[Cite as York v. Ohio Dept. of Transp., 2012-Ohio-3678.]




                                                           Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us



RADIE GRACIE YORK, etc., Admx.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

       Defendants

Case No. 2008-09031

Judge Clark B. Weaver Sr.

DECISION

        {¶ 1} Plaintiff brought this action alleging negligence, wrongful death, and loss of
consortium on behalf of herself and her decedent, Dalphie York. The issues of liability
and damages were bifurcated and the case proceeded to trial on the issue of liability.
At trial, the court APPROVED the parties’ July 21, 2011 stipulation.1
        {¶ 2} On November 30, 2006, York was traveling northbound on Interstate 271 (I-
271) in Summit County, Ohio.                At the time, twin bridges over I-271 were being
constructed by defendants. As part of the construction project, there was a cross-over
and diversion, approximately one mile in length, on northbound I-271. The previously
existing southbound I-271 shoulder had been removed, and temporary northbound
lanes were constructed in the former southbound shoulder.                      The plans for the
northbound cross-over and diversion depicted a one foot paved berm, an 11 foot lane, a
second 11 foot lane, a one foot paved shoulder, and two feet of aggregate shoulder.
(Defendants’ Exhibit C.)              On November 29, 2006, the Ohio Department of

        1
         The parties’ February 17, 2011 stipulation is also APPROVED.
Transportation (ODOT) inspected and approved the cross-over, as constructed by the
contractor, and opened it to the traveling public.
        {¶ 3} Around 10:20 p.m. on November 30, 2006, Isaiah Killen drove his semi-
trailer truck through the construction zone and while he was in the cross-over, his semi-
trailer truck went off the edge of the road and traveled down an embankment. Then, at
11:10 p.m., York was driving his semi-trailer truck through the cross-over and York’s
vehicle also went off the road, down into the embankment, and hit Killen’s semi-trailer
truck. York was transported to a hospital in Akron, Ohio, where he died in January
2007.
        {¶ 4} Plaintiff alleges that ODOT was negligent in designing, inspecting and
approving the opening of the cross-over to the traveling public when it only had a one
foot paved shoulder, the aggregate material was not level with the paved shoulder, and
the strength of the aggregate was deficient. Defendants argue that they did not breach
the standard of care. Alternatively, defendants contend that even if some breach of
duty were established, York’s negligence was greater than any negligence on the part
of ODOT.
        {¶ 5} Isaiah Killen, an over the road truck driver of 12 years, testified that he
drove his semi-trailer truck on I-271 northbound on November 30, 2006. He explained
that he was well-rested when he began his drive from Hilliard, Ohio to northeast Ohio.
He stated that it had been raining throughout the day, but it was not raining when he
entered the construction zone on I-271 around 10:00 p.m. He explained that as he was
driving northbound, there was a cross-over into the southbound lane and that the speed
limit was reduced to 55 miles per hour (mph). Killen stated that he set his cruise control
to 55 mph as he drove through the construction zone. Killen stated that at the start of
the cross-over there was a curve in the road and that the road then becomes straight for
the remainder of the diversion. He explained that he traveled in the right lane of the
cross-over for approximately one quarter mile, and was beyond the curve in the road
when his front right wheels went off the road. He testified that due to a crown in the
road, his semi-trailer truck went right of the lane. According to Killen, he encountered
“softness” as soon as he crossed the white line and knew that he would jackknife if he
attempted to regain control of the semi-trailer truck. He did not attempt to recover into
the lane but instead aimed to keep his semi-trailer truck upright as he went down the
embankment. Killen stated that he had no way to regain control and reenter the lane
because there was a small shoulder. Further, he explained that the gravel next to the
paved shoulder was “as soft as the hill.”
       {¶ 6} Killen testified that he was standing near his vehicle at the bottom of the
embankment when he heard someone yell to him to get out of the way and Killen saw
the headlights from a semi-trailer truck heading toward him. According to Killen, when
York’s semi-trailer truck stopped at the bottom of the embankment, its tracks mirrored
the tracks from his semi-trailer truck. (Plaintiff’s Exhibit 9A.) While Killen did not speak
with York at the accident scene, Killen testified that based on his observations, the
same thing happened to York’s semi-trailer truck that had happened to him.
       {¶ 7} Killen admitted that a driver needs to be more cautious while traveling
through a construction zone.       He testified that he saw signs that identified the
construction zone and that the edge lines were bright and visible. He explained that it is
easy to travel right of the lane because a semi-trailer truck takes up the entire lane;
however, he admitted that he has an obligation to drive his vehicle in the marked lanes.
       {¶ 8} Plaintiff testified that she had been married to York for 31 years. Plaintiff
testified that York worked as a truck driver for a small company in Texas and that he
had been a truck driver for approximately 40 years.        After York’s accident, plaintiff
traveled to the hospital in Akron, Ohio to be with her husband. While he was in the
hospital, York told plaintiff that on the day of the accident, it had been raining and that
as he was driving on I-271, the road “gave away.”         York subsequently died in the
hospital.
       {¶ 9} In order for plaintiff to prevail upon her claim of negligence and wrongful
death predicated upon negligence, she must prove by a preponderance of the evidence
that defendants owed plaintiff’s decedent a duty, that defendants’ actions or omissions
resulted in a breach of that duty, and that the breach proximately caused plaintiff’s
decedent’s injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-
2573, ¶8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77 (1984); Galay
v. Dept. of Transp. 10th Dist. No. 05AP-383, 2006-Ohio-4113, ¶7.
       {¶ 10} Although ODOT is not an insurer of the safety of the state’s highways,
ODOT has a general duty to maintain and repair state highways such that they are free
from unreasonable risk of harm to the motoring public, and this duty is owed both under
normal traffic conditions and during highway construction projects. Roadway Express,
Inc. v. Ohio Dept. of Transp., 10th Dist. No. 00AP-1119 (June 28, 2001). However,
“ODOT cannot guarantee the same level of safety during a highway construction project
as it can under normal traffic conditions. * * * ODOT is, nonetheless, required to provide
the traveling public with a reasonable degree of safety in construction zones by way of
utilizing traffic control barrels, reducing the applicable speed limit, and erecting
construction warning signs. * * * [A] court must look at the totality of the circumstances
in determining whether ODOT acted sufficiently to render the highway reasonably safe
for the traveling public during the construction project.”    Basilone v. Ohio Dept. of
Transp., 10th Dist. No. 00AP-811 (Feb. 13, 2001), citing Feichtner v. Ohio Dept. of
Transp., 114 Ohio App.3d 346 (10th Dist.1995).
       {¶ 11} Plaintiff presented the testimony of Andrew Ramisch, who is the president
of Product & Highway Safety Institute and a registered professional engineer in
Washington, D.C. In preparing for his testimony, he reviewed depositions, pleadings,
the Ohio standards for construction, federal standards for highway safety, the traffic
crash report, and the video taken by ODOT the day after the accident. However, he did
not reconstruct York’s accident.
       {¶ 12} Section 630-5(2)(c)(vii) of ODOT’s Traffic Engineering Manual, as revised
on July 16, 2004, states:
       {¶ 13} “2. For Interstate and Interstate Look-alike Work Zones (Major and Minor
Projects):
       {¶ 14} “* * *
       {¶ 15} “c. The following shall be used to create the cross/transverse sections in
2b:
       {¶ 16} “* * *
       {¶ 17} “vii. Show a 2 foot (0.6 meter) paved shoulder where possible; and indicate
locations where this is not possible.” (Plaintiff’s Exhibit 12.)2
       {¶ 18} Regarding the width of the paved shoulder, Ramisch testified that the
ODOT standard at the time of York’s accident required a minimum of two feet of paved
shoulder and that the shoulder where the accident occurred was only one foot and
therefore did not meet this requirement. Further, Ramisch testified that there were no
space restrictions making a two foot paved shoulder impossible to construct. Ramisch
testified that this section creates a mandatory duty upon ODOT that should have been
applied to the I-271 construction project. Ramisch stated that the cross-over was an
unreasonably dangerous condition.
       {¶ 19} Ramisch admitted that when the construction project was designed, the
one foot paved shoulder in the cross-over complied with ODOT specifications; however,
he testified that when the ODOT standards changed in July 2004, the I-271 construction
plans should have been revised. Further, he testified that even though the designs in
this construction project were submitted before the two foot paved shoulder language
was incorporated into ODOT documents, Ramisch opined that ODOT was negligent in
failing to incorporate the two foot shoulder into the plans for this construction project.
       {¶ 20} Ramisch testified that it is foreseeable that people will drive outside of the
travel lane and a wider “recovery area” enables a driver to recover into the travel lane.
Ramisch expressed no opinion as to why York crossed the white line. According to
Ramisch, York’s semi-trailer truck had approximately one and a half feet on each side
as it traveled in the right lane through the construction zone.
       {¶ 21} Ramisch testified that ODOT should have followed the United States
Department of Transportation (USDOT) guidelines when section 630-5(2)(c)(vii) of
ODOT’s Traffic Engineering Manual was updated in 2004. The USDOT Highway Safety
Program Manual No. 12, Highway Design, Construction, and Maintenance states,
“[s]afety features that were inadvertently excluded or developed subsequent to the
design phase should be incorporated during the construction phase.” (Plaintiff’s Exhibit
6.) However, on cross-examination, Ramisch admitted that this federal manual is a
“guide” for states and that the manual says that it is to be used to assist states in

       2
        Plaintiff’s Exhibit 5 is a more recent edition of the Traffic Engineering Manual and the language
preferred highway safety practice. Ramisch was not aware if ODOT has adopted the
retroactive provision contained in the USDOT manual.
        {¶ 22} Regarding the aggregate surface adjacent to the paved shoulder, Ramisch
testified that based upon his observations of the photograph contained in Plaintiff’s
Exhibit 9V, the difference in the elevation between the shoulder and the aggregate is
greater than the half inch differential allowed by Ohio standards. He opined that ODOT
was negligent in allowing the road to open with this type of “drop-off” between the paved
shoulder and the aggregate. However, he admitted that he could not say where York’s
semi-trailer truck went off the road in relation to the aggregate appearing in the
photograph.
        {¶ 23} Further, examining the photograph contained in Plaintiff’s Exhibit 9F,
Ramisch stated that the tire tracks visible in the aggregate indicates the aggregate’s
instability and compactability. Ramisch explained that if the aggregate was properly
supported, the tire imprints would not be visible. Ramisch testified that ODOT could
have tested the aggregate to determine if it was stable but that there was no evidence
that this test was done. Further, Ramisch testified that while it rained on the day of the
accident, one day of rain should not have impacted the integrity of the aggregate.
Ramisch opined that if ODOT had built a two foot shoulder as well as a strong
aggregate, plaintiff would have had time to recover when his vehicle traveled right of the
lane.
        {¶ 24} Sava Gmitric has been employed by ODOT for 22 years and has been a
transportation engineer II for the last 15 years. He testified that he was the project
engineer on the I-271 construction project involving the building of twin bridges. He
became involved with this project in the summer of 2005 when construction began.
Gmitric explained that he was the highest level ODOT official on the job site and that as
such he was responsible for administrating the contract on-site to ensure that
construction was completed by the contractor according to the design plans.               He
explained that while the contractor performed the work on the project, ODOT inspected
the work, checked the quality of materials, and ensured that the work complied with the
design plans and specifications. Further, he stated that ODOT had to give the final


formerly contained in section 630-5(2)(c)(vii) now appears in section 630-5(2)(b)(vii).
approval to open the cross-over and ODOT could tell the contractor if the cross-over
needed to be changed before it was opened to traffic. Gmitric testified he approved the
cross-over to open on November 29, 2006, after an inspection that the cross-over
complied with the design plans.           Gmitric testified that he was called to the scene
of the two accidents on November 30, 2006. He could see where the two semi-trailer
trucks went off the road and he noted that they both left the road near the same
location. Further, the following morning he drove through the construction zone on I-
271 to take a videotape of the accident scene. (Plaintiff’s Exhibit 11.)
       {¶ 25} Gmitric testified that he did not use the Traffic Engineering Manual on the
project. Further, he stated that he was not familiar with section 630-5(2)(c)(vii) at the
time of the accident. He testified that ODOT built “what the plan said to build” and that
he did not know about the provision in the manual.
       {¶ 26} Gmitric testified that to the right of the one foot paved shoulder in the
cross-over was two feet of aggregate shoulder, and that he was familiar with aggregate
material and how it was used on this job.         According to Gmitric, ODOT tested its
materials off-site and when the aggregate material arrived at the construction site, the
material had a ticket stating that it was ODOT approved. Further, examining Plaintiff’s
Exhibit 10, Gmitric could not determine if the aggregate material was at a lower level
than the asphalt shoulder.
       {¶ 27} David Holstein, a licensed engineer in Ohio, is employed by ODOT as the
State Traffic Engineer, and he has held this position for approximately 10 years. In this
position, he publishes manuals and determines policy and standards.               Holstein
explained that he wrote the language contained in section 630-5(2)(c), as revised on
July 16, 2004. He testified that section 630-5 of the Traffic Engineering Manual, entitled
“Maintenance of Traffic Alternative Analysis (MOTAA),” is consulted in the design
process, and it assists designers in identifying and solving potential problems as they
design the project. He stated that a two foot shoulder is not mandatory.
       {¶ 28} Holstein explained that while the revision to section 630-5(2)(c) occurred
on July 16, 2004, the design plans for the I-271 project were approved in September
2004. Holstein testified that the plans for the I-271 project were well beyond the stage
of performing a MOTAA when the two foot paved shoulder was first recommended by
the Traffic Engineering Manual in July 2004.      Holstein stated that ODOT does not
retroactively apply major changes to a design plan.      While minor changes can be
incorporated into the plan, he testified that no project would ever be completed if major
changes were applied retroactively. Further, regarding the USDOT manual (Plaintiff’s
Exhibit 6), Holstein testified that ODOT has not approved this federal manual. Holstein
testified that ODOT has not adopted, as a standard, the language in the USDOT
publication requiring subsequent safety features to be incorporated during the
construction phase.
      {¶ 29} Holstein testified that a bituminous aggregate is a type of aggregate with
an asphalt binder and that it is stronger than the aggregate material that was used on
the cross-over on I-271. However, he explained that section 640-5.2 of the Traffic
Engineering Manual did not require the use of a bituminous aggregate on I-271.
(Plaintiff’s Exhibit 5.) Holstein explained that according to section 640-5.2, bituminous
aggregate is recommended only when an existing shoulder is used as a travel lane in a
construction zone.    However, he explained that on the I-271 project, the existing
shoulder was not used as a travel lane; instead, new lanes were constructed in the
location of the former southbound shoulder, which had been torn apart.           Further,
Holstein testified that the language says that a bituminous aggregate should be used,
meaning that it is not a mandatory requirement.
      {¶ 30} The court finds Holstein’s opinion to be more credible than Ramisch on the
standard imposed, if any, by section 630-5(2)(c) of the Traffic Engineering Manual.
Ramisch admitted that he has never worked for ODOT, he has never put his seal on
any highway design plans, he has never interpreted the Traffic Engineering Manual
before, yet he testified that section 630-5(2)(c)(vii) places a mandatory duty upon
ODOT.    The court finds that Holstein, who authored this language in the Traffic
Engineering Manual, was more credible in his testimony. Specifically, Holstein testified
that section 630-5(2)(c) of the Traffic Engineering Manual is used in the design phase of
a construction project; that section 630-5(2)(c)(vii) is not a mandatory standard but is
part of the MOTAA planning process to assist the designer of the construction project.
While Gmitric admitted that he was not aware of this section of the Traffic Engineering
Manual, the court finds that his inspection of the contractor’s work prior to the opening
of the cross-over did not require him to use this section of the Traffic Engineering
Manual. Instead, Gmitric had to determine that the contractor’s work complied with the
design plans, which only required a one foot paved shoulder. The court finds that
defendants did not breach a duty imposed by the Traffic Engineering Manual.
        {¶ 31} York’s accident occurred on November 30, 2006, and the Traffic
Engineering Manual was revised on July 16, 2004. Gmitric testified that the first page of
the I-271 project plan states that ODOT’s 2002 specifications govern the project.
Further, the project was approved by the district deputy director on September 15,
2004, and it was approved by ODOT’s director on November 3, 2004. (Defendants’
Exhibit A.) Holstein explained that the I-271 project was well beyond the design phase
when the change in section 630-5(2)(c)(vii) occurred. Even plaintiff’s expert admitted
that the construction plans had been finalized when section 630-5(2)(c)(vii) was added
to the Traffic Engineering Manual.              ODOT did not adopt USDOT’s guideline that
subsequent safety features should be incorporated during the construction phase.
Accordingly, the court finds that ODOT did not breach any duty when it did not
incorporate the two foot paved shoulder into the design plans for the I-271 project.
        {¶ 32} Further, defendants argue that even if section 630-5(2)(c)(vii) of the Traffic
Engineering Manual imposes a mandatory duty, they are entitled to discretionary
immunity regarding ODOT’s decision not to update previously existing plans when new
safety guidelines are put into effect. In her reply to defendants’ post-trial brief, plaintiff
argues that defendants failed to raise discretionary immunity as an affirmative defense
in their answer and thereby waived it. Discretionary immunity is an affirmative defense
that should be set forth in defendants’ answer; however, it is not waived if the defense is
raised at trial and the issue is tried with the express or implied consent of the parties
pursuant to Civ.R. 15(B). Pottenger v. Ohio Dept. of Transp., 10th Dist. No. 88AP-832
(Dec. 7, 1989).3 In her opening statement, plaintiff stated that ODOT’s policy not to


        3
          Civ.R. 15(B) states: “When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after judgment. Failure to
amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to
at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence
update design plans when a safety measure is subsequently updated is “bad policy.”
Further, plaintiff’s expert testified that it is a “lousy policy” if ODOT does not incorporate
subsequent safety measures into previously designed construction plans. Accordingly,
the court finds that plaintiff consented to try the issue of defendants’ discretionary
immunity.
       {¶ 33} It is well established that “the state cannot be sued for its legislative or
judicial functions or the exercise of an executive or planning function involving the
making of a basic policy decision which is characterized by the exercise of a high
degree of official judgment or discretion.” Reynolds v. State, 14 Ohio St.3d 68, 70
(1984); Pottenger, supra. ODOT’s decision as to whether to increase the width of the
paved shoulder when section 630-5(2)(c) of the Traffic Engineering Manual was
updated is clearly a policy decision of such nature.          Holstein testified that ODOT
generally does not apply subsequently developed design procedures but that they may
be incorporated for minor changes. Further, he explained that no projects would ever
be completed if all subsequent updates were incorporated into previously existing
design plans. ODOT’s decision not to incorporate the two foot paved shoulder is the
type of discretionary decision that is entitled to the protection discretionary immunity.
See Kniskern v. Township of Somerford, 112 Ohio App.3d 189 (10th Dist.1996). The
court concludes that ODOT is entitled to discretionary immunity for its decisions
surrounding the incorporation of subsequent design guidelines.
       {¶ 34} Plaintiff also argues that ODOT was negligent in failing to properly inspect
the aggregate material adjacent to the paved shoulder as it was constructed by the
contractor.   Ramisch testified that based on his observations of the photograph
contained in Plaintiff’s Exhibit 10, the difference in elevation between the paved
shoulder and the aggregate was at least two inches. However, Gmitric testified that he
could not determine the difference in elevation while looking at the same photographs.
       {¶ 35} Further, plaintiff has failed to convince the court that the aggregate
material was too soft. Ramisch testified that ODOT could have tested the aggregate to
determine its strength and that there was no record indicating that ODOT performed this
test. However, Ramisch also admitted that aggregate compaction tests are usually not


would prejudice him in maintaining his action or defense upon the merits. The court may grant a
conducted for temporary roads, like the one involved in this case.             Furthermore,
Ramisch admitted that he was not aware that ODOT had any notice that the shoulder
was soft.
        {¶ 36} Finally, regarding the strength of the aggregate, Holstein admitted that a
bituminous aggregate would have made the aggregate stronger.                  However, he
explained that section 640-5.2 of ODOT’s Traffic Engineering Manual, which requires
that an aggregate surface be constructed with a bituminous surface, did not apply to the
cross-over at issue because an existing shoulder was not used as a travel lane and
section 640-5.2 only applies when a shoulder is used as a travel lane. The court finds
that ODOT did not breach any duty in not using a bituminous aggregate on the I-271
project inasmuch as new northbound lanes were constructed in the location of the
former southbound shoulder and an existing shoulder was not used as a travel lane.
Accordingly, the court finds that plaintiff has failed to prove by a preponderance of the
evidence that ODOT breached any duty in its inspection of the aggregate material.
        {¶ 37} Finally, the court finds that the cross-over in the construction zone was
reasonably safe for the traveling public. Killen testified that a driver has an obligation to
drive his vehicle within the marked lanes. Further, Ramisch admitted that York’s semi-
truck trailer had one and a half feet on either side of the vehicle as he traveled through
the lane in the cross-over. Accordingly, the court finds that defendants did not breach
their duty in the inspection and approval of the cross-over as it pertained to the one foot
paved shoulder and that the road was reasonably safe for the motoring public.
        {¶ 38} The court finds that ODOT maintained I-271 in a reasonably safe condition
for the traveling public during the construction project. Killen testified that he saw signs
alerting drivers of the construction zone as he approached the cross-over. He also
testified that the edge lines were very bright and that there were reflectors on the road.
Ramisch admitted that throughout the cross-over there was a bright edge line on the
road, reflectors on the edge of the road, reflective delineators next to the roadway, and
overhead lighting. Further, Gmitric testified that there were raised pavement markers
on both the edge lines and the center lines. Ramisch also admitted that he found no
fault with ODOT’s signage throughout the construction zone. The court finds that the


continuance to enable the objecting party to meet such evidence.”
signs, reduced speed, reflective delineators, and bright edge lines all made the cross-
over on I-271 reasonably safe for the traveling public.
       {¶ 39} Even assuming arguendo that ODOT was negligent, plaintiff would not
prevail. The issue of whether decedent was also negligent must be analyzed under
comparative negligence. The common law of Ohio imposes a duty of reasonable care
upon motorists that includes the responsibility to observe the environment in which one
is driving. See Hubner v. Sigall, 47 Ohio App.3d 15, 17 (10th Dist.1988). Testimony
provided that the two lanes in the cross-over were each 11 feet wide, with a 1 foot berm
on each side. As Ramisch testified, York had one and a half feet of space on each side
of his semi-trailer truck as he drove in his lane through the cross-over. The court finds
that any alleged breach by defendant is outweighed by York’s own negligence in failing
to observe the roadway and failing to maintain control of his vehicle in his lane of travel.
       {¶ 40} For the foregoing reasons, the court finds that plaintiff has failed to prove
that defendants were negligent in their design and inspection of the construction zone.
Inasmuch as plaintiff failed to prove her claims by a preponderance of the evidence, the
derivative claim for loss of consortium also must fail. See Bowen v. Kil-Kare, Inc., 63
Ohio St.3d 84, 93 (1992).        Accordingly, judgment shall be rendered in favor of
defendants.
                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



RADIE GRACIE YORK, etc., Admx.

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

      Defendants

Case No. 2008-09031

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY

      {¶ 41} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendants.       Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.


                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                   Judge

cc:


Jonathan D. Mester                   Mark R. Wilson
Thomas Mester                        William C. Becker
1370 Ontario Street, Suite 100       Assistant Attorneys General
Cleveland, Ohio 44113-1792           150 East Gay Street, 18th Floor
                                     Columbus, Ohio 43215-3130

007
Filed March 12, 2012
To S.C. reporter August 15, 2012
