[Cite as Howard v. Meat City, Inc., 2016-Ohio-7989.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
WILLA HOWARD, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-16-32
v.
MEAT CITY, INC., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV20150459
Judgment Affirmed
Date of Decision: December 5, 2016
APPEARANCES:
Michael D. Portnoy for Appellants
Stephen F. Korhn for Appellees, Meat City, Inc. and Paul G. Hahn, Jr., Living Trust
Steven A. Keslar for Appellee, Fritchie Asphalt & Paving Company Case No. 1-16-32
PRESTON, J.
{¶1} Plaintiffs-appellants, Willa (“Willa”) and Mose Howard (collectively,
the “Howards”), appeal the June 3, 2016 judgment entry of the Allen County Court
of Common Pleas granting summary judgment in favor of defendants-appellees,
Meat City, Inc. (“Meat City”), Paul G. Hahn, Jr. Living Trust (“Trust”), and Fritchie
Asphalt & Paving Company (“Fritchie”). For the reasons that follow, we affirm.
{¶2} This case stems from injuries Willa sustained when she stepped in a
hole in the asphalt and fell in the parking lot of Meat City, a grocery and
convenience store in Lima, Ohio. The Howards filed a complaint on July 31, 2015
against Meat City and Fritchie for negligence and loss of consortium.1 (Doc. No.
1). Fritchie filed its answer on August 18, 2015. (Doc. No. 4). Meat City filed its
answer and a cross-claim against Fritchie on August 26, 2015. (Doc. No. 6).
Fritchie filed its answer to Meat City’s cross-claim on September 10, 2015. (Doc.
No. 11). Fritchie filed a motion for summary judgment as to the Howards’ claims
and Meat City’s cross-claim. (Doc. No. 24).
{¶3} On February 29, 2016, the Howards filed an amended complaint,2
adding the Trust as a party and alleging that the Trust “is the private non business
1 The Howards alleged that Meat City and Fritchie “had a contract * * * whereby Fritchie would maintain Meat City’s parking lot on a regular basis and fill in any potholes for the safety of the business invitees of Meat City.” (Doc. No. 1 at 2). 2 The Howards also amended their allegation as to the purported contract between Meat City and Fritchie. They alleged in the amended complaint that Meat City and Fritchie “had a contract * * * whereby Fritchie would provide patchwork to Meat City’s parking lots, by filling in any potholes for the safety of the business invitees of Meat City.” (Doc. No. 29 at 2).
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[sic] owner of the property where Meat City is located.” (Doc. Nos. 29, 30, 32). On
March 9, 2016, Meat City filed its answer to the amended complaint and a cross-
claim against Fritchie. (Doc. No. 34). On March 11 and 21, 2016, Fritchie and the
Trust, respectively, filed their answers. (Doc. Nos. 36, 39).
{¶4} On March 15, 2016, Meat City filed a motion for summary judgment
on the Howards’ claims. (Doc. No. 37). On March 25, 2016, the Trust filed a
motion for summary judgment on the Howards’ claims. (Doc. No. 41). On May 3,
2016, the Howards filed a memorandum in opposition to Meat City’s and Fritchie’s
motions for summary judgment. (Doc. No. 49). On May 9 and 12, 2016, Meat City
and Fritchie, respectively, filed reply memorandums in support of their motions for
summary judgment. (Doc. Nos. 54, 56).
{¶5} On June 3, 2016, the trial court filed the judgment entry that is the
subject of this appeal, granting summary judgment in favor of the defendants and
against the Howards. (Doc. No. 59). In its judgment entry, the trial court concluded
that “there is no genuine issue of material fact that the pothole was open and obvious
and there were no attendant circumstances.” (Id. at 8). The trial court dismissed
the Howards’ amended complaint and Meat City’s cross-claim against Fritchie. (Id.
at 9).
{¶6} On July 1, 2016, the Howards filed their notice of appeal. (Doc. No.
61). They raise two assignments of error, which we will address together.
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Assignment of Error No. I
Summary judgment was in error because there are genuine issues of material fact regarding the defendants’ breaching their duties owed to appellant.
Assignment of Error No. II
Defendants are not entitled to judgment as a matter of law regarding the attendant circumstances doctrine and the open and obvious doctrine.
{¶7} In their first assignment of error, the Howards argue that a genuine issue
of material fact exists concerning whether the hole in the parking lot was open and
obvious and that the trial court “failed to address the duty of care owed to Mrs.
Howard by Fritchie pursuant to the contract between Fritchie and Meat City for
parking lot repairs.” (Appellant’s Brief at 5). In their second assignment of error,
the Howards argue that the trial court misapplied the attendant-circumstances
doctrine in concluding that no attendant circumstance created a genuine issue of
material fact as to whether the hole was open and obvious.
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
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is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶9} “‘[I]n order to establish actionable negligence, one seeking recovery
must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.’” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-
4467, ¶ 14, quoting Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). “At
common law, the legal duty owed by a landowner to one who enters upon his land
was contingent upon the status of the entrant: trespasser, licensee, or invitee.” Id.,
citing Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417
(1994). The parties do not dispute the trial court’s classification of Willa as a
business invitee of Meat City.3
{¶10} “A shopkeeper ordinarily owes its business invitees a duty of ordinary
care in maintaining the premises in a reasonably safe condition and has the duty to
warn its invitees of latent or hidden dangers.” Armstrong v. Best Buy Co., Inc., 99
Ohio St.3d 79, 2003-Ohio-2573, ¶ 5, citing Paschal v. Rite Aid Pharmacy, Inc., 18
Ohio St.3d 203 (1985) and Jackson v. Kings Island, 58 Ohio St.2d 357 (1979).
3 “‘Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner.’” Carnes at ¶ 14, quoting Neumeier v. Lima, 3d Dist. Allen No. 1-05-23, 2005-Ohio-5376, ¶ 13, quoting Light v. Ohio University, 28 Ohio St.3d 66, 68 (1986).
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“However, this duty does not require landowners to insure the safety of invitees on
their property.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-
2495, ¶ 11. “[T]he open-and-obvious doctrine obviates the duty to warn and acts as
a complete bar to any negligence claims.” Armstrong at ¶ 5. “The ‘open and
obvious’ doctrine states that an owner or occupier of property owes no duty to warn
invitees entering the property of open and obvious dangers on the property.”
Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992).
{¶11} “In general, ‘[o]pen-and-obvious dangers are those not hidden,
concealed from view, or undiscoverable upon ordinary inspection[.]’” Shipman v.
Papa John’s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 22, quoting
Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP-612,
2011-Ohio-2270, ¶ 12. “However, an individual ‘does not need to observe the
dangerous condition for it to be an “open-and-obvious” condition under the law;
rather, the determinative issue is whether the condition is observable.’” Id., quoting
Thompson at ¶ 12. “Thus, ‘[e]ven in cases where the plaintiff did not actually notice
the condition until after he or she fell, [courts have] found no duty where the plaintiff
could have seen the condition if he or she had looked.’” Id., quoting Thompson at
¶ 12.
{¶12} “In most situations, whether a danger is open and obvious presents a
question of law.” Carnes, 2011-Ohio-4467, at ¶ 16, citing Lang v. Holly Hill Motel,
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4th Dist. Jackson No. 06CA18, 2007-Ohio-3898, ¶ 23, citing Hallowell v. Athens,
4th Dist. Athens No. 03CA29, 2004-Ohio-4257, ¶ 21 and Nageotte v. Cafaro Co.,
160 Ohio App.3d 702, 2005-Ohio-2098, ¶ 28 (6th Dist.). “There may, however, be
situations where disputed facts may exist regarding the openness and obviousness
of a hazard, possibly creating an issue of material fact.” Id., citing Ray v. Wal-Mart
Stores, Inc., 4th Dist. No. 08CA41, 2009-Ohio-4542, ¶ 29 and Lang at ¶ 23. For
example, the existence of “attendant circumstances” may create an issue of material
fact. Id.
{¶13} “Attendant circumstances may exist which distract an individual from
exercising the degree of care an ordinary person would have exercised to avoid the
danger.” Id. at ¶ 17, citing Aycock v. Sandy Valley Church of God, 5th Dist.
Tuscarawas No. 2006 AP 09 0054, 2008-Ohio-105, ¶ 26, citing McGuire v. Sears,
Roebuck & Co., 118 Ohio App.3d 494, 499 (1st Dist.1996). “An attendant
circumstance is usually an active event as opposed to a static condition.” Id. This
court recognized that an “attendant circumstance” is defined as:
“a factor that contributes to the fall and is beyond the control of the
injured party. * * * The phrase refers to all facts relating to the event,
such as time, place, surroundings or background and the conditions
normally existing that would unreasonably increase the normal risk of
a harmful result of the event. * * * However, ‘[b]oth circumstances
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contributing to and those reducing the risk of the defect must be
considered.’”
Williams v. Lowe’s of Bellefontaine, 3d Dist. Logan No. 8-06-25, 2007-Ohio-2045,
¶ 18, quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. Franklin
No. 02AP1211, 2003-Ohio-2890, ¶ 17, quoting Sack v. Skyline Chili, Inc., 12th Dist.
Warren No. CA2002-09-101, 2003-Ohio-2226, ¶ 20.
{¶14} “To serve as an exception to the open and obvious doctrine, an
attendant circumstance must be ‘so abnormal that it unreasonably increased the
normal risk of a harmful result or reduced the degree of care an ordinary person
would exercise.’” Shipman, 2014-Ohio-5092, at ¶ 29, quoting Mayle v. Ohio Dept.
of Rehab. & Corr., 10th Dist. Franklin No. 09AP-541, 2010-Ohio-2774, ¶ 20.
“‘[A]ttendant circumstances are facts that significantly enhance the danger of the
hazard.’” Id., quoting Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290,
2012-Ohio-670, ¶ 10. “Furthermore, the attendant circumstance must be an
‘“unusual circumstance of the property owner’s making.”’” Id., quoting Haller at ¶
10, quoting McConnell v. Margello, 10th Dist. Franklin No. 06AP-1235, 2007-
Ohio-4860, ¶ 17. “‘Attendant circumstances do not, though, include regularly
encountered, ordinary, or common circumstances.’” Id., quoting Colville v. Meijer
Stores Ltd. Partnership, 2d Dist. Miami No. 2011-CA-011, 2012-Ohio-2413, ¶ 30.
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{¶15} We will first address whether the hazard in this case was open and
obvious. Then we will address the Howards’ attendant-circumstances argument.
Finally, we will address whether Fritchie owed a duty of care to Willa. Construing
the evidence in a light most favorable to the Howards, we first conclude that the
open-and-obvious doctrine obviated any duty owed to Willa. There is no genuine
issue of material fact that the hole4 in the parking lot in this case was so obvious and
apparent to Meat City’s business invitees that they were reasonably expected to
discover it and protect themselves against it. Willa testified in her deposition that
she frequented Meat City an average of two to three times a week over the two years
up to the date that she fell. (Doc. No. 26, Willa Howard Deposition (“Willa Depo.”),
at 17, 27). In her visits to Meat City, she noticed “holes” and “potholes” in the
parking lot.5 (Id. at 29-30). When Willa noticed the holes and potholes in the
parking lot, she went around them or did not step in them. (Id. at 30-31).
{¶16} On the day Willa fell in the Meat City parking lot—May 26, 2015—
the weather conditions were clear and sunny. (Id. at 14-16). She could see the
parking lot in front of her as she pulled up to the parking space in the southern
portion of the east parking lot—about three spaces north from the sidewalk running
4 The parties refer to the blemish in the asphalt as a “hole,” “pothole,” and “depression.” The label we place on the blemish is not dispositive to this case. For purposes of this opinion, we will refer to the blemish as a “hole.” 5 Matthew Hahn, president and general manager of Meat City, averred in an affidavit that the Trust is the owner/lessor of the premises, including the business building and the parking lots, at which Meat City is located. (Doc. No. 37, Ex. A, Matthew Hahn Affidavit, ¶ 3). Meat City occupies and controls the premises pursuant to an oral lease. (Id.).
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along Kibby Street. (Id. at 24-25, 107, Defendant’s Exhibit A). (See also Doc. No.
37, Ex. A, Matthew Hahn Affidavit, ¶ 7, 9 (noting that the area where Willa claims
to have fallen is the “southeast” parking lot)). Willa did not notice any of the holes
in the parking lot near her car when she parked and walked into the store. (Willa
Depo. at 35-36, 107). Willa was in Meat City for 10 or 15 minutes buying candy
and perhaps playing the lottery. (Id. at 36). When she exited Meat City, she had in
her hands her purse and a bag containing her candy purchase. (Id. at 38-39). She
was “rushing” as she walked back to her vehicle. (Id.). There was a vehicle parked
near her vehicle, but there “was quite a bit of space” between her vehicle and that
vehicle, and the other vehicle did not distract her in any way. (Id. at 42).
{¶17} As she was about to open the driver door of her vehicle, but before she
opened it, she tripped in a “hole” in the parking lot that “was partially under the car
and then partially outside of not under the car.” (Id. at 43-44, 46-47, 51, 118).
Willa’s right “foot got caught in the hole,” and she fell. (Id. at 48-49). There was
nothing unusual or out of the ordinary going on in the parking lot when she fell, nor
were there any “artificial type of distractions” drawing her attention away from her
vehicle. (Id. at 42, 59). She did not see the hole when she exited her vehicle to go
into the store or when she walked back to her vehicle. (Id. at 44). The hole
“apparently was under [her] door when [she] got out” of her vehicle, and “[t]hat’s
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why [she] didn’t see it” “[w]hen [she] opened [her] door to get out to go in” to Meat
City. (Id. at 114).
{¶18} When asked if she could describe the hole, Willa testified in her
deposition, “I wasn’t looking to see what the hole looked like that I fell in; but, you
know, I saw the hole.” (Id. at 49-50). Willa testified that the hole was about six
inches wide and “[not] that deep either”—“[m]aybe 3 inches,” although she was not
sure. (Id. at 50-56). During her deposition, Willa drew the size of the hole on a
piece of paper, marked as Defendant’s Exhibit B, and the drawing reveals that the
hole was slightly less long that it was wide. (Id. at 50-56, Defendant’s Ex. B).
Counsel for Meat City and the Trust asked Willa whether she could have seen the
hole had she been looking:
[Counsel]: Is it fair to say that if you had been looking in the
direction of where the hole was that you could have seen
that part of the hole that wasn’t under the car?
[Willa]: Well, yeah, I imagine if I had have been looking; but
being that I didn’t see it when I went in there, I mean,
you know, I wasn’t expecting, you know, because I
didn’t fall going in so I wasn’t expecting to fall coming
out. * * * I didn’t see a hole when I was going in, so I
wasn’t expecting it to be there when I came out.
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[Counsel]: You’ve already told me that you were aware from, you
know, in the six months before the day that you fell, you
were aware of some other holes, some of which were
more than 2 to 3 inches deep in the east parking lot.
[Willa]: Yeah. As a matter of fact, everyone knew that Meat
City’s parking lot was full of holes. I mean, you know,
I’ve heard people talk about that.
[Counsel]: In the six months before, which we’ve talked about that
time frame, about how many of these holes do you think
there were in the east parking lot?
[Willa]: I don’t know. I don’t know.
[Counsel]: But there were many?
[Willa]: I can’t say that.
[Counsel]: Okay.
[Willa]: I mean, you know, but I know coming up to the time of
my fall, I knew that there was some pretty bad potholes
out there. It’s hard for me to say how many.
(Id. at 57-58). Counsel for Fritchie also asked Willa whether she could have seen
the hole had she looked at the ground, and Willa responded, “If I had looked down
on the ground, probably.” (Id. at 123). After Willa fell, she got in her vehicle and
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went to Sam’s Club, although she “was in a lot of pain and somewhat disoriented
too.” (Id. at 59-60).
{¶19} Based on Willa’s testimony, there is no genuine issue of material fact
that the hole that caused her to fall was an open-and-obvious danger—that is, the
hole was observable and was not hidden, concealed from view, or undiscoverable.
See Shipman, 2014-Ohio-5092, at ¶ 22. Willa testified in her deposition that she
saw the hole after she fell. (Id. at 49-50). See Shipman at ¶ 24 (“[P]erhaps most
conclusively, Shipman herself testified that after she fell, she looked at the ground
and could clearly observe the cracks in the pavement.”). What is more, by Willa’s
own admission in response to questions from the defendants’ counsel during her
deposition, she could have seen the hole had she looked. (Willa Depo. at 57-58,
123). See Shipman at ¶ 22. In fact, according to Willa, “everyone knew that Meat
City’s parking lot was full of holes.” (Willa Depo. at 57). “The fact that [Willa]
was not looking at the pavement does not alter the condition from being open and
obvious.” Shipman at ¶ 25. See also Williams, 2007-Ohio-2045, at ¶ 16 (“[D]ue to
the open and obvious nature of the hazard, [the plaintiff] was able to avoid the
hazard to protect herself, even if she did not do so.” (Emphasis sic.)). For these
reasons, there is no genuine issue of material fact that the hole was an open and
obvious condition.
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{¶20} We next address whether the existence of an “attendant circumstance”
bars application of the open-and-obvious doctrine. Specifically, the Howards argue
that “the existence of a pothole in the parking lot that was unobservable due to an
open car door was beyond [Willa’s] control and within the control of Defendants
who had a duty to maintain the parking lot and warn of any non-open and obvious
conditions.” (Appellants’ Brief at 8). In other words, the Howards argue, Willa’s
vehicle obstructing the hole was an attendant circumstance that bars application of
the open-and-obvious doctrine. The Howards are incorrect.
{¶21} First, an attendant circumstance must be of the property owner’s
making and beyond the control of the injured party. See Shipman at ¶ 29. Here, the
circumstance—Willa’s vehicle in the parking lot—was created by Willa, not the
defendants. Indeed, it was Willa—not the defendants—who had control of her
vehicle when she entered the Meat City parking lot. Second, even setting aside that
the circumstance was within Willa’s control, to be an attendant circumstance, the
circumstance must be unusual. Id. There is nothing unusual about vehicles entering
and parking on a parking lot of a grocery and convenience store. For these reasons,
as a matter of law, no attendant circumstance bars the application of the open-and-
obvious doctrine.
{¶22} Finally, we address the Howards’ argument that Fritchie owed a duty
of care to Willa “pursuant to the contract between Fritchie and Meat City for parking
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lot repairs.” (Appellants’ Brief at 5). The Howards argue that Fritchie “assumed
the duty to keep the parking lot in repair” and that Fritchie’s “nonperformance of
the duty” created the dangerous condition—namely, the hole on which Willa
tripped. (Id. at 6). According to Matthew Hahn (“Matthew”), the president and
general manager of Meat City, he orders repairs to Meat City’s parking lots “[j]ust
when needed,” based on his personal observations of the parking lots. (Doc. No.
27, Matthew Hahn Depo. (“Hahn Depo.”), at 18, 66-67). Meat City contracted with
Fritchie approximately a week before Willa’s fall to repair potholes on the west
parking lot at Meat City—not the southeast parking lot where Willa fell. (Id. at 13,
15-17). On May 26, 2015—the day of Willa’s fall—Fritchie made those repairs to
the west parking lot. (Id. at 13, 18-20, 54). Also that day, while Fritchie was at
Meat City, Matthew requested that Fritchie patch a pothole in the northeast parking
lot—again, not where Willa fell. (Id.). At that time, Matthew did not request
additional repairs to any other areas of the parking lots. (Id. at 20). After Willa fell,
Matthew called Fritchie to request that it repair the area of the parking lot where he
believed Willa fell. (Id. at 22-23). There was no written contract between Meat
City and Fritchie for the parking-lot repairs. (Id. at 32-33).
{¶23} We conclude that Fritchie owed no duty of care to Willa. “Under the
law of negligence, a defendant’s duty to plaintiff depends upon the relationship
between the parties and the foreseeability of injury to someone in the plaintiff’s
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position.” See Burth v. CPK Constr., Inc., 9th Dist. Summit No. 22713, 2006-Ohio-
70, ¶ 11, citing Huston v. Konieczny, 52 Ohio St.3d 214, 217 (1990). “Injury is
foreseeable if a defendant knew or should have known that its act was likely to result
in harm to someone.” Id., citing Huston at 217. Here, the record is devoid of any
evidence that Fritchie should have foreseen any injury to Willa. Even assuming a
contract between Meat City and Fritchie for repair of the parking lots could create
a duty on the part of Fritchie to Meat City’s customers, there is no evidence that
Meat City hired Fritchie to repair the parking lot where Willa fell. Therefore, there
was no reason for Fritchie to foresee Willa’s alleged injuries. See Burth at ¶ 13
(concluding that there was no reason for contractors performing work at a residence
to foresee injury to a building inspector who fell from a ladder at the residence
because the contractors “were not aware, nor should they have been, that use of the
ladder would result in harm to [the building inspector]”).
{¶24} Even assuming Fritchie owed Willa a duty of care, to the extent the
Howards argue that Fritchie cannot benefit from application of the open-and-
obvious doctrine, we reject that argument. Generally, “an independent contractor
who creates a dangerous condition on real property is not relieved of liability under
the doctrine which exonerates an owner or occupier of land from the duty to warn
those entering the property concerning open and obvious dangers on the property.”
(Emphasis added.) Simmers, 64 Ohio St.3d at 645. However, when there is no
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evidence that the independent contractor created the dangerous condition, the open-
and-obvious doctrine may apply. See Szarka v. Mt. Sinai Med. Ctr., 8th Dist.
Cuyahoga No. 72058, 1997 WL 781733, *3 (Dec. 18, 1997) (“Because Szarka
presented no evidence that Company created the hazardous condition, the ‘open and
obvious’ rule applies to relieve Company of liability for her injuries.”), citing
Krause v. G & C Properties, 8th Dist. Cuyahoga No. 66379, 1994 WL 613769, *3
(Nov. 3, 1994) (“When the independent contractor did not create the condition,
Simmers does not apply and the independent contractor is entitled to the same
immunities as the owner or occupier.”), citing Rinehart v. Fed. Natl. Mtge. Assn.,
91 Ohio App.3d 222, 231 (2d Dist.1993). Here, there is no evidence in the record
that Fritchie created the hazard, whether by act or omission. See Szarka at *3.
Therefore, even assuming Fritchie owed Willa a duty of care as an independent
contractor, the open-and-obvious doctrine can properly be applied to shield it from
liability.
{¶25} We hold that the trial court did not err in granting summary judgment
in favor of the defendants and against the Howards. For the reasons discussed
above, the trial court properly granted summary judgment as to the Howards’
negligence claim against the defendants. Because summary judgment was proper
as to the negligence claim, summary judgment was also proper as to the derivative
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loss-of-consortium claim. See Kenney v. Ables, 5th Dist. Licking No. 15-CA-68,
2016-Ohio-2714, ¶ 20. The Howards’ assignments of error are overruled.
{¶26} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW, P.J. and WILLAMOWSKI, J., concur.
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