[Cite as Gemperline v. Franano, 2021-Ohio-2394.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: MICHAEL L. GEMPERLINE Hon. Craig R. Baldwin, P. J. Hon. W. Scott Gwin, J. Plaintiff-Appellant Hon. John W. Wise, J.
-vs- Case No. 21 CAE 01 0002
DOMENICO FRANANO, et al. OPINION Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 20 CV H 03 0166
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: July 14, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Franano
JOSHUA J. BROWN BRIAN L. WILDERMUTH CASSONE LAW OFFICES, LLC SUBASHI, WILDERMUTH & JUSTICE 5086 North High Street THE GREENE TOWN CENTER Suite A 50 Chestnut Street, Suite 230 Columbus, Ohio 43214 Dayton, Ohio 45440
For Defendant-Appellee Slavik
MARK HOWARD GAMS GALLAGHER GAMS TALLAN BARNES & LITTRELL 471 East Broad Street, 19th Floor Columbus, Ohio 43215-3872 Delaware County, Case No. 21 CAE 01 0002 2
For Defendant-Appellee Mount
C. JOSEPH McCULLOUGH WHITE, GETGEY and MEYER CO., LPA 7587 Central Park Boulevard, Suite B Mason, Ohio 45040
For Defendant-Appellee Johnson
DAVID W ORLANDINI COLLINS, ROCHE, UTLEY & GARNER 655 Metro Place South, Suite 200 Dublin, Ohio 43017
For Defendant-Appellee Daly JOSHUA R. BILLS NICHOLAS S. BOBB PELINI, CAMPBELL & WILLIAMS, LLC 5880 Innovation Drive Dublin, Ohio 43016
For Defendant-Appellee Houk
TERRENCE J. KENNEALLY SEAN M. KENNEALLY LAW OFFICES OF TERRENCE J. KENNEALLY & ASSOCIATES CO. River Terrace Building 19111 Detroit Road, Suite 200 Rocky River, Ohio 44116
For Defendant-Appellee Miceli
GARY G. YASHKO LAW OFFICE OF GARY G. YASHKO, LLC 611 Gradall Court Powell, Ohio 43065 Delaware County, Case No. 21 CAE 01 0002 3
Wise, J.
{¶1} Appellant Michael Gemperline appeals from the December 15, 2020
Judgment Entry by the Delaware County Court of Common Pleas. Appellees are
Domenico Franano, Kerry Daly, William Houk, Gary R. Johnson, Susan Miceli, and
Rebecca Mount. The relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On January 1, 2018, Appellant took office as a Trustee for Liberty Township.
{¶3} In October of 2018, Appellant voted to request an EMS proposal from
Delaware County to replace the township EMS.
{¶4} In 2019, Appellees, which opposed the plan, gathered signatures for a
petition to remove him from office allegedly making statements that Appellant wanted to
replace Liberty Township EMS with Delaware County services, that “Liberty Township
EMS will be harmed,” and “people will die” because of Appellant’s plan.
{¶5} On July 2, 2019, pursuant to R.C. 3.07 and 3.08, a removal complaint was
filed in the Delaware County Court of Common Pleas. The complaint alleges that
Appellant was in favor of replacing Liberty Township EMS with Delaware County EMS.
Appellant denies this was his plan, and that another Trustee, Shyra Eichhorn, falsely
attributed this plan to Appellant.
{¶6} In August of 2019, Appellees’ removal complaint was voluntarily dismissed
via stipulation.
{¶7} On March 30, 2020, Appellant filed a complaint in the Delaware County
Common Pleas Court against Appellees. Delaware County, Case No. 21 CAE 01 0002 4
{¶8} On September 18, 2020, Appellant filed an amended complaint alleging:
abuse of process, intentional infliction of emotional distress, and defamation.
{¶9} On October 1, 2020, Appellees filed a Motion to Dismiss the Amended
Complaint. Appellant did not file a motion in opposition.
{¶10} On December 15, 2020, the trial court issued a Judgment Entry granting
Appellee’s Motion to Dismiss.
ASSIGNMENT OF ERROR
{¶11} On January 4, 2021, Appellant filed a notice of appeal raising the following
three Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED BY GRANTING A 12(b)(1)[sic] MOTION TO
DISMISS TO DEFENDANT-APPELLEES [sic] ON THE GROUND THAT THE
PLAINTIFF-APPELLANT’S COMPLAINT FAILED TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED ON COUNT 1: ABUSE OF PROCESS.
{¶13} “II. THE TRIAL COURT ERRED BY GRANTING A 12(b)(1)[sic] MOTION
TO DISMISS TO DEFENDANT-APPELLEES [sic] ON THE GROUND THAT THE
PLAINTIFF-APPELLANT’S COMPLAINT FAILED TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED ON COUNT 2: INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
{¶14} “III. THE TRIAL COURT ERRED BY GRANTING A 12(b)(1)[sic] MOTION
TO DISMISS TO DEFENDANT-APPELLEES [sic] ON THE GROUND THAT THE
PLAINTIFF-APPELLANT’S COMPLAINT FAILED TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED ON COUNT 3: DEFAMATION.” Delaware County, Case No. 21 CAE 01 0002 5
a. Noerr-Pennington doctrine
{¶15} As the trial court mentioned the Noerr-Pennington doctrine may apply in this
situation, they specifically did not decide that issue. Therefore, we will not rule on the
applicability of the Noerr-Pennington doctrine to the case at bar until the trial court has
considered it.
b. Standard of Review
{¶16} This Court reviews judgments on a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief can be granted under a de novo standard.
Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 229, 551
N.E.2d 981; Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814
N.E.2d 44, ¶5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which
relief can be granted is procedural and tests the sufficiency of the complaint. State ex
rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992), citing Assn. for the Defense of the Washington Local School Dist. v. Kiger, 42
Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss, a trial
court may not rely on allegations or evidence outside of the complaint. State ex rel.
Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the trial
court may review only the complaint and may dismiss the case only if it appears beyond
a doubt the plaintiff can prove no set of facts entitling the plaintiff to recover. O’Brien v.
Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus. Unsupported conclusions of a complaint are not sufficient to withstand a motion
to dismiss. Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 198, 59 O.O.2d 196, 197,
283 N.E.2d 175, 176. Delaware County, Case No. 21 CAE 01 0002 6
I.
{¶17} In Appellant’s First Assignment of error, Appellant argues that the trial court
erred by granting Appellees’ 12(b)(6) Motion to Dismiss on Appellant’s abuse of process
claim. We agree.
{¶18} In order to assert a claim of abuse of process a plaintiff must allege the
following:
(1) [A] legal proceeding has been set in motion in proper form and
with probable cause;
(2) [T]he proceeding has been perverted to attempt to accomplish an
ulterior purpose for which it was not designed; and
(3) [D]irect damage has resulted from the wrongful use of process.
Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d
294, 298, 626 N.E.2d 115.
{¶19} Simply, abuse of process occurs where someone attempts to achieve
through the use of the court that which the court is itself powerless to order.” Robb v.
Chagrin Lagoons Yacht Club (1996), 75 Ohio St.3d 264, 271, 662 N.E.2d 9. “In an abuse
of process case, ‘the improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as the surrender
of property or the payment of money, by the use of the process as a threat or a club.’”
Id. “Abuse of process does not lie for the wrongful bringing of an action, but for the
improper use, or ‘abuse,’ of process.” Clermont Environmental Reclamation Co. v.
Hancock, 16 Ohio App.3d 9, 11, 474 N.E.2d 357 (12th Dist. 1984). Delaware County, Case No. 21 CAE 01 0002 7
{¶20} It is undisputed in this case that the legal action initiated by Appellees was
brought in proper form and with probable cause. However, on appeal, Appellant asserts
that the trial court erred by dismissing the amended complaint for failing to state a claim
upon which relief can be granted. In support, Appellant argues in the Amended
Complaint the proceeding was brought to damage Appellant in terms of his finances,
morale, and reputation, to do maximum damage to Appellant during an upcoming
election, and intimidating Appellant to becoming a political ally. “[O]n appeal, we must
analyze whether the complaint sets forth sufficient facts to demonstrate that Appellees
initiated legal action in this case in order to ‘accomplish an ulterior purpose for which [the
action] was not designed.’” Sullivan v. Tuschman, 6th Dist. Lucas No. L-06-1373, 2007-
Ohio-3569, ¶13 quoting Yaklevich, supra.
{¶21} In the case sub judice, the trial court ruled Appellant’s Amended Complaint
fails as a matter of law for two reasons. First, the trial court held the Appellant failed to
allege a further act in the use of the process not proper in the regular conduct of the
proceeding as required by Hubbard v. AASE Sales, LLC. In Hubbard, this Court found
that “there was no evidence of ‘a further act in the use of process not proper in the regular
conduct of the proceeding.” Hubbard v. AASE Sales, LLC, 5th Dist. No. 17CAE070051,
2018-Ohio-2363, 104 N.E.3d 1027, ¶38 quoting Clermont Environmental Reclamation,
supra, at 11, 474 N.E.2d 357. However, Hubbard can be distinguished from the case at
bar. In Hubbard, the plaintiff appealed a directed verdict. Id. In the case sub judice,
Appellant is appealing a Civ.R. 12(B)(6) motion to dismiss for failing to state a claim upon
which relief can be granted. The difference between a directed verdict motion and a
Civ.R. 12(B)(6) motion is procedural. Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 95, Delaware County, Case No. 21 CAE 01 0002 8
551 N.E.2d 172, 174 (1990). A Civ.R. 12(B)(6) is made, heard, and ruled on before the
trial begins. Id. A motion for a directed verdict motion is made at trial after the evidence
has been admitted. Id. In the case sub judice, Appellant has not had an opportunity to
submit evidence of “a further act in the use of process not proper in the regular conduct
of the proceeding.” Hubbard at ¶38. Appellant has many discovery options for exposing
the precise facts upon which allegations in the complaint are based and, if the pleadings
are indeed a sham, Appellees may move for summary judgment pursuant to Civ.R. 56.
Clermont Environmental Reclamation at 13. Though evidence of a further act in the use
of process not proper in the regular conduct of the proceeding is necessary to prove the
proceeding has been perverted to attempt to accomplish an ulterior purpose for which it
was not designed, to survive a Civ.R. 12(B)(6) motion to dismiss a plaintiff need not
allege how the process was abused in detail. Clermont Environmental Reclamation at
12.
{¶22} The trial court also ruled the abuse of process failed because Appellant did
not provide allegations beyond mere “labels and conclusions” as required by Fink v.
Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 94519, 2010-Ohio-5486, ¶24.
“[A] formulaic recitation of the elements of a cause of action will not do.” Id. We have
previously held:
Under the notice pleadings requirements of Civ.R. 8(A)(1), the
plaintiff only needs to plead sufficient, operative facts to support recovery
under his claims. Doe v. Robinson, 6th Dist. No. 1-07-1051, 2007-Ohio-
5746, 2007 WL 3120279, ¶17. Nevertheless, to constitute fair notice, the
complaint must still allege sufficient underlying facts that relate to and Delaware County, Case No. 21 CAE 01 0002 9
support the alleged claim, and may not simply state legal conclusions. See
DeVore v. Mut. of Omaha Ins. Co., 32 Ohio App.2d 36, 38, 288 N.E.2d 202
(7th Dist. 1972).
Grossniklaus v. Waltman, 5th Dist. Holmes No. 09CA15, 2010-Ohio-
2937, ¶26.
{¶23} However, in the case sub judice, Appellant alleges the elements of abuse
of process and specific facts which constituted those elements. Appellant’s Amended
Complaint, which attempted to lay out an abuse-of-process claim against Appellees,
contained the following pertinent allegations:
22. Defendants were unhappy that Gemperline would not become a
political ally of theirs and that he continued to resist their political goals.
Therefore, Defendants conspired, around this time, to do lifelong
reputational damage to Gemperline.
…
24. Defendants consulted with a prominent law firm in Columbus,
Ohio to determine whether Gemperline would have to personally pay to
defend himself in such an action, or whether such an action would be
covered by Liberty Township’s liability insurance. This is because
defendants were seeking to damage Plaintiff Gemperline financially. They
did not intend to go forward with the Section 3.07 action unless Gemperline
had to pay for his own defense. Defendants hoped to bankrupt and abuse
Gemperline by imposing a legal cost on Gemperline that he could not bear.
… Delaware County, Case No. 21 CAE 01 0002 10
28. The Defendants’ effort culminated on July 2, 2019, when the
Complaint, with the petitions attached, was filed in the Delaware County
Court of Common Pleas for Forfeiture of and Removal from office
(hereinafter “Removal Complaint”) of Michael Gemperline. Case 19 CV H
07 0369. Visiting Judge Guy Reece was assigned to the case.
31. Defendant Committee members exercised a malicious intent in
filing the untrue and malicious claims and using this filing as a weapon to
damage Gemperline in terms of his finances, morale, and reputation.
33. The filing of the Complaint was timed so as to do maximum
damage to Gemperline and anyone associated with him, during an
upcoming election.
35. The Defendants distributed copies of the Complaint and had
other distribute it for them at their behest – often accompanied by
defamatory statements.
38. Soon after, Defendants in this case, stated publicly on social
media, that they (paraphrased) “accomplished their goals” when the
subsequent lawsuit (filed in conjunction with the removal petition) was
dropped by the petitioners. This despite the fact that the case was dropped, Delaware County, Case No. 21 CAE 01 0002 11
with prejudice, without settlement or any change in the procedure or actual
facts of the case – on the day of trial.
44. Plaintiff incorporates the preceding paragraphs as if fully
rewritten herein.
45. Defendants filed a civil lawsuit in this court with the ulterior motive
of harming Gemperline’s reputation, bankrupting him, intimidating him, and
harassing him. Defendants were motivated by personal animus and political
differences rather than a desire to effectuate the purpose of section 3.07.
46. Appellee Committee members’ Complaint to Remove [Appellant]
constitutes an abuse of process because the facts, as state [sic] establish:
(1) a legal proceeding was set in motion in proper form and with probable
cause in the form of the removal Complaint filed with this Court; (2)
Defendants perverted the legal process to remove Gemperline to attempt
to accomplish an ulterior purpose for which that process was not designed;
and (3) Defendants directly damaged Plaintiff Gemperline as a result of the
wrongful use of process.
47. R.C. 3.07 sets forth the process to remove a public official,
saying, “Any person … who willfully and flagrantly exercises authority or
power not authorized by law, refuses or willfully neglects to enforce the law
or to perform any official duty imposed upon him by law, or is guilty of gross
neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance,
or nonfeasance is guilty of misconduct in office.” Delaware County, Case No. 21 CAE 01 0002 12
48. Gemperline denies any wrongdoing that would give rise to
removal under section 3.07…
49. Defendants set this process in motion, abused it as a tool for
reputational and financial harm, for reasons related to personal animus
and/or political differences of opinion. This is an abuse of the section 3.07
process.
50. As a direct and proximate result of Defendants’ willful and
malicious acts in abusing the civil process of this Court, Plaintiff has suffered
economic damages and non-economic damages, including damage to
reputation, emotional distress and loss of the enjoyment of life.
(Amended Complaint, ¶22-50).
{¶24} The record demonstrates that the amended complaint alleges that the legal
process was proper in form and with probable cause; that Appellees attempted to pervert
the process in an attempt to accomplish an ulterior purpose for which it was not designed
(attempting to influence an election, force Appellant to become a political ally, and
attempt to ruin Appellant’s reputation and finances), and that Appellant sustained
damages as a result of the wrongful use of process. Accordingly, we find the trial court
erred in granting Appellee’s motion to dismiss for failure to state a claim upon which relief
can be granted.
{¶25} Appellant’s First Assignment of Error is sustained. Delaware County, Case No. 21 CAE 01 0002 13
II.
{¶26} In Appellant’s Second Assignment of Error, Appellant argues that the trial
court erred by granting Appellee’s 12(b)(6) Motion to Dismiss on Appellant’s intentional
infliction of emotional distress claim. We disagree.
{¶27} In order to assert a claim of intentional infliction of emotional distress a
plaintiff must allege the following:
(1) [T]he defendant intended to cause, or knew or should have known
that his actions would result in serious emotional distress;
(2) [T]he defendant’s conduct was so extreme and outrageous that it
went beyond all possible bounds of decency and can be considered
completely intolerable in a civilized community;
(3) [T]he defendant’s actions proximately caused psychological
injury to the plaintiff; and
(4) [T]he plaintiff suffered serious mental anguish of a nature no
reasonable person could be expected to endure.
Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 366, 588
N.E.2d 280.
{¶28} Again, the notice pleading requirements of Civ.R. 8(A)(1), the plaintiff only
needs to plead sufficient, operative facts to support recovery under his claims.
Grossniklaus v. Waltman, 5th Dist. Holmes No. 09CA15, 2010-Ohio-2937, ¶26 citing Doe
v. Robinson, 6th Dist. Lucas No. L-07-1051, 2007-Ohio-5746, ¶17. To constitute fair
notice, the complaint must allege sufficient underlying facts that relate to and support the Delaware County, Case No. 21 CAE 01 0002 14
alleged claim, and may not simply state legal conclusions. See DeVore v. Mut. of Omaha
Ins. Co., 32 Ohio App.2d 36, 38, 288 N.E.2d 202 (1972).
{¶29} In the case sub judice, Appellant’s Amended Complaint contains
unsupported conclusions that as a result of the Appellees’ actions, Appellant suffered
“severe emotional distress and physical health problems”, but does not allege any facts
sufficient to show that Appellant’s emotional distress and unspecified physical health
problems were serious mental anguish of a nature no reasonable person could be
expected to endure. These unsupported conclusions of a complaint are not sufficient to
withstand a motion to dismiss. Phelps v. Office of the Attorney General, 10th Dist. Franklin
No. 06AP-751, 2007-Ohio-14, ¶4 citing State ex rel. Seikbert v. Wilkinson (1994), 69
Ohio St.3d 489.
{¶30} Accordingly, we find the trial court did not err in granting Appellees’ Motion
to Dismiss Count 2: Intentional Infliction of Emotional Distress.
{¶31} Appellant’s Second Assignment of Error is overruled.
III.
{¶32} In Appellant’s Third Assignment of Error, Appellant argues that the trial court
erred by granting Appellees’ 12(b)(6) Motion to Dismiss on Appellant’s defamation claim.
We disagree.
{¶33} To state a claim for defamation, Appellant must allege:
(1) a false statement of fact was made about the plaintiff; (2) the
statement was defamatory; (3) the statement was published; (4) the plaintiff
suffered injury as a proximate result of the publication and (5) the defendant
acted with the requisite degree of fault in publishing the statement. Am. Delaware County, Case No. 21 CAE 01 0002 15
Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978
N.E.2d 832. A defamatory statement is the unprivileged publication of false
and defamatory matter that tends to reflect injuriously on a person’s
reputation, or exposes a person to ‘public hatred, contempt, ridicule, shame
or disgrace, or affecting a person adversely in his trade, business, or
profession.’” A & B – Abell Elevator v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995).
Jamison v. Galena, 5th Dist. No. 15 CAE 01 007, 2015-Ohio-2845,
38 N.E.3d 1176, ¶52.
{¶34} The United States Supreme Court has held that the United States
Constitution requires that a public official may not recover damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was made
with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964). Actual malice means that the statement was made with knowledge
of falsity or a reckless disregard of the truth. Jacobs v. Frank, 60 Ohio St.3d 111, 573
N.E.2d 609 (1991). “Reckless disregard” applies when a publisher of defamatory
statements acts with a “high degree of awareness of their probable falsity” or when the
publisher “in face entertained serious doubts as to the truth of this publication.” Spitzer
v. Knapp, 5th Dist. Delaware No. 19 CAE 01 0006, 2019-Ohio-2770, ¶40 citing St. Amant
v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed. 262 (1969). Actual malice “must be
proven with convincing clarity that defendant was aware of the high probability of falsity.”
Jacobs v. Budak, 11th Dist. Trumbull No. 2007-T-0033, 2008-Ohio-2756, ¶64 quoting A
& B-Abell Elevator Co. v. Columbus/cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio Delaware County, Case No. 21 CAE 01 0002 16
St.3d 1, 13, 651 N.E.2d 1283 (1995) citing Jacobs v. Frank, 60 Ohio St.3d 111, 118-119,
573 N.E.2d 609 (1991). An Appellant must establish in the complaint that the defendant
acted with actual malice in the Appellant’s complaint. Murray v. Chagrin Valley
Publishing Co., 2014-Ohio-5442, 25 N.E.3d 1111, ¶30 (8th Dist.).
{¶35} To qualify as a public official Appellant must “have, or appear to have,
substantial responsibility or control over public affairs, and his position must have such
apparent importance that the public has an independent interest in the qualifications and
performance of the person who holds it, beyond the general public interest in the
qualifications and performance of all government employees.” Rosenblatt v. Baer, 383
U.S. 75, 86 (1966).
{¶36} Because this case is an action based on the defamation of a public official,
it was not enough for Appellant to show Appellees’ statements were false, but was
required to show with convincing clarity that Appellees were aware of the high probability
of falsity when they published the defamatory statements. However, Appellant’s
Complaint fails to provide specific facts which show Appellees were aware of the high
probability of falsity when they published the defamatory statements. To the contrary,
Appellant’s Complaint alleges the Appellees’ statements were based on his vote to
request a proposal to replace the township EMS with the Delaware County EMS and
also statements made by another township trustee, Shyra Eichhorn. Further, Appellant
only provides a single conclusory allegation, “[t]he statements referred to above were
demonstrably false and Defendants knew it.” Amended Complaint ¶14. Appellant failed
to allege any facts to show Appellees acted with actual malice as required by New York
Times Co. v. Sullivan. Delaware County, Case No. 21 CAE 01 0002 17
{¶37} Accordingly, we find the trial court did not err in granting Appellees’ Motion
to Dismiss Count 3: Defamation.
{¶38} Appellant’s Third Assignment of Error is overruled.
{¶39} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed in part and reversed in part. This matter is remanded
for further proceedings consistent with this opinion.
By: Wise, J.
Baldwin, P. J., and
Gwin, J., concur.
JWW/br 0707