[Cite as Watts v. Fledderman, 2018-Ohio-2732.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
LOUISE E. WATTS, : APPEAL NO. C-170255 TRIAL NO. A-1603834 Plaintiff-Counterclaim : Defendant-Appellee, : O P I N I O N. vs. : ANNE M. FLEDDERMAN, Executor of the Estate of : Thomas A. Fledderman, Deceased, : and : ANNE M. FLEDDERMAN, : Defendants-Counterclaim Plaintiffs-Appellants, :
and :
ANNE M. FLEDDERMAN, : Escrow Agent, et al., : Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2018
G. Robert Hines, for Plaintiff-Counterclaim Defendant-Appellee,
Anne M. Fledderman, for Defendants-Counterclaim Plaintiffs-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS
D ETERS , Judge.
{¶1} This appeal involves a dispute over the proceeds of a parcel of real
property that was sold in April 2016. Plaintiff-counterclaim defendant-appellee
Louise Watts filed a claim for a declaratory judgment asserting that she was entitled
to the sale proceeds because she was the record owner of the property when it was
sold. Defendants-counterclaim plaintiffs-appellants Anne M. Fledderman,
individually and in her capacity as the executor of the estate of the decedent, Thomas
A. Fledderman, filed an answer and two counterclaims.
{¶2} Fledderman asserted that the decedent Thomas Fledderman was the
equitable owner of the property by virtue of an oral land contract that Watts and her
deceased husband, John Watts, had entered into with Thomas Fledderman on March
11, 1998. Alternatively, she argued that if the decedent Thomas Fledderman had
resided in the property as a tenant from March 1998 until October 2015, the Wattses
had breached what she claimed was a residential lease agreement by collecting
payments in excess of the lease agreement and by charging the decedent for expenses
and obligations that were the Wattses’ statutory responsibility under R.C. Chapter
5321, Ohio’s Landlord-Tenant Act. Following a bench trial, the trial court rendered
judgment in favor of Watts on her claim and Fledderman’s counterclaims.
{¶3} Fledderman raises five assignments of error, contending that the trial
court erred by (1) denying her motion for default judgment on her counterclaims and
granting Watts’s motion to file her answer out of time, (2) adopting verbatim Watts’s
proposed findings of fact and conclusions of law, (3) dismissing her counterclaims
with prejudice, and (4) admitting hearsay evidence and rendering a judgment for
Watts that was contrary to manifest weight of the evidence. Finding none of her
assignments of error meritorious, we affirm the judgment of the trial court.
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Background
{¶4} In 1998, Thomas Fledderman was operating an antique furniture and
antique art pottery retail business in Mt. Healthy. When his landlord demanded
possession of the retail space and the second-floor apartment that Thomas
Fledderman had occupied, Thomas Fledderman attempted to purchase a commercial
storefront building located on Spring Grove Avenue in the city of Cincinnati, Ohio.
When Fledderman lacked he creditworthiness to do so, his good friend, John Watts
offered to purchase the building and rent the building it to Thomas Fledderman so
that he could continue operating his business.
The Wattses’ Purchase of the Property
{¶5} In February 1998, John Watts entered into a purchase contract for the
property with Paul G. Schoenharl for $60,000. John and Louise Watts obtained a
$48,000 mortgage from the North Side Bank and Trust Company using their own
credit and an unsecured $20,000 interest-free loan from Thomas Fledderman’s
parents, Raymond and Betty Fledderman. The $20,000 interest-free loan from
Raymond and Betty Fledderman to John and Louise Watts was memorialized by a
promissory note dated February 12, 1998, which stated,
1. Payment of [the] principal shall be made only upon the sale of the
real property located at 3940 Spring Grove Avenue, Cincinnati, Ohio
45223 and only if the property is sold to someone other than Thomas
A. Fledderman. It is the intention of the Makers and the Payees of this
note that Thomas A. Fledderman shall purchase the within described
real estate at some future date from Makers for the sum of $40,000.00
at which time and upon which occurrence this note shall become void.
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{¶6} On March 9, 1998, the real estate closing for the property was held at
North Side Bank and Trust. Paul Shoenharl’s deed to John and Louise Watts, in
survivorship, was recorded on March 11, 1998.
The Commercial Lease Agreement
{¶7} On March 26, 1998, John and Louise Watts, as lessors, and Thomas
Fledderman, as lessee, entered into a lease agreement for the entire commercial
storefront building located on the property. The lease agreement was executed at
North Side Bank and Trust and witnessed by two bank employees. Under the terms
of the lease agreement, Thomas Fledderman agreed to pay rent in the amount of
$650 per month.
{¶8} Paragraph 4 of the lease contained a right to purchase the property for
the sum of $40,000.00 that was nearly identical to that contained in the Wattses’
promissory note to Raymond and Betty Fledderman:
4. Lessee shall have the right to purchase the real estate at 3940
Spring Grove Avenue, Cincinnati, Ohio 45223 from Lessor for the sum
of $40,000.00 at any time during the term of this agreement. Should
Lessee decide to exercise his right to purchase the real estate for the
sum of $40,000.00, then it is understood by the parties hereto that a
promissory note in the sum of $20,000.00 between Lessor (John F.
Watts and Louse E. Watts) and [(] Raymond A. Fledderman and Betty
Fledderman) shall become void.
Lessor retains the right to sell the real estate to any other
prospective purchaser at any time during the terms of this lease. If
Lessor receives an offer to purchase the premises during the term of
the Lease, or any renewal thereof, Lessee shall have the first right to
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purchase said property for the sum of $40,000.00. In addition, if
Lessor grants an option to purchase, at such time, Lessee may elect to
proceed under the right of first refusal to purchase the Premises for the
sum of $40,000.00. Lessee shall have fifteen (15 days) from receipt of
said offer in which to signify his intention to exercise his right of
refusal to purchase the Premises, otherwise he waives such right.
{¶9} The lease itself used terms consistent with commercial activity such as
business and merchandise and it referred to the lessee’s continued operation at the
leased premises. Additionally, in paragraphs 5 through 11, and 14 of the lease
agreement, Thomas Fledderman, as lessee, assumed obligations consistent with a
commercial lease. As lessee he was required to fully maintain the premises at his
sole expense, including the driveways and public walkways included in or adjacent to
the premises, and to keep them free of all obstructions, including merchandise. As
the lessee he was also required to pay for all utilities and rubbish removal, to carry
insurance on the premises, including “plate glass” insurance and public liability
insurance of not less than $1 million, and to obtain all licenses necessary to conduct
his business. The lease further provided that any expansion of the lessee’s facilities
or any new services acquired by the lessee would be installed at the lessee’s expense
and that the lessee needed to obtain the lessor’s permission before making any
structural alterations to the premises with the exception of trade fixtures, machinery,
equipment, and furniture the lessee owned.
Thomas Fledderman’s Commercial Tenancy
{¶10} Immediately thereafter, Thomas Fledderman began operating his
business selling antique furniture and antique art pottery on the first floor of the
building. The business operated by appointment only. It was compliant with the B-4
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business zoning of the area, which permitted a second-floor apartment to be
operated within the commercial building, which Thomas Fledderman occupied
himself.
{¶11} After Thomas Fledderman took sole occupancy of the property, the
Wattses deposited all of Thomas Fledderman’s rental payments into a “management
account” at Northside Bank and Trust Company, out of which the mortgage
payment, real-estate taxes, and insurance premiums were paid. Despite it being
Fledderman’s obligation, the Wattses also paid other maintenance expenses out of
this account. The landlord-tenant arrangement between the Wattses and Thomas
Fledderman continued without any problems. In 2003, the Wattses applied for and
received a $20,000 grant made available to commercial buildings by the city of
Cincinnati through the Northside Community Council, which they used to
completely renovate the exterior of the building by installing a new façade and
windows.
{¶12} John Watts died on September 12, 2012. His interest in the real estate
passed to Louise Watts under the survivorship deed. Louise Watts continued to
manage the property and to act as Thomas Fledderman’s landlord by handling the
receipt of all the rents and the payment of all the expenses in the same fashion as
John Watts had undertaken for the previous 14 years. At no point during this time
period did Thomas Fledderman exercise his right under the commercial lease
agreement to purchase the property for $40,000.
Louise Watts’s Sale of the Property and the Ownership Dispute
{¶13} On October 5, 2015, Thomas Fledderman died. His sister, Anne
Fledderman, as the executor of his estate, began inspecting and removing the entire
inventory from his business operations and his personal property from the building.
6 OHIO FIRST DISTRICT COURT OF APPEALS
At the same time, Louise Watts began renovations and repairs preliminarily to listing
the real estate for sale. In early 2016, Louise Watts listed the property with Comey &
Shepherd Realtors. On March 10, 2016, she accepted a contract to purchase the
property from South Block Properties, Ltd., for the sale price of $65,000.
{¶14} In late March 2016, during a title examination that was completed
preliminarily to the sale of the property to South Block Properties, Ltd., it was
discovered that on February 16, 2016, Anne Fledderman, individually, had recorded
pursuant to R.C. 5301.25 an affidavit asserting that Thomas Fledderman and
consequently, Anne Fledderman, as his successor, owned an equitable interest in the
property under an oral land contract with John and Louise Watts.
{¶15} To complete the sale of the property with South Block Properties, Ltd.,
Louise Watts entered into an escrow agreement with Anne Fledderman, as executor
of the estate of Thomas A. Fledderman, deceased. The escrow agreement provided
that deeds be delivered at the April 13, 2016 closing both from Louise Watts and
from Anne Fledderman in her two separate capacities, and that the net proceeds
from the closing be escrowed until a declaratory judgment action could determine
the person entitled to the monies. The sale of the property to South Block Properties
closed on April 13, 2016. Louise Watts deposited the net sale proceeds of $52,949.85
with Martha C. Dourson and Anne M. Fledderman, as escrow agents, in an account
at North Side Bank and Trust Company.
{¶16} On June 10, 2016, Anne Fledderman, as executor of the estate of Betty
C. Fledderman, sent a letter to Louise Watts demanding immediate payment of the
$20,000.00 principal amount due under the February 12, 1998 promissory note,
which Anne Fledderman claimed had been triggered by the April 13, 2016 sale of the
property. Louise Watts authorized Martha Dourson and Anne Fledderman, the
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escrow agents, to pay to Anne Fledderman, being both the duly appointed executor
of the estate of Betty Fledderman and the nominated administrator and
commissioner of the estate of Raymond Fledderman, two separate $10,000 checks
from the escrow account, in full payment of all the obligations under the February 12,
1998 promissory note. Anne Fledderman and Martha Dourson held the remaining
$32,949.85 net sale proceeds from the sale of the property in the Northside Bank
escrow account.
The Lawsuit
{¶17} On July 5, 2016, Louise Watts filed her complaint for declaratory
judgment and money, asserting that she was entitled to the remaining $32,949.85 in
proceeds from the sale of the real property. Fledderman filed an answer and a
counterclaim demanding similar declaratory relief. Fledderman asserted the right to
the sale proceeds under an oral land contract between Thomas Fledderman and the
Wattses. Alternatively, she sought a money judgment for amounts collected by John
and Louise Watts in contravention of what she claimed was a residential lease
agreement and for alleged statutory violations of Ohio’s Landlord-Tenant Act.
{¶18} Following a case management conference with the court, Fledderman
subsequently filed a motion for default judgment on her counterclaims. Watts filed a
motion for leave to answer out of time. The trial court granted Watts’s motion for
leave to answer out of time and denied Fledderman’s motion for default judgment.
The parties’ claims were then tried to the court.
{¶19} Thereafter, the trial court granted judgment in favor of Louise Watts
on her claim and dismissed Fledderman’s counterclaims with prejudice. Fledderman
filed a request for findings of fact and conclusions of law. The trial court asked
Watts, as the prevailing party, to submit proposed findings of fact and conclusions of
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law. Fledderman filed objections to Watts’s proposed findings of fact and
conclusions of law. Following a hearing on the objections, the trial court adopted
Watts’s findings of fact and conclusions of law. For ease of discussion, we address
Fledderman’s assignments of error out of order.
Findings of Fact and Conclusions of Law
{¶20} In her second assignment of error, Fledderman argues that the trial
court erred by adopting verbatim Watts’s proposed findings of fact and conclusions
of law without a thorough review and without regard to whether the findings were
accurate or met the applicable standard.
{¶21} As an initial matter, we note that Watts’s proposed findings of fact and
conclusions of law were not filed with the trial-court clerk or attached to
Fledderman’s objections. Thus, we cannot determine from the record if the trial
court adopted them verbatim as Fledderman claims or made minor changes as Watts
contends.
{¶22} Nonetheless, Civ.R. 52 does not prohibit a trial court from adopting
verbatim a party’s proposed findings of fact and conclusions of law, as long as the
court “has thoroughly read the document to ensure that it is completely accurate in
fact and law.” Hinkston v. The Finance Co., 1st Dist. Hamilton No. C-980972, 2000
WL 569559, *2 (May 12, 2000). Given that the trial court held a hearing on
Fledderman’s objections to the proposed findings of fact and conclusions of law
before adopting them, and the proposed findings of fact and conclusions accurately
reflected the record and the law, we cannot say the trial court erred by adopting
them. See In re Norris, 4th Dist. Athens Nos. 00CA038 and 00CA041, 2000 WL
33226187, *6 (Dec. 12, 2000). We, therefore, overrule the second assignment of
error.
9 OHIO FIRST DISTRICT COURT OF APPEALS
Fledderman’s Counterclaim for Oral Land Contract
{¶23} In her third assignment of error, Fledderman argues that the trial
court erred by dismissing with prejudice her counterclaim for a declaratory judgment
that Thomas Fledderman had entered into an oral land contract with the Wattses
upon their purchase of the building.
{¶24} An agreement concerning the sale of an interest in real estate generally
falls within R.C. 1335.05, Ohio’s statute of frauds, and must be memorialized in
writing. See Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 438-439,
662 N.E.2d 1074 (1996). Notwithstanding the statute of frauds, Ohio courts have
held that it is possible in certain cases to establish the existence of “an oral land
contract” under the doctrine of part performance. Roth v. Natl. City Bank, 1st Dist.
Hamilton No. C-100216, 2010-Ohio-5812, ¶ 14. A party seeking to enforce an oral
land contract must establish both the contract and the applicability of the doctrine of
part performance by clear and convincing evidence. See Geiger v. Geiger, 2d Dist.
Montgomery No. 13841, 1993 WL 476247, *2 (Nov. 16, 1993). In order to establish
part performance, the party asserting it must have undertaken acts that (1) were
exclusively referable to the oral agreement to convey land and (2) changed his
position to his prejudice. Id. at *4; Alban v. Schnieders, 67 Ohio App. 397, 399, 34
N.E.2d 302 (1st Dist.1940).
{¶25} Fledderman claims that she established the existence of an oral land
contract under the doctrine of part performance because she presented clear and
convincing evidence that Thomas Fledderman had occupied the building for 17½
years with the approval of the Wattses, he had made rental payments in excess of the
value of the property, which the Watts had used to pay the mortgage on the property,
and he paid all the maintenance expenses for the property. We disagree.
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{¶26} Here, the clear and unambiguous terms of the February 12, 1998
promissory note and the commercial lease agreement reflect that the Wattses were
the owners of the property, and that Thomas Fledderman was a tenant of the
property. The Wattses retained the right to sell the property, and if they decided to
exercise that right, then Thomas Fledderman had a right of first refusal to purchase
the property for $40,000. Fledderman’s reliance on the doctrine of part
performance is misplaced as these written documents are presumed to contain the
terms of the parties’ agreement. See Marion Prod. Credit Assn. v. Cochran, 40 Ohio
St.3d 265, 533 N.E.2d 325 (1988), paragraph three of the syllabus (holding that “an
oral agreement cannot be enforced in preference to a signed writing which pertains
to exactly the same subject matter, yet has different terms”). Thomas Fledderman’s
actions during the 17½ years he resided in the property were not based on any oral
agreement between himself and the Wattses, but on his obligations as a lessee of the
property.
{¶27} Because Fledderman’s position that Thomas Fledderman had entered
into an oral land contract with the Wattses is totally inconsistent with the clear and
unambiguous terms of the promissory note and the lease agreement, the trial court
properly dismissed her counterclaim with prejudice. As a result, we overrule the
third assignment of error.
Fledderman’s Counterclaim for Breach of Residential Lease Agreement
{¶28} In the fourth assignment of error, Fledderman argues that the trial
court erred by dismissing her counterclaim for breach of a residential lease
agreement and for reimbursement of amounts paid by Thomas Fledderman during
the tenancy that the Wattses had been required to pay.
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{¶29} At trial, Fledderman contended that the lease agreement executed
between the Wattses and Thomas Fledderman on March 26, 1998, violated the
provisions of the Ohio Landlord-Tenant Act set forth under R.C. Chapter 5321. She
claimed that because the lease had lacked a purpose clause, and because Thomas
Fledderman had lived in an apartment on the second floor and used the basement
and first floor for storage, the commercial building was actually a “residential
premises,” and that certain provisions of the Ohio Landlord-Tenant Act had been
continually violated from March 1998 until Thomas Fledderman’s death.
Generally, courts presume that the intent of the parties to a contract
resides in the language they chose to employ in the agreement. * * *
Only when the language of a contract is unclear or ambiguous, or when
the circumstances surrounding the agreement invest the language of
the contract with a special meaning will extrinsic evidence be
considered in an effort to give effect to the parties’ intentions. * * *
When the terms in a contract are unambiguous, courts will not in
effect create a new contract by finding an intent not expressed in the
clear language employed by the parties.
Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992); see
F & R Ent. v. Phillips, 2d Dist. Montgomery No. CA 11711, 1990 WL 68968, *2 (May
21, 1990).
{¶30} Here, the trial court concluded that the clear and unambiguous terms
in the March 26, 1998 lease agreement evidenced that it was a commercial lease
agreement for the entire commercial property. For example, the lease agreement
used terms consistent with commercial activity, such as merchandise, inventory,
trade fixtures, furniture, equipment, and machinery, and it referenced Thomas
12 OHIO FIRST DISTRICT COURT OF APPEALS
Fledderman’s continued operation at the leased premises. Thomas Fledderman,
furthermore, undertook duties consistent with a commercial tenant. For example, he
agreed to maintain public liability and “plate glass” insurance on the premises, to
obtain all required licenses to conduct his business, and to fully maintain the
premises at his own expense. The court further found that Louise Watts’s testimony,
the lease provisions, photographs of the real estate, and the façade grant awarded to
the Wattses for improving North Side commercial buildings, constituted persuasive
evidence that the real estate had been used for commercial purposes, and that
incidental and secondary to that use was Thomas Fledderman’s permissive use of the
second-floor apartment within the commercial building.
{¶31} R.C. Chapter 5321 does not apply to landlords and tenants of
commercial property. And the rent and maintenance obligations that Thomas
Fledderman undertook were consistent with his duties under the commercial lease
agreement. Thus, the trial court properly concluded that Fledderman’s counterclaim
for statutory landlord-tenant violations was meritless. See, e.g., Maggiore v.
Kovach, 101 Ohio St.3d 184, 2004-Ohio-722, 803 N.E.2d 790, ¶ 18 (holding that R.C.
Chapter 5321 encompasses only tenants and landlords of residential properties). As
a result, we overrule the fourth assignment of error.
Weight of the Evidence
{¶32} In her fifth assignment of error, Fledderman argues that the trial
court’s judgment was against the manifest weight of the evidence and that the court
abused its discretion in admitting hearsay into evidence.
{¶33} In a manifest-weight-of the evidence challenge, this court must weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trial court clearly lost its
13 OHIO FIRST DISTRICT COURT OF APPEALS
way and created such a manifest miscarriage of justice that its judgment must be
reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 20. “[I]n weighing the evidence, [we] must always be mindful
of the presumption in favor of the finder of fact,” particularly when the trial court has
issued findings of fact and conclusions of law pursuant to Civ.R. 52. See Busch Bros.
Elevator Co., Inc. v. Unit Bldg. Servs., 190 Ohio App.3d 413, 2010-Ohio-5320, 942
N.E.2d 404, ¶ 3 (1st Dist.).
{¶34} Here, the trial court, sitting as the trier of fact, heard testimony from
Louise Watts, Anne Fledderman, and Fledderman’s two witnesses, Mark Ireton and
Susan Thompson, and it reviewed numerous documents relating to the property.
Fledderman maintains that the trial court lost its way in choosing to accord more
weight to Watts’s testimony than to the testimony of herself and her witnesses that
Thomas Fledderman had used the property as his residence and to store the pottery,
antiques, furniture, computers, and other items that he had collected. She
additionally claims that the trial court erred in admitting hearsay in the form of a
1999 report from the Northside Business Association naming Thomas Fledderman’s
business as the Business of the Month. But any error in admitting that document
was harmless, when the trial court had sufficient evidence independent of that
document to support its conclusion that Thomas Fledderman had operated a
business on the premises. Here, the trial court’s decision rested primarily on the
clear and unambiguous language in the promissory note and commercial lease
agreement which conclusively established the issue. Watts’s testimony was
consistent with that documentary evidence. Based upon our review of the record, we
cannot say that the trial court’s decision is contrary to the weight of the evidence.
We, therefore, overrule the fifth assignment of error.
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Default Judgment
{¶35} In her first assignment of error, Fledderman argues that the trial court
erred by denying her motion for a default judgment on her counterclaims and by
permitting Watts to file her answer out of time.
{¶36} “A trial court’s decision to either grant a default judgment in favor of a
moving party or to allow the defending party to file a late answer pursuant to Civ.R. 6(B)
upon a finding of excusable neglect will not be reversed absent an abuse of discretion.”
Huffer v. Cicero, 107 Ohio App.3d 65, 73, 667 N.E.2d 1031 (4th Dist.1995). An abuse
of discretion involves more than an error of law or of judgment; it connotes an
attitude on the part of the court that is unreasonable, unconscionable or arbitrary.
Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218 (1993).
{¶37} Civ.R. 6(B)(2) allows for an extension of time to file a late pleading
within the trial court’s discretion “upon motion made after the expiration of the
specified period * * * where the failure to act was the result of excusable neglect * *
*.” The “test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that
applied under Civ.R. 60(B).” State ex rel. Lindenschmidt v. Bd. of Commrs. of
Butler Cty., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343 (1995). In determining
whether neglect is excusable or inexcusable, courts “must take into consideration all
the surrounding facts and circumstances and * * * be mindful * * * that cases should
be decided on their merits, where possible, rather than procedural grounds.” Id.
Under the plain language of Civ.R. 55, a default judgment is appropriate only where a
party has failed to plead or otherwise defend.
{¶38} Based on our review of the record, we cannot conclude that the trial
court abused its discretion by denying Fledderman’s motion for a default judgment
and granting Watts’s motion for leave to answer out of time given the unusual
15 OHIO FIRST DISTRICT COURT OF APPEALS
procedural posture of this case, the admonition that cases should be decided on the
merits, and the less stringent standard for excusable neglect in Civ.R. 6(B)(2).
{¶39} Here, Fledderman’s counterclaims demanded the opposite declaratory
relief that Watts had already sought in her declaratory judgment claim. Thus,
Fledderman cannot demonstrate any prejudice from the court’s permitting Watts to
file her answer out of time. Judicial economy, moreover, warrants litigating all
issues surrounding the property in a single action. Watts filed her combined motion
in response to Fledderman’s motion for a default judgment and she moved to file an
answer to the counterclaim within nine days of being served with the motion for a
default judgment. Thus, Watts’s counsel cannot be said to have flagrantly
disregarded the civil rules. Consequently, we cannot say the trial court abused its
discretion by granting Watts’s motion to answer out of time or in denying
Fledderman’s motion for a default judgment. See Stumpff v. Harris, 2d Dist.
Montgomery No. 23354, 2010-Ohio-1241, *5. As a result, we overrule the first
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry this date.