third should have performed its own calculations to
determine the Current Index, the figure derived from those calculations would not have
been made available by the Federal Reserve. Rather, that figure would have been Fifth
Third’s own assessment of the weekly average yield.
{¶24} Furthermore, Rankin’s proposed interpretation of the contract language
renders the words “most recent” meaningless, unnecessary, or superfluous. See
Capital City Community Urban Redevelopment Corp. v. City of Columbus, Franklin App.
No. 08AP-769, 2009-Ohio-6835, at ¶30 (“When interpreting a contract, we will presume Pickaway App. No. 10CA45 9
that words are used for a specific purpose and will avoid interpretations that render
portions meaningless or unnecessary.”), citing State v. Bethel, 110 Ohio St.3d 416,
2006-Ohio-4853, at ¶50; see, generally, Columbia Gas of Ohio, Inc. v. Larson Consol.,
Inc. (Dec. 15, 1999), Lorain App. No. 98CA007190 (refusing to interpret a contract in a
manner that would render terms superfluous). Again, the Adjustable Rate Rider states
that “[t]he most recent Index figure available as of the date 45 days before each Change
Date is called the ‘Current Index.’” (Emphasis added.) If, as Rankin suggests, Fifth
Third should have calculated the average weekly yield on November 17, 2007, the
reference to “the most recent Index figure” would be unnecessary. This is so because,
according to Rankin’s interpretation of the Adjustable Rate Rider, Fifth Third could have
calculated the Current Index on any day without reference to the weekly H.15 reports.
Indeed, Rankin’s interpretation of the Adjustable Rate Rider makes far more sense if we
excluded the words “most recent.”
{¶25} “When the terms in a contract are unambiguous, courts will not in effect
create a new contract by finding an intent not expressed in the clear language employed
by the parties.” Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 1992-Ohio-28,
citing Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 246. And here, it
is clear and unambiguous that the Current Index was to be derived from the Federal
Reserve’s weekly H.15 reports. In these reports, the Federal Reserve makes available
the “weekly average yield on United States Treasury securities adjusted to a constant
maturity of one year.” The Federal Reserve does not make available the “weekly
average yield on United States Treasury securities adjusted to a constant maturity of
one year” in its daily reports. Finally, by using the term “most recent,” it is clear that the Pickaway App. No. 10CA45 10
Current Index information would not be available on a daily basis. Thus, if we were to
follow Rankin’s interpretation of the Adjustable Rate Rider, we would have to ignore
certain words, add additional terms, and, in essence, create a new contract. We refuse
to do so.
{¶26} Because the contract is clear and unambiguous, we find that Fifth Third did
not miscalculate the adjustable interest rate for 2008. To adjust the interest rate, Fifth
Third correctly used the Current Index information as found in the November 13, 2007
H.15 report. Accordingly, as it relates to the determination of the Current Index, there
are no genuine issues of material fact.
C. 360 Day Interest Standard
{¶27} Under his first assignment of error, Rankin also claims that “[t]he daily interest
rate was calculated incorrectly, by using a 360 day standard and not the annual one
defined by the Note.” Brief of Appellant at 12. Here, aside from Rankin’s own affidavit,
there is no evidence that Fifth Third used an incorrect standard to calculate the daily
interest under the mortgage agreement. And “self-serving affidavits, unsupported and
without corroborating evidentiary materials, are not sufficient to create a genuine issue
of material fact on summary judgment[.]” Camp St. Mary’s Assn. of W. Ohio
Conference of the United Methodist Church, Inc. v. Otterbein Homes, 176 Ohio App.3d
54, 2008-Ohio-1490, at ¶46, citing Am. Heritage Life Ins. Co. v. Orr (C.A.5, 2002), 294
F.3d 702, 710. Thus, as it relates to the calculation of the daily interest rate, Rankin has
not established any genuine issues of material fact.
D. Incorrect Principal Balance Pickaway App. No. 10CA45 11
{¶28} Finally, Rankin argues that “the application of additional payments and over
payments were misapplied, thus creating an incorrect principal balance.” Brief of
Appellant at 12. Essentially, Rankin’s third argument relies on his first two arguments.
That is, Rankin claims (1) that he overpaid his mortgage based on Fifth Third’s
miscalculations and (2) that his overpayments were not applied to the principal balance.
Here, we have already found that there are no genuine issues of material fact related to
the calculation of Rankin’s interest rate. Thus, Rankin cannot establish a genuine issue
of material fact as to whether he overpaid the mortgage principal. Again, Rankin’s self-
serving affidavit will not create a genuine issue of material fact.
E. Conclusion
{¶29} After construing the record and all inferences therefrom in Rankin’s favor, we
find the following: (1) there are no genuine issues of material fact; (2) Fifth Third is
entitled to judgment as a matter of law; and (3) reasonable minds can come to just one
conclusion, and that conclusion is adverse to Rankin. Accordingly, we overrule his first
assignment of error.
III.
{¶30} In his second assignment of error, Rankin contends that the trial court erred
when it denied his request for a continuance. We disagree.
{¶31} “Pursuant to Civ.R. 56(F), a party may seek additional time in which to
develop the facts needed to adequately oppose a motion for summary judgment. * * *
Absent an abuse of discretion, an appellate court will not reverse a trial court’s ruling on
a Civ.R. 56(F) motion.” Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-
Ohio-4601, at ¶100, citing State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children and Pickaway App. No. 10CA45 12
Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, at ¶9 (other internal citations
omitted). An abuse of discretion connotes more than a mere error of judgment; it
implies that the court’s attitude is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶32} Civ.R. 56(F) provides: “Should it appear from the affidavits of a party
opposing the motion for summary judgment that the party cannot for sufficient reasons
stated present by affidavit facts essential to justify the party’s opposition, the court may
refuse the application for judgment or may order a continuance to permit affidavits to be
obtained or discovery to be had or may make such other order as is just.”
{¶33} Rankin requested a continuance because he wanted to obtain further
discovery regarding Fifth Third’s alleged interest miscalculations. But here, the trial
court could have reasonably concluded that further discovery would have been fruitless.
Therefore, we cannot find that the trial court abused its discretion by denying Rankin’s
request for a continuance. See, generally, Doriott v. MVHE, Inc., Montgomery App. No.
20040, 2004-Ohio-867, at ¶41 (“A party who seeks a continuance for further discovery
is not required to specify what facts he hopes to discover, especially where the facts are
in the control of the party moving for summary judgment. * * * However, the court must
be convinced that there is a likelihood of discovering some such facts.”) (internal
citations omitted). In his motion for a continuance, Rankin claimed that “proof ha[d]
already been developed concerning the truth of [Fifth Third’s] miscalculations and
breaches[.]” Therefore, Rankin argued that he needed additional discovery “to
determine the complete extent of [Fifth Third’s] overcharges.” Motion for Continuance
of Motion for Summary Judgment at 4. In other words, Rankin claimed that he needed Pickaway App. No. 10CA45 13
further discovery merely to prove damages. But both the trial court and this court have
found that there are no genuine issues of material fact related to the alleged interest
miscalculations. And because Rankin cannot show that Fifth Third miscalculated his
mortgage interest, the question of damages is immaterial. As a result, Rankin failed to
demonstrate a likelihood of uncovering any pertinent facts, and “the trial court was not
under any obligation to permit [Rankin] to conduct a fishing expedition[.]” Manofsky v.
Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 668.
{¶34} Accordingly, we overrule Rankin’s second assignment of error.
IV.
{¶35} In his third assignment of error, Rankin contends that the trial court erred
when it denied his motion for leave to file an amended answer and counterclaim.
(Although the trial court did not explicitly rule on Rankin’s motion, “motions that a trial
court fails to explicitly rule upon are deemed denied once a court enters final judgment.”
Savage v. Cody-Ziegler, Inc., Athens App. No. 06CA5, 2006-Ohio-2760, at ¶28.)
{¶36} “The decision to grant or deny a motion for leave to amend a pleading is
within the sound discretion of the trial court. * * * Thus, we will not reverse a court’s
decision denying a motion for leave to amend, absent an abuse of discretion.” Mollette
v. Portsmouth City Council, 169 Ohio App.3d 557, 2006-Ohio-6289, at ¶28 (internal
citations omitted).
{¶37} Rankin’s motion for leave implicates both Civ.R. 15(A) and Civ.R. 13(F).
Under Civ.R. 15(A), “A party may amend his pleading once as a matter of course at any
time before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon the trial Pickaway App. No. 10CA45 14
calendar, he may so amend it at any time within twenty-eight days after it is served.
Otherwise a party may amend his pleading only by leave of court or by written consent
of the adverse party. Leave of court shall be freely given when justice so requires.” And
under Civ.R. 13(F), “When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may by leave of court
set up the counterclaim by amendment.”
{¶38} “Once an answer to a complaint has been served, a party may amend its
pleading only by leave of court or by written consent of the adverse party. * * * The rule
favors a liberal policy when the trial court is faced with a motion to amend a pleading
beyond the time limit that automatically allows such amendments.” Mollette at ¶27
(internal citations omitted). Here, Rankin’s motion to amend came after the time limit for
an amendment as a matter of course. As a result, to assert his counterclaim, Rankin
needed the leave of the court or the written consent of Fifth Third.
{¶39} As it relates to Rankin’s motion to amend, we cannot find that the trial court
acted arbitrarily, unreasonably, or unconscionably. Of course, we recognize (1) that
courts should liberally construe Civ.R. 15(A) and Civ.R. 13(F) and (2) that a “motion for
leave to amend should be granted absent a finding of bad faith, undue delay or undue
prejudice to the opposing party.” Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 6 (citation
omitted). See, also, Reinhart v. Fostoria Plumbing, Heating & Elec. Supply, Inc.,
Seneca App. No. 13-10-08, 2010-Ohio-4825, at ¶10 (stating that courts liberally
interpret Civ.R. 15(A) and Civ.R. 13(F)); Stark v. Baker (Jan. 26, 1984), Cuyahoga App.
No. 46962 (“[T]he liberal amendment standard of 15(A) has been applied in the federal
jurisdiction to the 13(F) situation: leave of the court to set up a counterclaim shall also Pickaway App. No. 10CA45 15
be ‘freely given[.]’”) (citation omitted). Nevertheless, we also recognize the
requirements of Civ.R. 7(B)(1), which states that a “motion, whether written or oral, shall
state with particularity the grounds therefor, and shall set forth the relief or order
sought.” And because of the vagueness of Rankin’s motion, we cannot find that the trial
court abused its discretion in denying Rankin’s motion to amend his answer and assert
a counterclaim. Here, Rankin failed to state precisely what counterclaim he hoped to
assert. Instead, Rankin merely stated that he wanted to file some unspecified “counter-
claim.” Therefore, Rankin failed to (1) state with particularity the grounds for his motion
or (2) set forth the relief sought. Even on appeal, Rankin cannot say what his desired
outcome would be – that is, what counterclaim he might possibly assert had the trial
court granted his motion. Therefore, we cannot find that the trial court abused its
discretion.
{¶40} Accordingly, we overrule Rankin’s third assignment of error. Having
overruled all of his assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Pickaway App. No. 10CA45 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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 Pickaway County Common Pleas Court 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. Exceptions.
Abele, J.: Concurs in Judgment and Opinion. McFarland, J.: Not Participating.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.