[Cite as Zilbert v. Proficio Mtge. Ventures, L.L.C., 2014-Ohio-1838.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100299
ROGER ZILBERT PLAINTIFF-APPELLANT
vs.
PROFICIO MORTGAGE VENTURES, L.L.C., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-805479
BEFORE: Blackmon, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 1, 2014 ATTORNEY FOR APPELLANT
Brian D. Spitz The Spitz Law Firm, L.L.C. 4568 Mayfield Road Suite 102 South Euclid, Ohio 44121
ATTORNEYS FOR APPELLEES
James R. Pearl Law Office of James R. Pearl, Jr. 9393 Olde Eight Road Northfield, Ohio 44067
Jay E. Krasovec Jonathon W. Groza Ice Miller, L.L.P. Fifth Third Center 600 Superior Avenue, East Suite 1701 Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.: {¶1} Appellant Roger Zilbert (“Zilbert”) appeals the trial court’s decision
granting the motion to stay pending arbitration of appellee Proficio Mortgage Ventures,
L.L.C. (“Proficio”) and two of its employees, Mark Nagy (“Nagy”) and Todd Liguzinski
(“Liguzinski”). Zilbert assigns the following errors for our review:
I. The trial court committed reversible error in granting appellees’ motion to stay pending arbitration in Salt Lake City, Utah, as the forum selection clause contained in the employment agreement is overreaching and substantively unconscionable because it has the effect of blocking most claims.
II. The trial court erred in granting appellees’ motion to stay pending arbitration when Zilbert’s claims clearly fall outside the scope of the employment agreement as drafted solely and exclusively by appellees.
III. The trial court committed reversible error when it stayed Zilbert’s claim against Nagy and Liguzinski, as they are not parties to, and thus, cannot enforce the arbitration provision.
IV. The trial court erred in finding the arbitration agreement valid and enforceable because the manner in which it was executed was procedurally unconscionable.
{¶2} Having reviewed the record and pertinent law, we affirm in part, and
reverse in part, the trial court’s decision. The apposite facts follow.
{¶3} On May 31, 2012, Zilbert commenced employment with Proficio as a
mortgage loan officer. Zilbert signed an employment agreement (“Employment
Agreement”) contemporaneously with his hiring. On August 15, 2012, Proficio
terminated Zilbert.
{¶4} On April 23, 2013, Zilbert filed a wrongful termination complaint against
Proficio, Nagy, and Liguzinski. Zilbert, who is of the Jewish faith, alleged causes of action for retaliatory discrimination, religious discrimination, wrongful termination based
on religious discrimination, intentional infliction of emotional distress, and violation of
public policy.
{¶5} On May 14, 2013, Proficio, Nagy, and Liguzinski (“appellees”) filed a
motion to dismiss Zilbert’s complaint or in the alternative a motion to order arbitration, or
motion to stay the action pending resolution of arbitration. Appellees argued Zilbert’s
complaint should be dismissed due to improper venue and the trial court’s lack of subject
matter jurisdiction because of a mandatory arbitration clause contained in the
Employment Agreement signed by the parties.
{¶6} On June 3, 2013, Zilbert filed his motion in opposition to appellees’ motion.
On June 7, 2013, appellees filed a response to Zilbert’s motion in opposition. On
August 16, 2013, the trial court denied appellees’ motion to dismiss. The trial court
granted appellees’ alternative motion to stay the action pending resolution of arbitration
after finding the Employment Agreement to be valid and enforceable. Zilbert now
appeals.
Stay Pending Arbitration
{¶7} In the first assigned error, Zilbert argues the trial court erred when it
granted the motion to stay pending arbitration in Salt Lake City, Utah.
{¶8} Preliminarily, we note when addressing whether a trial court has properly
granted a motion to stay and compel arbitration, the appropriate standard of review depends on “the type of questions raised challenging the applicability of the arbitration
provision.” McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261,
2012-Ohio-1543, ¶ 7.
{¶9} Generally, an abuse of discretion standard applies; for example, when the
issue to be determined is whether a party has waived its right to arbitrate a given dispute.
Id., citing Milling Away, L.L.C. v. UGP Properties, L.L.C., 8th Dist. Cuyahoga No.
95751, 2011-Ohio-1103, ¶ 8. Additionally, when the issue is whether a party has agreed
to submit an issue to arbitration or questions of unconscionability are raised, we review
the matter under a de novo standard of review. Shumaker v. Saks Inc., 163 Ohio App.3d
173, 2005-Ohio-4391, 837 N.E.2d 393 (8th Dist.); Taylor Bldg. Corp. of Am. v. Benfield,
117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12.
{¶10} In the instant case, we apply a de novo standard of review because we are
reviewing the trial court’s decision to grant a motion to stay after finding that the claims
are subject to arbitration. The abuse of discretion standard of review has no application
in the context of the court deciding to stay proceedings pending the outcome of arbitration
because a stay in such circumstances is mandatory, not discretionary. N. Park
Retirement Community Ctr., Inc. v. Sovran Cos., Ltd., 8th Dist. Cuyahoga No. 96376,
2011-Ohio-5179, ¶ 7 (recognizing that R.C. 2711.02(B) imposes a mandatory duty to stay
the proceedings, leaving no discretion for the trial court upon being satisfied that the
matter was subject to arbitration); see also McCaskey at ¶ 9. “Under a de novo standard of
review, we give no deference to a trial court’s decision.” Brownlee v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, citing Akron v. Frazier, 142
Ohio App.3d 718, 721, 756 N.E.2d 1258 (9th Dist.2001).
{¶11} Ohio courts recognize a presumption favoring arbitration when the issue of
the parties’ dispute falls within the scope of the arbitration provision. Taylor Bldg. Corp.
of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 27. In light of
this strong presumption favoring arbitration, all doubts should be resolved in its favor.
Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15.
{¶12} Arbitration is favored because it provides the parties thereto with a relatively
expeditious and economical means of resolving a dispute. Schaefer v. Allstate Ins. Co.,
63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). Thus, if a dispute even arguably falls
within the parties’ arbitration provision, the trial court must stay the proceedings until
arbitration has been completed. Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No.
12CA827, 2013-Ohio-693, ¶ 15, citing Tomovich v. USA Waterproofing & Foundation
Servs., Inc., 9th Dist. Lorain No. 07CA9150, 2007-Ohio-6214, ¶ 8.
{¶13} Ohio’s strong public policy favoring arbitration is codified in Chapter 2711
of the Revised Code. Westerfield v. Three Rivers Nursing & Rehab. Ctr., L.L.C., 2d
Dist. Montgomery No. 25347, 2013-Ohio-512, ¶ 17. Under R.C. 2711.02(B) on
application of one of the parties, a trial court may stay litigation in favor of arbitration
pursuant to a written arbitration agreement. Taylor Bldg., 117 Ohio St.3d 352,
2008-Ohio-938, 884 N.E.2d 12, ¶ 28. R.C. 2711.02(B) provides:
If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.
Thus, R.C. 2711.02 requires a court to stay the trial of an action “on application of one of
the parties if (1) the action is brought upon any issue referable to arbitration under a
written agreement for arbitration[;] (2) the court is satisfied the issue is referable to
arbitration under the written agreement[;] and (3) the applicant is not in default in
proceeding with arbitration.” Fields, 4th Dist. Pike No. 12CA827, 2013-Ohio-693, ¶ 14.
{¶14} In the instant case, Page 5, Paragraph 22 of the Employment Agreement
captioned “Waiver of Litigation or Trial by Jury” states as follows:
THE PARTIES HEREBY WAIVE LITIGATION AND TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THEY MAY BE PARTIES, ARISING OUT OF, OR IN ANY WAY PERTAINING OR RELATED TO, THIS AGREEMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A GENERAL WAIVER OF LITIGATION AND TRIAL BY JURY FOR ALL CLAIMS, INCLUDING THOSE AGAINST PARTIES WHO ARE NOT PARTIES TO THE AGREEMENT. EMPLOYER AND EMPLOYEE BOTH UNDERSTAND AND ACCEPT THAT ALL PROCEEDINGS WILL BE MANAGED THROUGH BINDING ARBITRATION. THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE BY EACH OF THE PARTIES HERETO, AND THE PARTIES HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OR TO, IN ANY WAY, MODIFY OR NULLIFY ITS EFFECT.
{¶15} It is undisputed that the arbitration agreement was part of the Employment
Agreement that Zilbert signed. The arbitration clause is conspicuously written in all
capital letters. The clause is clear and unambiguous. {¶16} On May 31, 2012, Zilbert acknowledge the terms of the Employment
Agreement, including the arbitration agreement, by initialing each page of the six-page
document and by affixing his signature to the last page of the document. Approximately
two weeks later, the authorized branch and corporate signatures were affixed to the same
document.
{¶17} In his affidavit, Zilbert averred that he was excited about the offer of a job
with Proficio, that he was given the Employment Agreement to sign, that he signed it
believing that it was necessary to proceeding with his employment, and that he did not
understand the implications or consequences of arbitration. However, it is one of the
most basic tenets of contract law that a document should be read before being signed, and
further that a party to a contract is presumed to have read what he or she signed and thus
cannot defeat a contract by asserting he or she did not read it. See, e.g., Hadden Co.,
L.P.A. v. Del Spina, 10th Dist. Franklin No. 03AP-37, 2003-Ohio-4507, ¶ 15.
Consequently, by initialing and signing the document, Zilbert demonstrated his agreement
to be bound by the arbitration clause. See Cole v. Macy’s, Inc., 8th Dist. Cuyahoga No.
99502, 2013-Ohio-4705. Consequently, the trial court did not err when it found the
arbitration clause valid and enforceable.
{¶18} Nonetheless, on appeal, Zilbert argues the forum selection clause contained
on Page 5, Paragraph 20 of the Employment Agreement was unconscionable.
{¶19} Parties to a contract may agree to submit to the jurisdiction of a particular
court through the use of a forum-selection clause. Natl. City Commercial Capital Corp. v. All About Limousines Corp., 12th Dist. Butler No. CA2005-08-226, 2009-Ohio-1159, ¶
7. The Employment Agreement in the instant case contains the following choice of law
and forum selection clause:
Applicable Law: Jurisdiction: This agreement shall be governed by, and construed in accordance with, the laws of the State of Utah (without regard to conflicts of laws principle), irrespective of the fact that a party is or may become a resident of a different state, and by applicable federal laws of the United States of America. To the maximum extent permissible under Law, both parties hereby agree that the Circuit Court of Salt Lake City, State of Utah, shall have exclusive jurisdiction to hear and determine any and all disputes, controversies, or claims arising out of, or relating to, this Agreement, or concerning the respective rights of the parties hereunder and, for such purpose, the parties do hereby submit themselves to the sole personal jurisdiction of that court.
{¶20} Forum selection clauses are “presumptively valid” and have generally been
enforced. Conway v. Huntington Natl. Bank, 10th Dist. Franklin No. 11AP-1105,
2013-Ohio-1201. A forum selection clause will be enforced unless the party opposed to
its enforcement establishes: (i) it is a result of fraud or overreaching; (ii) enforcement
would violate a strong public policy of the forum; or (iii) enforcement would, in the
particular circumstances of the case, result in litigation in a jurisdiction so seriously
inconvenient as to be unreasonable. Id.
{¶21} In regard to the first factor, Zilbert does not argue that he signed the
Employment Agreement as a result of fraud and overreaching by Proficio. Also, Zilbert
has produced no evidence that Proficio made any false representations in inducing him to
agree to the forum selection clause. Consequently, such a clause would generally be valid and enforceable. Kennecorp Mtge. Brokers, Inc. v. Country Club Convalescent
Hosp. Inc., 66 Ohio St.3d 173, 176, 610 N.E.2d 987 (1993).
{¶22} In Kennecorp, for example, the Ohio Supreme upheld the forum selection
clause that had been agreed to by two sophisticated commercial entities. Thus, where
both parties to a contract are commercial entities and the contract contains a valid
forum-selection clause, the clause generally cannot be invalidated by the common-law
doctrine of forum non conveniens. Information Leasing Corp. v. Baxter, 1st Dist.
Hamilton No. C-020029, 2002-Ohio-3930, ¶ 8, 12.
{¶23} Here, however, the contract was an employment contract rather than a
contract between two sophisticated business entities. In Deaconess Homecare, Inc. v.
Waters, 1st Dist. Hamilton No. C-990277, 1999 WL 1488974 (Dec. 8., 1999), the First
Appellate District held that “although the employment contract contained a
forum-selection clause, the contract was not a commercial contract requiring enforcement
without looking at other factors.” Id. at *1.
{¶24} In regard to the second factor, as previously noted, Ohio recognizes the
validity of forum selection clauses, and enforcement of the clause would not violate the
public policy of Ohio. Thus, this factor does not weigh in favor of nonenforcement.
{¶25} As to the third factor, Zilbert has the burden of establishing that it would be
unreasonable or unjust to enforce the forum selection clause. Preferred Capital, Inc. v.
Ferris Bros., Inc., 167 Ohio App.3d 653, 2005-Ohio-6221, 856 N.E.2d 984 (9th Dist.). A finding of unreasonableness or injustice must be based on more than inconvenience to
the party seeking to avoid the forum selection clauses’ requirements. Id.
{¶26} Thus, mere distance, mere expense, or mere hardship to an individual
litigant is insufficient to invalidate a forum selection clause. Salehpour v. Just A Buck
Licensing, Inc., 12th Dist. Warren No. CA2013-03-028, 2013-Ohio-4436, citing IntraSee,
Inc. v. Ludwig, 9th Dist. Lorain Nos. 10CA009916 and 11CA010024, 2012-Ohio-2684, ¶
20. Rather, it must appear that enforcement of the clause would be manifestly and
gravely inconvenient to the party seeking to avoid enforcement such that it will
effectively be deprived of a meaningful day in court. Info. Leasing Corp. v. Jaskot, 151
Ohio App.3d 546, 552, 2003-Ohio-566, 784 N.E.2d 1192 (1st Dist.).
{¶27} In determining whether the selected forum is sufficiently unreasonable,
Ohio courts consider the following factors: (1) which law controls the contractual dispute;
(2) the residency of the parties; (3) where the contract was executed; (4) where the
witnesses and parties to the litigation are located; and (5) whether the forum clause’s
designated location is inconvenient to the parties. Original Pizza Pan v. CWC Sports
Group, Inc., 194 Ohio App.3d 50, 2011-Ohio-1684, 954 N.E.2d 1220 (8th Dist.), citing
Barrett v. Picker Internatl., 68 Ohio App.3d 820, 589 N.E.2d 1372 (8th Dist.1990).
{¶28} In regard to the first factor, as previously stated, the Employment Agreement
includes a choice of law provision that states that the enforcement of the Agreement is
governed by Utah law. Assuming that this provision is valid and enforceable, Proficio
would receive the benefit of its choice of law even if the case is tried in Ohio, since the courts in Ohio would be capable of applying Utah law. No argument has been made that
Ohio law regarding employment discrimination differs from Utah law in any significant
respect. Therefore, this factor does not weigh heavily in favor of one jurisdiction over
the other.
{¶29} As to the second factor, Proficio is a Delaware corporation, with its
principal place of business in the city of Orlando, Orange County, Florida. However,
Proficio maintained and operated an office located at 6100 Rockside Woods Boulevard,
Independence, Ohio. Plaintiff Zilbert, as well as defendants Nagy and Liguzinski are
residents of Ohio. As to the third factor, the Employment Agreements were signed and
executed in Ohio. As to the fourth factor, most, if not all, of the witnesses in this
litigation are located in Ohio.
{¶30} In regard to the fifth factor, since Zilbert, Nagy, and Liguzinski all live in
Ohio, Utah is not a convenient forum for them. Furthermore, although Utah is Proficio’s
forum of choice, it has not shown how Utah would be a more convenient forum for them.
Although Proficio is a Delaware corporation, it conducts business in Ohio. Most, if not
all, of the witnesses and evidentiary materials relevant to the action are in Ohio, which is
the location of Proficio’s offices where Zilbert, as well as where two defendants worked.
Thus, it appears that Utah is not a convenient forum for litigating this action from
Proficio’s perspective, either.
{¶31} Weighing the above factors, we find that enforcing the forum selection
clause in this case would result in litigation in a jurisdiction so unreasonable, difficult, and inconvenient to create a considerable risk that Zilbert would be deprived of his day in
court. The degree of distance between the two states would contribute to a significant
increase in the cost of litigating this action for Zilbert, as well as for defendants Nagy and
Liguzinski. Zilbert was making a modest salary. He might have difficulty securing
witnesses because of the increased cost of witness fees involved in litigating the action in
Utah. Zilbert and any witnesses traveling to Utah would be seriously inconvenienced by
the need to obtain extended leave from jobs or to cover familial obligations.
{¶32} In light of the above analysis, we find that although the arbitration clause
was valid, the forum selection clause should not be enforced in this case. In reaching
this decision, we are not advocating that a forum selection clause in an employment
contract should never be enforced, or freely invalidated, but we do find that the type of
contract can make a difference in determining whether to uphold such a clause.
{¶33} For example, although not in the employment context, this court has
declined to enforce a forum selection clause in an agreement between a noncommercial
entity and an unsophisticated not-for-profit entity. Copelco Capital, Inc. v. St. Mark’s
Presbyterian Church, 8th Dist. Cuyahoga No. 77633, 2001 Ohio App. LEXIS 315 (Feb.1,
2001). The particular circumstances presented in this case, when considered as a
whole, sufficiently warrants the invalidation of the forum selection clause.
Accordingly, we overrule in part, and sustain in part, the first assigned error.
Scope of Arbitration {¶34} In the second assigned error, Zilbert argues that his claims fell outside the
scope of the arbitration agreement. Thus, the trial court should have denied the motion
to stay.
{¶35} In his complaint, Zilbert specifically alleged that he regularly worked 50 to
60 hours per week and was not compensated for the overtime hours in excess of 40 hours
per week. Zilbert alleged that upon complaining to his supervisors, they began
retaliating by making disparaging, anti-Semitic, comments, and jokes. Zilbert alleged
that after announcing his intentions to quit, if the discriminatory conduct did not cease, he
was terminated.
{¶36} A review of Zilbert’s allegations reveal that they all arose out of the course
and scope of his employment with Proficio. Because they arose out of the course and
scope of his employment, they are subject to the arbitration agreement contained in the
Employment Agreement that Zilbert signed. The arbitration agreement specifically
states that the parties waive litigation and trial by jury in any action arising out of or
relating to the Employment Agreement.
{¶37} Based on the foregoing, the trial court did not err when it found that
Zilbert’s claims fell under the auspices of the arbitration agreement. Accordingly, we
overrule the second assigned error.
Non-Signatories to Arbitration Agreement
{¶38} In the third assigned error, Zilbert argues the trial court erred when it stayed
his claims against Nagy and Liguzinski, who were not parties to the agreement. {¶39} Generally, non-signatories to a contract are not subject to its provisions.
Nonetheless, in some circumstances non-signatories to contracts can be contractually
bound by ordinary contract and agency principles. Sovran, 2011-Ohio-5179, ¶ 17, citing
Short v. Resource Title Agency, Inc., 8th Dist. Cuyahoga No. 95839, 2011-Ohio-1577, ¶
14.
{¶40} In the instant case, although Zilbert alleged in his complaint that both Nagy
and Liguzinski were acting in the course and scope of their employment for Proficio, he
now contends that his claims against them are not covered by the arbitration agreement.
However, the arbitration agreement is very broad and encompasses any dispute arising
out of or related to the Employment Agreement.
{¶41} Further, the arbitration agreement specifically states: “It is agreed and
understood that this waiver constitutes a general waiver of litigation and trial by jury for
all claims, including those against parties who are not parties to this agreement.” This
provision clearly encompasses disputes between signatories and non-signatory employees
acting in the course and scope of their employment with Proficio.
{¶42} Because the arbitration agreement covers all claims arising out of the
employment relationship and even applies to disputes involving non-parties to the
agreement, the trial court did not err when it stayed Zilbert’s claims against Nagy and
Liguzinski. Accordingly, we overrule the third assigned error.
Procedural Unconscionability {¶43} In the fourth assigned error, Zilbert argues that the trial court erred in
granting the motion to stay because the arbitration clause is procedurally
unconscionable.
{¶44} In determining whether an agreement is procedurally unconscionable, courts
consider the relative bargaining positions of the parties including each party’s age,
education, intelligence, experience, and who drafted the contract. Taylor at ¶ 44. No
single factor alone determines whether a contract is procedurally unconscionable; a court
must consider the totality of the circumstances. Murea v. Pulte Group, Inc., 8th Dist.
Cuyahoga No. 100127, 2014-Ohio-398, citing Oakridge Home, 122 Ohio St.3d 63,
2009-Ohio-2054, 908 N.E.2d 408 at ¶ 29-30. There is no evidence in the record
regarding Zilbert’s age, educational background, business acumen, or experience.
{¶45} An important consideration is “whether each party to the contract,
considering his obvious education or lack of it, [had] a reasonable opportunity to
understand the terms of the contract, or were the important terms hidden in a maze of fine
print * * *?” Blackburn v. Ronald Kluchin Architects, Inc., 8th Dist. Cuyahoga No.
89203, 2007-Ohio-6647, ¶ 29, quoting Vanyo v. Clear Channel Worldwide, 156 Ohio
App.3d 706, 2004-Ohio-1793, 808 N.E.2d 482 (8th Dist.), ¶ 18, citing Ohio Univ. Bd. of
Trustees v. Smith, 132 Ohio App.3d 211, 724 N.E.2d 1155 (4th Dist.1999).
{¶46} Here, given that he was being hired as mortgage loan officer, Zilbert was
objectively capable of understanding the provisions included in the Employment
Agreement. There are no allegations that an infirmity or incapacity impacted Zilbert’s ability to understand the provisions of the Employment Agreement. As previously
stated, the arbitration agreement was clearly written in capital letters and was
unambiguous.
{¶47} In addition, although Zilbert generally claims that he felt rushed and hurried,
he has put forth no evidence that he was coerced into signing the Employment
Agreement. The record reveals that approximately two weeks passed between Zilbert’s
signing the Employment Agreement and the time the authorized branch and corporate
signatures were affixed to the document. Thus, arguably, Zilbert had the opportunity to
read the Employment Agreement.
{¶48} Further, although Zilbert claims that he believed he had to sign the
Employment Agreement in order to proceed with the job, his affidavit is devoid of any
evidence that he was told he could be denied the position if he wanted to take time to read
the Employment Agreement or have it reviewed by counsel.
There is no evidence of procedural unconscionability under these circumstances. As
such, the trial court did not err when it found the arbitration agreement to be valid and
enforceable. Accordingly, we overrule the fourth assigned error.
{¶49} Judgment affirmed in part, reversed in part, and remanded to the trial court
to order that arbitration be conducted in Ohio.
It is ordered that appellees and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR