[Cite as Foster v. Benson, 2019-Ohio-1528.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
EROL FOSTER :
Plaintiff-Appellant, : No. 107366 v. :
ANGELA BENSON, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED RELEASED AND JOURNALIZED: April 25, 2019
Civil Appeal from the Cleveland Municipal Court Case No. 2016 CVG 11394
Appearances:
Mike Heller Law, L.L.C., Michael A. Heller, for appellant.
Angela Benson, pro se; Dwayne Thomas, pro se, appellees.
MARY J. BOYLE, P.J.:
Plaintiff-appellant, Erol Foster, appeals from the trial court’s
judgment granting defendants $8,000 in damages and court costs. He raises 12
assignments of error for our review:
1. Plaintiff/Appellant was denied due process. 2. The trial court erred in failing to record the proceedings before the Magistrate (hearing of 09/14/2017).
3. Magistrate’s Decision (of 09/27/2017) is/was against the manifest weight of the evidence.
4. The trial court erred in the failure of adequate proof of damages by Defendant/Appellee(s).
5. Trial Court erred in finding that Plaintiff/Appellant Foster allegedly sold her 2 couches to a neighbor.
6. Trial Court erred in finding that Plaintiff/Appellant Foster had allegedly thrown out Defendant/Appellee(s)’s [sic] belongings.
7. Trial Court otherwise erred in finding that Plaintiff/Appellant had “removed” or “taken” Defendant/Appellee(s)’s [sic] belongings.
8. Trial Court erred in referring to ‘Defendant/Appellee(s)s’ [sic] in the plural, including but not limited to, arbitrarily awarding judgment to both Defendant/Appellees, and, in dismissing Plaintiff/Appellants’ claims against both Defendant/Appellees.
9. Trial Court erred in finding that Plaintiff/Appellant had locked Defendant/Appellee(s) out.
10. Trial Court erred in finding that Plaintiff/Appellant Foster violated ORC 5321.15.
11. Trial Court erred in finding that Plaintiff/Appellant Foster committed the tort of conversion.
12. Trial Court erred in failing to assign a dollar amount of damages to the alleged tort of conversion and/or to itemize damages therefor.
Finding partial merit to Foster’s eighth assignment of error, we affirm
in part, modify in part, and remand for the trial court to issue a journal entry only
awarding Angela Benson $8,000 in damages on her counterclaim against Foster and omitting an award of damages to Dwayne Thomas. (Benson and Thomas are
collectively referred to as “defendants.”)
I. Procedural History and Factual Background
On August 11, 2016, Foster filed a pro se complaint in forcible entry
and detainer and for money damages against the defendants. Foster alleged that he
owned a residential property located at 3255 East 117th Street in Cleveland and that
he rented the property on a monthly basis to Benson and Thomas, but that they
failed to pay rent at the beginning of August 2016. Specifically, Foster alleged that
Benson and Thomas “agreed to pay [Foster] rent for the premises in the amount of
$600.00 per month” and that they “failed to pay plaintiff rent for the period from
the 1st day of August 2016 until the present[.]” Foster also alleged that he served
Benson and Thomas with a written notice to leave the premises on August 5, 2016.
Foster said defendants owed him $600 “plus $30 per day until [they] vacate * * *
the premises” as well as “$300.00 for property damage” and “court filing fees and
legal fees.” As a result, Foster sought “$950.00 plus $30.00 per day until
defendant[s] vacate[] the premises.”
Foster, this time with representation, filed an amended complaint on
September 1, 2016, adding a new third-party plaintiff, Foster EM Family Trust.1 The
amended complaint included the same allegations, but asked for money damages in
1Hereinafter, Foster and Foster EM Family Trust are collectively referred to as “plaintiffs.” the amount of $5,000 for “property damage, delinquent rent, * * * and other,” as
well as $30 per day until the defendants vacated the premises.
The magistrate set a hearing for the matter, but continued it for lack
of service of the summons and complaint on defendants. After resetting the hearing,
the magistrate again found that service was not perfected.
In October 2016, Benson filed an answer, denying the allegations.
She alleged that “Foster change[d] and bolted the locks and doors [and she] was
unable to get into our home as of August 2016 so I don’t owe any rent[.] Couldn’t
get into home.” Benson also filed counterclaims against Foster for damages “for
illegally moving all our property out [of] our home on October 17, 2016.” She alleged
that “we never got any notice based upon eviction[.] When I got the call I called
eviction court and they gave us a date stating they made several attempts but we
never got any mail since July[.] Our court date was [November] 9, 2016.” She also
alleged that Foster “paid for dump trucks called ‘Pete and Pete’ and trash[ed] all our
belonging[s] and we lost everything without being evicted. [A]lso for lost wages.”
She therefore requested a judgment for $8,000 plus costs.
Thomas did not file an answer.
In December 2016, plaintiffs moved to strike Benson’s answer and
counterclaim for failure of service. Plaintiffs argued that Benson’s alleged service on
Foster was inadequate because she should have served plaintiffs’ attorney who
appeared on his behalf and represented him when the amended complaint was filed.
Foster also argued that he never received Benson’s answer and counterclaim. The trial court denied plaintiffs’ motion, but granted plaintiffs “leave
to plead until January 27, 2017 to file a response to [the] counterclaim.” Plaintiffs
did not file a response to Benson’s counterclaim.
The case proceeded to trial in September 2017, but plaintiffs failed to
appear. Benson appeared pro se and submitted a list of items that she alleged were
lost or destroyed as a result of Foster’s actions. That list was marked as Exhibit A.
On September 27, 2017, the magistrate issued a decision, making the
following factual findings:
Plaintiff Erol Foster entered into a rental agreement with Defendants for property at 3255 E. 117th St., Cleveland.
In July 2016, Defendant Benson asked Plaintiff Foster to change the locks at the property because of a problem with a neighbor.
Defendant Benson was residing with her mother and preparing for her wedding and so did not press Plaintiff Foster on the question of getting a key; she was able to enter the property through a window to retrieve belongings she needed for her wedding.
Defendant Benson told Plaintiff Foster that she planned to come to the property with a moving truck to move out all her furniture and her belongings, again asking for a key.
***
The first cause hearing was then set for September 29, 2016; on that day, it was continued due to lack of service on Defendants of the summons and complaint. The Court set the case for October 12, [2016] but service again failed. On October 17, [2016], Plaintiff Foster, without having any authority from the Court allowing him to do so, removed almost all of Defendants’ belongings from the property. Defendant Benson discovered that he had sold her two couches to a neighbor and had taken or thrown out almost all of her belongings, a true and accurate list of which she offered into evidence as Defendant’s Exhibit 1.
The cost to Defendants to replace lost belongings will be greater than $8000.
Defendants are also entitled to damages for the disruption and inconvenience of being locked out and losing their belongings but since their damages are already in excess of their prayer amount, the Court makes no finding as to the dollar amount of these damages.
The magistrate stated that “Plaintiff Foster knew that he had not
obtained a judgment of eviction and knew that Defendants had no intention of
abandoning their personal property” and that he “therefore violated R.C. 5321.15
and committed the tort of conversion.” The magistrate also found that “Defendants
did not provide testimony that Plaintiff Foster EM Family Trust had any role in
removing their belongings.” As a result, the magistrate granted “judgment to
Defendants against Plaintiff Erol Foster in the amount of $8000 plus court costs”
and “with interest from the date of judgment.” It also dismissed “Plaintiffs’ claims
with prejudice as a sanction for Plaintiffs’ failure to appear for trial” and dismissed
“without prejudice Defendants’ claims against Plaintiff Foster EM Family Trust.”
On September 27, 2017, the trial court adopted the magistrate’s
decision granting defendants $8,000 “plus court costs with interest from the date of judgment[,]” dismissing defendants’ claims against Foster EM Family Trust, and
dismissing plaintiffs’ claims with prejudice.
On September 29, 2017, plaintiffs filed a motion for leave to file an
answer. Plaintiffs alleged that “[a]pparently by excusable neglect[, they]
inadvertently did not answer Defendant’s counterclaim.” They also argued that the
“Magistrate’s Decision * * * on or about Sept. 27 must be stricken, and a new trial
must be set.” Shortly after, plaintiffs also filed a “Motion for audio recording &
exhibits, etc.” requesting evidence presented during the September 14, 2017 hearing.
The trial court denied plaintiffs’ motion for leave and vacation of
judgment. The trial court also denied plaintiffs’ motion for audio recording, stating
that “the Court did not make an audio recording of the ex parte trial.”
On October 11, 2017, plaintiffs filed objections to the magistrate’s
decision. Plaintiffs attached an affidavit from their attorney, an affidavit from
plaintiffs themselves, a copy of a list of property that Benson lost and produced at
trial, and a copy of a failure of service notification from the Cleveland Municipal
Court showing that service was not perfected on Benson. Plaintiffs also
subsequently filed a motion to stay execution and strike “Defendant’s ‘Lien
Certificate Request’ of 10/10/2017, and the ‘Certificate of Judgment for Lien,’
entered by [the trial court] on or about 10/16/2017.” The trial court did not rule on
that motion.
In its June 1, 2018 judgment entry reviewing plaintiffs’ objections, the
trial court grouped the objections into four categories: lack of audio recording, lack of notice of trial date, dismissals with/without prejudice, and factual objections.
First, the trial court overruled plaintiffs’ objections based on the lack of audio
recording, citing Loc.R. 3.08(C) of the Court of Common Pleas of Cuyahoga County,
General Division, and finding that there was “no requirement that a [m]agistrate
create an audio recording of a court proceeding, once the matter reaches beyond the
first cause hearing stage.”
As to the lack of notice of trial date, the trial court stated that because
Foster was represented by counsel, counsel, not Foster himself, would have received
notice of the September 14 hearing. The court stated that while plaintiffs’ counsel
“[did] not recall receiving a notice of the hearing[,]” “plaintiff was aware that the
April 2017 settlement conference was unsuccessful, and [that] the matter would be
set for trial. The trial notice was issued on August 7, 2017 and mailed to counsel on
August 10, 2018 [sic], more than one month before the September 14, 2017 trial.”
The trial court stated that it was “counsel’s responsibility to keep apprised of the
Court’s docket and any upcoming events[,]” and that “it is the responsibility of the
parties to review the docket and filings.” The court also noted that it had an
electronic docket. The trial court thus upheld “the dismissal of Plaintiff’s case for
his failure to appear at Trial.”
Turning to plaintiffs’ objections as to the dismissals, the trial court
stated,
In light of the prevailing case law that favors a dismissal without prejudice, the objection to the fact that that dismissal was with prejudice is well-taken. The dismissal of Plaintiff’s claims should have been without prejudice. The Magistrate’s decision is modified to reflect the fact that the dismissal of Plaintiff’s case is without prejudice.
Plaintiff also objects to the language concerning the dismissal of Defendant’s counterclaims against the entity Foster EM Family Trust who was added as a party-plaintiff in Plaintiff’s Amended Complaint. * * * A review of the docket reveals that Defendants’ counterclaims were asserted as to Erol Foster only. After Plaintiff amended his complaint to name Foster EM Family Trust as a new party-plaintiff, Defendants did not restate their counterclaims against the new Plaintiff. Furthermore, when Defendants had the opportunity to present evidence at trial against Foster EM Family Trust, they failed to do so.
(Emphasis sic.) As a result, the trial court sustained plaintiffs’ objection and
dismissed Benson’s counterclaims against Foster EM Family Trust with prejudice.
Finally, as to plaintiffs’ objections to the magistrate’s factual findings,
the trial court first noted that plaintiffs “did not attach any evidence to [their]
objections from which the Court might conclude that the Magistrate’s factual
findings were indeed ‘against the manifest weight of the evidence.’” The court went
on to state, “Plaintiffs’ Objections included an affidavit from Plaintiff Erol Foster
which avers only that he had no notice of the trial on September 14. The affidavit
from the Plaintiff does not include any allegations challenging the factual matters
used by the Court to come to its ruling.” The trial court also stated that even if it
“were to construe Plaintiffs’ Objections as a Motion for Relief, Civil Rule 60(B) has
the same requirements for the type of evidence that must be presented to the Court
when a party challenges factual findings.” The trial court found that plaintiffs’
failure to attach factual material in support did not comply with Civ.R. 60(B). The
court therefore overruled the plaintiffs’ factual objections. On June 14, plaintiffs filed a motion to stay execution and to strike
“Defendant’s ‘Garnishment Other than Personal Earnings’ of 6/4/2018, and, the
Judgment Entry/Notice of this Court of on or about 6/13/2018.” On July 2, 2018,
the trial court issued a journal entry stating that granting plaintiffs’ motion for a stay
of execution was “contingent on plaintiffs providing a supersedeas bond of $8,000
plus court costs” and that “the stay will take effect when the bond is approved by the
court.” The docket does not reflect whether plaintiffs ever provided the bond and
whether the trial court actually granted the stay.
Plaintiffs also contemporaneously filed a notice of appeal from the
court’s June 1, 2018 judgment entry.
On January 4, 2019, we remanded the case to the trial court under
App.R. 9(E), finding that “[a]lthough the trial court adopted the magistrate’s report,
it failed to enter a separate judgment stating the relief to be afforded.” On remand,
the trial court granted the following judgment:
On Defendants’ counterclaims against Plaintiff Erol Foster, the Court grants judgment to Defendants against Plaintiff Erol Foster in the amount of $8000 plus court costs with interest from the date of judgment.
On Defendants’ counterclaims against Plaintiff Erol Foster Family Trust, the Court dismisses those counterclaims with prejudice.
On Plaintiff’s claims against Defendants, the Court dismisses those claims with prejudice.
It is from this judgment that Foster now appeals. II. Law and Analysis
A. Due Process
In Foster’s first assignment of error, he argues that the trial court
denied him his procedural due process rights by (1) failing to provide plaintiffs or
their counsel notice of the September 14 hearing, (2) proceeding with the hearing
without plaintiffs, and (3) failing to “make any findings as to service of notice of
hearing.”
1. Notice
Foster first argues that he, the Foster EM Family Trust, and his
counsel did not receive notice of the September 14 hearing before the magistrate.
Foremost, “[t]he power to dismiss for lack of prosecution is within the
sound discretion of the trial court, and appellate review is confined solely to whether
the trial court abused that discretion.” Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437,
N.E.2d 1199 (1982). In Pembaur, the Ohio Supreme Court stated, “Pursuant
to Civ.R. 41(B)(1), it is not an abuse of discretion for the trial court to dismiss an
action, with prejudice, for lack of prosecution when a plaintiff voluntarily fails to
appear at a hearing, without explanation, when the court has directed him to be
present and his location is unknown.” Id. at syllabus.
In this case, the trial court’s docket reflects that the trial court
scheduled the September 14 hearing on August 9, 2017. Further, the trial court’s
August 11, 2017 judgment entry — which set the case for trial on September 14 —
states that a copy of the entry was “sent by regular U.S. mail to parties/counsel on 8/10/17.” Further, on March 3, 2017, the trial court issued a journal entry warning
that “[p]ursuant to Ohio Rule of Civil Procedure 41(B), failure of a party or counsel
to attend may result in dismissal of that party’s claims[.]”
Notice shall be deemed to have been provided once the clerk has served notice of the entry and made the appropriate notation on the docket. Atkinson v. Grumman Ohio Corporation (1988), 37 Ohio St.3d 80, paragraph four of syllabus. Moreover, the validity of the judgment is not affected by a party’s failure to receive such notice. Id. There is also a presumption of proper service in cases where the Civil Rules on service are followed. Grant v. Ivy (1980), 69 Ohio App.2d 40, 42. However, this presumption may be rebutted by sufficient evidence. Id.
Martin v. Manning, 8th Dist. Cuyahoga No. 62039, 1991 Ohio App. LEXIS 5763, 1-
2 (Dec. 5, 1991). “[N]otice to an attorney may be imputed to the client.” State v.
Hysell, 4th Dist. Meigs No. 95 A 4, 1995 Ohio App. LEXIS 4408, 7 (Sept. 27, 1995).
In an attempt to rebut the presumption of service, Foster points to
affidavits from him, the trust itself, and the parties’ attorney, which were attached
to their objections to the magistrate’s decision. Plaintiffs’ attorney’s affidavit states
that he “did not or [does] not recall receiving a notice of said hearing.”
However, “a party’s self-serving statement that he did not receive
service is generally insufficient to rebut the presumption of service.” Castanias v.
Castanias, 12th Dist. Warren No. CA2009-11-152, 2010-Ohio-4300, ¶ 11. Therefore,
plaintiffs’ attorney’s claim that he does not remember receiving notice is insufficient
to rebut the presumption of service. Because the docket reflects that plaintiffs
and/or their attorney received notice of the September 14 hearing, we presume that
service was proper and find that the trial court did not abuse its discretion. 2. Plaintiffs’ Absence at Hearing
Foster next argues that the trial court abused its discretion by
proceeding to trial in plaintiffs’ absence. However, as discussed above, we find no
abuse of discretion with the trial court proceeding without plaintiffs.
3. Findings of Service of Notice
Third, Foster argues that the magistrate “failed to make any findings
as to service of notice of hearing[,]” stating that the decision only said that “Plaintiffs
failed to appear” and failed to state how or whether plaintiffs were served. Foster,
however, fails to cite any support establishing that a magistrate must make factual
findings related to service of notice. Further, “[a] court speaks through its docket
and journal entries.” State v. Deal, 8th Dist. Cuyahoga No. 88669, 2007-Ohio-5943,
¶ 54, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024.
By stating that “plaintiffs failed to appear,” the magistrate impliedly found, based on
evidence in the docket, that plaintiffs received service, and the trial court’s docket
confirms such a finding.
Accordingly, we overrule Foster’s first assignment of error.
B. Failure to Record
In Foster’s second assignment of error, he argues that the trial court
“erred in failing to record the proceedings before the magistrate (hearing of
09/14/2017).” Civ.R. 53(D)(7) requires that the proceedings before a magistrate be
recorded in accordance with the procedures established by the court. Rule 3.08 of
the Cleveland Housing Court’s rules, however, states in relevant part:
(A) Except where required by law, the Court does not utilize a court reporter to transcribe proceedings in civil matters.
(B) Any party or his representative may retain the service of a private reporter to keep a verbatim record of any scheduled hearing. * * *
(C) An “audio only” digital recording is made of eviction hearings. Audio only digital recordings of other hearings also may be made.
(Emphasis added.)
The September 14 hearing was not an eviction hearing, particularly
because the trial court dismissed plaintiffs’ eviction action based on plaintiffs’
absence and failure to prosecute their claims. Instead, the hearing only concerned
Benson’s counterclaims against Foster. There is nothing from the record to suggest
that any party retained the service of a private reporter or that the trial court
required the hearing to be recorded. Therefore, pursuant to the procedures
established in the Cleveland Municipal Court, it was plaintiffs’ responsibility to
retain a private court reporter if they desired one, not the court’s, and the trial court
did not err in not recording the proceedings.
Accordingly, we overrule Foster’s second assignment of error. C. Manifest Weight and Sufficiency of the Evidence
In Foster’s third, fourth, fifth, sixth, seventh, ninth, tenth, and
eleventh assignments of error, he argues that the trial court’s judgment was
supported by insufficient evidence and was against the manifest weight of the
evidence.
It is well settled that “an appellant bears the burden of providing the
reviewing court with a transcript of the proceedings to demonstrate any claimed
errors.” State v. Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, ¶ 6,
citing State v. Blashaw, 8th Dist. Cuyahoga No. 98719, 2012-Ohio-6011. “‘When
portions of the transcript necessary for resolution of assigned errors are omitted
from the record, the reviewing court has nothing to pass upon and, thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower
court’s proceedings, and affirm.’” State v. Simmons, 8th Dist. Cuyahoga No.
100638, 2014-Ohio-3038, ¶ 14, quoting Knapp v. Edwards Laboratories, 61 Ohio
St.2d 197, 400 N.E.2d 384 (1980). Further, “[i]f no recording of the proceedings
was made, * * * the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s recollection.”
App.R. 9(C).
Here, Foster challenges the sufficiency and manifest weight of the
evidence presented at the September 14 hearing. Without a transcript or statement
of the evidence or proceedings, however, we have no basis upon which to analyze his
assignments of error that concern factual disputes. Fennell v. DeMichiei, 8th Dist. Cuyahoga No. 106966, 2019-Ohio-252, ¶ 11 (“[B]ecause Fennell did not file a
transcript of either the August 2017 or February 2018 hearings, we are unable to
review her arguments to the extent they relate to factual disputes.”). Instead, we are
left with the trial court’s factual findings. Accordingly, we must presume regularity
of the lower court’s proceedings and affirm the trial court’s judgment. State v.
Williams, 8th Dist. Cuyahoga No. 101806, 2015-Ohio-881, ¶ 13.
Accordingly, we overrule Foster’s third, fourth, fifth, sixth, seventh,
ninth, tenth, and eleventh assignments of error.
D. Trial Court’s Award to “Defendants”
In Foster’s eighth assignment of error, he argues that the trial court
erred “in referring to ‘Defendant/Appellee(s)s’ [sic] in the plural” and “arbitrarily
awarding judgment to both Defendant/Appellees[.]” He also argues that the trial
court erred in awarding damages to defendants “for all property, regardless of if or
whether it belonged to [Benson or Thomas] * * * or was jointly owned.”
We disagree with Foster that the trial court erred in awarding
damages to Benson without finding whether the property was jointly owned. At the
September 14 hearing, Benson provided the trial court with a list of property that
she lost or was destroyed by Foster’s actions in support of her counterclaim, which
was submitted and received by the trial court as an exhibit. Further, plaintiffs did
not attend the hearing, let alone provide evidence suggesting that Benson did not
own any of the property that she included in her list, cross-examine Benson, or
challenge the amount that the trial court attributed to the property. Nevertheless, a review of the record shows that Benson was the only
defendant to file a counterclaim against Foster. Therefore, the trial court’s judgment
awarding damages to both Benson and Thomas is incorrect and should only award
damages to Benson. While the trial court’s error is clerical in nature and such an
error can typically be fixed via a nunc pro tunc entry, that type of entry “is restricted
to placing upon the record evidence of judicial action which has been actually taken”
and “it can be exercised only to supply omissions in the exercise of functions that are
clerical merely.” Jacks v. Adamson, 56 Ohio St. 397, 402, 47 N.E. 48 (1897). “The
function of nunc pro tunc is not to change, modify, or correct erroneous judgments,
but merely to have the record speak the truth.” Ruby v. Wolf, 39 Ohio App. 144, 10
Ohio Law Abs. 79, 177 N.E. 240 (8th Dist.1931). Without a transcript of the
September 14th hearing, we are unable to discern whether the trial court correctly
awarded damages only to Benson at the hearing and are left with the trial court’s
erroneous award of damages to Thomas. Therefore, we modify the trial court’s
judgment entry and remand with instructions for the trial court to issue a journal
entry that only awards Benson $8,000 in damages and omits an award to Thomas.
Accordingly, we sustain in part Foster’s eighth assignment of error to
the extent that the trial court’s judgment entry should reflect that it only awarded
damages to Benson, not Thomas, but overrule the remaining arguments.
E. Damages
In Foster’s twelfth assignment of error, he argues that the trial court
erred “in failing to assign a dollar amount of damages to the alleged tort of conversion and/or to itemize damages therefor.” Foster’s argument in support of
this assignment of error is one sentence long and fails to elaborate on the point he
attempts to make. Further, the trial court’s January 9, 2018 judgment entry
specifically states that it granted defendants damages “in the amount of “$8,000
plus court costs with interest[.]” We are unable to discern what Foster alleges is
deficient with that award.
Accordingly, we overrule Foster’s twelfth assignment of error.
Judgment affirmed in part, modified in part, and remanded for the
trial court to issue a journal entry only awarding Benson $8,000 in damages and
omitting an award of damages to Thomas.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and KATHLEEN ANN KEOUGH, J., CONCUR