[Cite as Lacey v. Lenox Creek Condominium Assn., 2019-Ohio-1984.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 107094
DEBRA K. LACEY PLAINTIFF-APPELLANT
vs.
LENOX CREEK CONDOMINIUM ASSOCIATION, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-880762
BEFORE: Laster Mays, P.J., E.A. Gallagher, J., and Sheehan, J.
RELEASED AND JOURNALIZED: May 23, 2019 ATTORNEYS FOR APPELLANT
Larry S. Klein Christopher J. Carney Klein & Carney Co., L.P.A. 55 Public Square, Suite 1200 Cleveland, OH 44114
Paul W. Flowers Louis E. Grube Paul W. Flowers Co., L.P.A. Terminal Tower, Suite 1910 50 Public Square Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Robert J. Koeth Gallagher Sharp, L.L.P. 1501 Euclid Avenue, 6th Floor Cleveland, OH 44115
Ann E. Leo Koeth Rice & Leo Co., L.P.A. 1280 West Third Street Cleveland, OH 44113
Michael Edward Lyford Law Offices of John V. Rasmussen 6060 Rockside Woods Blvd., Suite 131 Independence, OH 44131 ANITA LASTER MAYS, P.J.:
{¶1} Plaintiff-appellant Debra K. Lacey (“Lacey”) appeals the trial court’s grant
of summary judgment in favor of defendants-appellees, Lenox Creek Condominium
Association, Inc. (“Lenox”) and Western Reserve Property Management (“Reserve”) in a
trip-and-fall personal injury case. We affirm the trial court’s judgment.
I. Background and Facts
{¶2} For more than two years, Lacey resided in a condominium unit rented from
defendants Donald and Anna Walencey. Lenox owned the complex, and Reserve served
as the property manager.
{¶3} On October 9, 2016, between 3:00 p.m. and 4:00 p.m., Lacey was walking
her two dogs on separate four-to-six-foot-long leashes around the complex parking lot.
Lacey observed her friend Roberta Mitchell (“Mitchell”) drive up to the complex mailbox
banks located about 50 feet ahead of her. Lacey’s attention was focused on Mitchell
when she stepped into a pothole in the parking lot. Lacey required surgery for a torn left
medial meniscus and developed deep vein thrombosis as a result of the procedure.
Lacey had never fallen in the parking lot before.
{¶4} On May 23, 2017, Lacey filed a premises liability negligence action against
the Walenceys,1 Lenox, and Reserve. On February 23, 2018, after the discovery period
The Walenceys were dismissed without prejudice and are not parties to this appeal. Their 1
cross-claim for indemnification against the other defendants became moot upon the dismissal and the trial court’s finding in favor of appellees. “A judgment for the defendant in a civil action, which judgment renders the defendant’s third-party complaint for indemnification or contribution moot, is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a concluded, appellees moved for summary judgment on the grounds that the pothole was
open and obvious and there were no attendant circumstances that would serve as an
exception to the open-and-obvious doctrine. Lacey responded on March 8, 2018, and
appellees replied on March 15, 2018.
{¶5} On April 5, 2018, the trial court granted the motion. The trial court held
“[t]he pothole in the parking lot was open and obvious and no attendant circumstances
that would warrant an exception were present.” Journal Entry No. 103255783 (Apr. 5,
2018), citing Seifert v. Great N. Shopping Ctr., 8th Dist. Cuyahoga No. 74439, 1998 Ohio
App. LEXIS 5308 (Nov. 5, 1998). This appeal ensued.
II. Assignment of Error
{¶6} The sole assignment of error before this court is that the trial court erred as
a matter of law by granting summary judgment in favor of appellees. Lacey argues that
genuine issues of material fact exist regarding whether: (1) the condition was open and
obvious, (2) Reserve, as the property manager, has standing to assert the
open-and-obvious defense, and (3) attendant circumstances were present that precluded
application of the open-and-obvious doctrine in this case.
III. Standard of Review
{¶7} We review a trial court’s entry of summary judgment de novo, using the
same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
judgment.” Wise v. Gursky, 66 Ohio St.2d 241, 242, 421 N.E.2d 150 (1981). See also Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989). 671 N.E.2d 241 (1996). Summary judgment may only be granted when the following
are 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 but
one conclusion, and the conclusion is adverse to the party against whom the motion for
summary judgment is made, who is entitled to have the evidence construed most strongly
in its favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d
46 (1978); Civ.R. 56(C).
{¶8} The party moving for summary judgment bears the initial burden of
apprising the trial court of the basis of its motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on an essential
element of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). “Once the moving party meets its burden, the burden shifts to the
nonmoving party to set forth specific facts demonstrating a genuine issue of material fact
exists.” Willow Grove, Ltd. v. Olmsted Twp., 2015-Ohio-2702, 38 N.E.3d 1133, ¶ 14-15
(8th Dist.), citing Dresher. “To satisfy this burden, the nonmoving party must submit
evidentiary materials showing a genuine dispute over material facts.” Willow Grove at ¶
15, citing PNC Bank v. Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.
IV. Discussion
A. Open-and-Obvious Doctrine
{¶9} To overcome summary judgment in this case, Lacey must establish that
genuine issues of material fact exist regarding whether: (1) appellees owed Lacey a duty of care; (2) appellees breached the duty; and (3) the breach was the proximate cause of
Lacey’s injury. Bounds v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610,
2008-Ohio-5989, ¶ 10, citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81
Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).
{¶10} “Whether a duty [of care] exists is a question of law for the court to
determine.” Bounds at ¶ 10, citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544
N.E.2d 265 (1989). There can be no legal liability in the absence of establishing the
existence of a duty. Bounds at ¶ 10, citing Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539
N.E.2d 614 (1989). The “analysis ends and no further inquiry is necessary.” Bounds at
¶ 10, citing Gedeon v. E. Ohio Gas Co., 128 Ohio St. 335, 338, 190 N.E. 924 (1934).
{¶11} A landowner’s duty to those entering their land varies depending on
whether the individual is a trespasser, licensee, or business invitee. There is no duty
owed to a licensee or trespasser “except to refrain from willful, wanton, or reckless
conduct that is likely to” cause injury. Skowronski v. Waterford Crossing Homeowners’
Assn., 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, ¶ 11, citing Bae v. Dragoo &
Assocs., Inc., 156 Ohio App.3d 103, 2004-Ohio-544, 804 N.E.2d 1007 (10th Dist.).
{¶12} The parties agree that Lacey was a business invitee at the complex.
Appellees’ responsibility to Lacey as a business invitee was to exercise “ordinary care in
maintaining the premises in a reasonably safe condition and has the duty to warn its
invitees of latent or hidden dangers.” Carlo v. Kohl’s Dept. Stores, Inc., 8th Dist. Cuyahoga No. 105725, 2017-Ohio-8173, ¶ 8, citing Paschal v. Rite Aid Pharmacy, Inc.,
18 Ohio St.3d 203, 480 N.E.2d 474 (1985).
{¶13} “A premises owner is obligated to warn invitees of latent or concealed
dangers if the owner knows, or has reason to know, of hidden dangers.” Id., citing
Rogers v. Sears, Roebuck & Co., 1st Dist. Hamilton No. C-010717, 2002-Ohio-3304.
Summary judgment may be granted “[w]here a hazard is not hidden from view or
concealed and is discoverable by ordinary inspection.” Id., citing Parsons v. Lawson
Co., 57 Ohio App.3d 49, 566 N.E.2d 698 (5th Dist.1989). A business owner has no duty
to warn of open-and-obvious dangers, acting as a complete bar to a claim of negligence.
Skowronski at ¶ 21, citing Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573,
788 N.E.2d 1088.
{¶14} Further,
[w]here reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine. Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-1306. A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not as a matter of law required to look constantly downward. Swiger v. Kohl’s Dept. Store, Inc., 191 Ohio App.3d 629, 2010-Ohio-6230, 947 N.E.2d 232 (2d Dist.). “Attendant circumstances” may also divert the individual’s attention from a hazard and excuse the failure to observe it. See Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d 1161 (2d Dist.). Moreover, as explained in Hissong, “[t]he existence and the obviousness of a danger which allegedly exists on a premises is determined by a fact-specific inquiry and must be analyzed on a case-by-case basis.” (Citation omitted.)
Skowronski, 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, at ¶ 22. {¶15} “[I]t is incumbent upon the plaintiff to identify or explain the reason for
the fall.” Id. at ¶ 14, citing Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65,
582 N.E.2d 1040 (12th Dist.1989). The testimony may also be provided by “‘outside
witnesses.’” Id. at id.
{¶16} Several witnesses were deposed in this case. According to Reserve
Property Manager Robert Swope (“Swope”), Lenox contracted with Reserve to act as an
agent for Lenox to provide repair and maintenance services for the complex. The
contract included an indemnification clause that protected Reserve for acts committed
within the scope of the contractual authority.
{¶17} Due to the size of the five-to-six acre complex, Reserve relied on unit
owners to report service needs in addition to Reserve’s weekly visual inspections.
Reserve made repair recommendations to the Lenox board of directors whose approval
was required for expenditures exceeding $1,000.
{¶18} Semiannual inspections of the complex were also conducted. Though he did
not keep inspection records, Swope walked or drove around the complex on a weekly
basis to inspect the walkway and driveway areas. Repairs were routinely conducted by
third-party contractor Aspen Construction L.L.C. (“Aspen”). Swope had not seen the
pothole prior to the date of the incident and, after the incident, he promptly took
photographs and notified Aspen to repair the pothole. Swope did not consider the
pothole to be a trip hazard because it was clearly observable. Swope was not aware of any
other trip-and-fall occurrences at the complex. {¶19} Aspen employed a subcontractor to repair the pothole with asphalt cold
patch. According to Aspen Project Manager Richard Takacs (“Takacs”), the pothole
was approximately eight to nine inches in length, four inches wide and one-half inch
deep. Potholes exceeding one-inch in depth required a more extensive repair procedure
and could not be repaired with asphalt cold patch. Aspen also repaired several other small
potholes observed during the visit.
{¶20} Takacs explained that potholes can form and expand quickly due to
inclement weather including heavy rain and water accumulation. Potholes
also form or are impacted by temperature changes, traffic, landscaping operations, and
snow plows.
{¶21} Mitchell, a resident owner in the complex for about three years, met
Lacey while both were walking their dogs. On the day of the incident, Mitchell drove past
Lacey who was walking her dogs near the complex mailbox banks located shortly beyond
the community center. Mitchell parked, exited the car, and retrieved her mail. She
could not see Lacey from the mailbox area and did not see Lacey fall.
{¶22} As Mitchell returned to her car, she saw Lacey on the ground and helped
her to her feet. Mitchell testified that she tripped over the same pothole approximately
two months earlier, and again a month prior to the incident when she was walking her dog
one night. The pothole was located between two of the mailbox banks in front of one of
the garages. Mitchell described the hole as “relatively sufficient” and “small enough that you didn’t always notice it, but big enough [to notice] if you stepped in it.” Mitchell
Deposition, at 22-24. Mitchell did not report the pothole to appellees.
{¶23} Lacey argues that appellees had constructive knowledge of the pothole
based on Beck v. Camden Place at Tuttle Crossing, 10th Dist. Franklin No. 02AP-1370,
2004-Ohio-2989. Beck determined that a landowner is “charged with constructive
knowledge of defects which would have been revealed by a reasonable inspection of the
premises.” Id. at ¶ 21, citing State Farm Mut. Auto. Ins. Co. v. Chatham Dev. Corp.,
10th Dist. Franklin No. 94APE08-1243, 1995 Ohio App. LEXIS 2398 (June 6, 1995).
{¶24} Lacey posits that appellees failed to reasonably inspect the complex because
Swope was only on-site 20 hours per week and there were no written inspection records.
However, Lacey also testified that she walked her dogs through the complex daily for
more than two years and never tripped on any potholes or defects in the driveways or
walking areas of the complex.
{¶25} It is undisputed that appellees did not have actual knowledge of the
pothole. Whether or not appellees had constructive knowledge or should have known of
the pothole is not relevant because the pothole was open and obvious as a matter of law.
“When a danger is open and obvious, a premises owner owes no duty of care to
individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d
79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13, citing Sidle v. Humphrey, 13 Ohio St.2d 45,
233 N.E.2d 589 (1968). {¶26} “By focusing on the duty prong of negligence, the rule properly considers
the nature of the dangerous condition itself.” Id. “[T]he owner or occupier may
reasonably expect that persons entering the premises will discover those dangers and take
appropriate measures to protect themselves.” Id. at ¶ 5, citing Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
{¶27} As this court has previously stated,
The question of whether a danger is open and obvious is an objective one. Abdelshahid v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 102109, 2015-Ohio-2274, ¶ 25, citing Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No. 87876, 2006-Ohio-6936, ¶ 25. The fact that a plaintiff was unaware of the danger is not dispositive of the issue. Id. Rather, the court must consider whether, in light of the specific facts and circumstances of the case, an objective, reasonable person would deem the danger open and obvious. Id.; Carpenter v. Marc Glassman, Inc., 124 Ohio App.3d 236, 705 N.E.2d 1281 (8th Dist.1997).
Butler v. Cleveland Clinic, 8th Dist. Cuyahoga No. 105457, 2018-Ohio-93, ¶ 11.
{¶28} The pothole was approximately eight to nine inches in length, four inches
wide and one-half inch deep based on the evidence in this case. Lacey testified that the
incident occurred during the afternoon, and she did not identify any lighting or weather
issues. Lacey did state that she was walking her dogs and was not paying attention.
We find that viewed in a light most favorable to Lacey, “an objective, reasonable person
would deem the danger open and obvious.” (Citations omitted.) Id.
B. Attendant Circumstances
{¶29} Lacey also urges that attendant circumstances existed that distracted her
attention from the hazard excuses her failure to observe it, requiring a case-by-case, fact-specific analysis. Skowronski, 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, at
¶ 22, citing Hissong, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d 1161.
{¶30} In Bounds, 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, we considered
whether attendant circumstances existed that created a “genuine issue of material fact as
to whether a danger was open and obvious.” Id. at ¶ 24, citing Quinn v. Montgomery
Cty. Edn. Serv. Ctr., 2d Dist. Montgomery No. 20596, 2005-Ohio-808; Collins v.
McDonald’s Corp., 8th Dist. Cuyahoga No. 83282, 2004-Ohio-4074. “Attendant
circumstances” include “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.” Id., citing Menke v. Beerman, 12th Dist.
Butler No. CA97-09-182, 1998 Ohio App. LEXIS 868 (Mar. 9, 1998).
{¶31} According to the record, Lacey’s view was partially blocked by the antics
of the two dogs, and she admitted that she was distracted when she saw Mitchell at the
mailboxes. Lacy argues that these events serve as attendant circumstances because they
were reasonably foreseeable. We disagree. A landlord is not required to act as an
insurer of the safety of its invitees. Howard v. Meat City, Inc., 3d Dist. Allen No.
1-16-32, 2016-Ohio-7989, ¶ 10, citing Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,
2009-Ohio-2495, 909 N.E.2d 120, ¶ 11. See also Carlo v. Kohl’s Dept. Stores, Inc., 8th
Dist. Cuyahoga No. 105725, 2017-Ohio-8173, ¶ 9. {¶32} A business invitee also has a duty to take reasonable precautions
to avoid dangers. Bounds at ¶ 19, citing Brinkman v. Ross, 68 Ohio St.3d 82, 84,
1993-Ohio-72, 623 N.E.2d 1175. “[I]t is [also] incumbent upon the plaintiff to identify
or explain the reason for the fall.” Stamper, 65 Ohio App.3d at 67, 582 N.E.2d 1040.
Lacey admitted that she was not paying attention when she fell. The fall occurred during
daylight hours between 3:00 p.m. and 4:00 p.m. Lacey did not state that the weather
conditions were poor that day. “[T]he attendant circumstance must be ‘an unusual
circumstance of the property owner’s making.’” Haller v. Meijer, Inc., 10th Dist.
Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10, quoting McConnell v. Margello, 10th Dist.
Franklin No. 06AP-1235, 2007-Ohio -4860, ¶ 17, citing Lang v. Holly Hill Motel, Inc.,
4th Dist. Jackson No. 06CA18, 2007-Ohio-3898.
{¶33} Viewed in a light most favorable to Lacey as the nonmoving party, there
are no facts before this court that support the presence of attendant circumstances
sufficient to require a reversal of summary judgment in this case.
C. Agent or Independent Contractor
{¶34} Lacey states that the open-and-obvious defense is not available to Reserve
as an independent contractor. “[A]n independent contractor who creates a dangerous
condition on real property is not relieved of liability under the [open- and-obvious
doctrine]” and liability must be analyzed by first determining the existence of a duty of
care and then considering whether the contractor is exonerated by the “open and obvious dangers.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 597 N.E.2d 504
(1992).
{¶35} Appellees counter that Reserve served as the exclusive managing agent of
Lenox, a condominium association, for the common areas of the complex so that Reserve
may step into its shoes and exercise the defense. We find that appellees’ position has
merit.
{¶36} The Ohio Supreme Court has determined that:
“The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for? If he did, the relation is that of principal and agent or master and servant.”
Councell v. Douglas, 163 Ohio St. 292, 295, 126 N.E.2d 597 (1955), quoting Miller v.
Metro. Life Ins. Co., 134 Ohio St. 289, 291-292, 16 N.E.2d 447 (1938).
{¶37} According to the Ohio Condominium Act, R.C. Chapter 5311, a
condominium association may hire a managing agent to fulfill the duties of the
association subject to the control of the board of directors. R.C. 5311.08(B)(1)(h). See
also R.C. 5311.01(M) defining “condominium instruments” to include “any contracts
pertaining to the management of the condominium property” and R.C. 5311.23(D)
providing that an action for failure to comply with condominium instruments may be
commenced by the condominium association “in its own name, in the name of the board
of directors, or in the name of the association’s managing agent.” Akerstrom v. 635 W.
Lakeside, Ltd., 2018-Ohio-98, 105 N.E.3d 440, ¶ 12 (8th Dist.), citing R.C. 5311.23(D). {¶38} The December 10, 2015 Condominium Management Agreement between
Lenox and Reserve appoints Lenox to act as the managing agent pursuant to Article II of
the Declaration of Condominium Ownership. Lenox appoints Reserve as the exclusive
agent to manage the common elements of the complex “subject at all times to the
direction and control” of Lenox. The general delineation of duties specifies that the
activities are subject to the direction and control of Lenox. Included is the authority for
Reserve to “hire, supervise, and discharge” personnel hired by Reserve on behalf of
Lenox to fulfill the duties.
{¶39} Reserve’s activities are conducted under the direction and control of
Lenox. The duties include the: (1) collection of condominium assessment fees from unit
owners, (2) receipt of other payments on behalf of Lenox for deposit into a trust account,
and (3) preparation of checks for board signature to disburse sums payable by Lenox.
Lenox reimburses Reserve for all office expenses relating to the agency. Lenox also
indemnifies Reserve for negligent acts or omissions relating to the exercise of its duties,
including personal injuries, and Lenox secures the insurance for Reserve’s activities by
naming Reserve as an additional insured on the Lenox insurance policies.2
{¶40} The terms of the November 1, 2016 landscaping and snow plowing
agreement contained in the record provide further insight into Reserve’s status as an
agent. The agreement is between Lenox and the landscaping company. The
Willful acts of misconduct or fraud are not indemnified. 2 landscaping company is specifically identified as an independent contractor. The
agreement lists the basic scope of work and contract price for the services.
{¶41} Payment for optional work projects requires written authorization from
Reserve as the agent of Lenox prior to performance. The contract is indicative of an
arms-length transaction with the contractor bearing responsibility for its own acts or
omissions and indemnifying Lenox and Reserve. The contractor is responsible for
providing proof of insurance. The contractor’s invoices are to be directed to Lenox in
care of Reserve.
{¶42} A review of Ohio law, as well as the cases presented by the instant parties,
did not reveal a case specifically addressing whether a condominium managing agent is
an independent contractor, perhaps because the designation is self-explanatory and
contemplated by the Ohio Condominium Act. In fact, a review of premises liability
cases against a condominium association and its managing agent involving business
invitees and the open-and-obvious defense reveals application of the doctrine to both
parties without a discussion of legal status.
{¶43} Examples of such cases include: Brandimarte v. Packard, 8th Dist.
Cuyahoga No. 67872, 1995 Ohio App. LEXIS 2095, 1 (May 18, 1995), finding that a
condominium association, its managing company, and cleaning company were entitled to
the protection of the open-and-obvious doctrine against a business invitee. Hurst v.
Carriage House W. Condominium Owners Assn., 2017-Ohio-9236, 102 N.E.3d 1071 (6th
Dist.), finding that the condominium association and managing agent were entitled to the open-and-obvious defense; and Ervin v. Case Bowen Co., 10th Dist. Franklin No.
07AP-322, 2008-Ohio-393, affirming the grant of summary judgment in favor of the
condominium managing agent in a negligence action due to the open-and-obvious nature
of natural accumulations of snow.
{¶44} Viewed in a light most favorable to Lacey as the nonmoving party, we
find that the open-and-obvious defense is available to Reserve as the agent of Lenox.
V. Conclusion
{¶45} The trial court’s judgment is affirmed.
It is ordered that appellees recover from appellant 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 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.
____________________________________________ ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR