[Cite as Jeffers v. Athens Cty. Commrs., 2011-Ohio-675.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ATHENS COUNTY

State of Ohio, ex rel.
Richard Jeffers,                                           :
                                                           :
             Relator-Appellant/Appellee,                   :     Case Nos: 10CA3 & 10CA15
                                                           :
             v.                                            :
                                                           :     DECISION AND
Athens County Commissioners, et al.,                       :     JUDGMENT ENTRY
                                                           :
             Respondents-Appellees/Appellants.             :   File-stamped date: 2-9-11



                                            APPEARANCES:

John P. Lavelle and Robert R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for
Richard Jeffers, Relator-Appellant\Appellee.

C. David Warren, Athens County Prosecutor, Athens, Ohio, Robert H. Stoffers,
Mazanec, Raskin, Ryder & Keller Co., Columbus, Ohio, and Douglas C. Boatright,
Isaac, Brant, Ledman & Teetor, LLP, of Columbus, Ohio, for the Board of Athens
County Commissioners, Respondents-Appellees/Appellants.


Kline, J.:

{¶1}         The Board of Athens County Commissioners (“Board”) vacated two roads.

Richard Jeffers appealed the Board’s two decisions to the Athens County Common

Pleas Court (“trial court”), which dismissed both appeals. Jeffers now appeals the trial

court’s dismissal of the appeals to this court. After review, we find that the trial court did

not abuse its discretion in dismissing the appeals.
Athens App. Nos. 10CA3 & 10CA15                                                     2


{¶2}     In a separate case, the trial court issued a writ of mandamus, which

commanded the Board to institute damages proceedings under Chapter 163 of the

Revised Code. The Board now appeals the trial court’s issuance of the writ of

mandamus. On appeal, the Board first claims that the trial court erred because it did

not carry out a mandate from a prior opinion issued out of our court. Specifically, the

Board asserts that our prior opinion only afforded Jeffers the right to a damages hearing

before the Board, instead of proceedings under Chapter 163 of the Revised Code.

Because we find that the lower court correctly applied our previous opinion in this case,

we disagree. The Board next contends that an amendment to the Revised Code no

longer requires it to institute proceedings under Chapter 163 of the Revised Code.

Because we find that the lower court correctly determined that these changes to the

Revised Code are prospective only and do not apply to the mandamus action, we

disagree. Accordingly, we find that the trial court did not abuse its discretion in issuing

the writ of mandamus.

{¶3}     The Board raises four other assignments of error. But all of these assignments

go to the issue of damages. Since the Board may prevail on these issues in its

proceedings under Chapter 163 of the Revised Code, we find that these issues are not

yet ripe for review.

{¶4}     Accordingly, we affirm the judgments of the trial court.

                                             I.

{¶5}     As the trial court noted, these cases have a tortured history. The dispute

between the parties stems from the decisions of the Board to vacate two roads in 2004.

We lay out only the most basic facts. A more detailed statement of the facts is
Athens App. Nos. 10CA3 & 10CA15                                                      3


contained in our previous decision in Jeffers v. Bd. of Athens Cty. Commrs., Athens

App. No. 06CA39, 2007-Ohio-2458.

{¶6}     Essentially, this case concerns three cases before the trial court. Cases

04CI0282 and 04CI0324 are appeals to the trial court from the determination of the

Board that the vacations of Red Lane Road and Jeffers Road were for the public

convenience and welfare of Athens County. These cases were consolidated before the

trial court, and they are designated case number 10CA3 before this court. Case

number 06CI0190 is a mandamus action before the trial court. In this action, Jeffers

filed a petition requesting a writ of mandamus to order the Board to institute damages

proceedings pursuant to Chapter 163 of the Ohio Revised Code.

{¶7}     In the mandamus action, Jeffers amended the complaint to add various claims.

Jeffers included a series of claims for money damages under Section 1983, Title 42,

U.S.Code. Essentially, these claims rely on the same facts as Jeffers’s claim for

mandamus. That is, Jeffers alleged that the Board was obliged to institute proceedings

under Chapter 163 of the Ohio Revised Code, and its failure to do so harmed Jeffers by

violating various constitutional rights.

{¶8}     At one point in the litigation, Jeffers filed a motion indicating that he intended to

proceed solely on the issue of damages. The motion indicated that Jeffers “is willing to

forego the O.R.C. § 5563.10 appeal on the public convenience and necessity issue as

to whether Alexander Township Roads, # 548 and 544, Red Lane and Jeffers Road

should be closed, when a proper Chapter 163.01 Petition and deposit of monies is filed

by the appropriating authorities.” (Emphasis in original). In other words, Jeffers

decided that he now wished to proceed only on his mandamus action to force the Board
Athens App. Nos. 10CA3 & 10CA15                                                     4


to hold damages hearings pursuant to R.C. 163.01-163.63. This is evidenced by the

following statement from the trial court at a hearing held on November 16, 2009: “I had

deduced that Mr. Jeffers was essentially saying I’ve decided to give up on this issue of

whether it was wise or not wise to close these roads and I just want to have a damages

trial, jury trial. That was what I thought I heard him say. And I then tried to express

what my conclusions would be if that were Mr. Jeffers’[s] decision. And I concluded that

I’d have to dismiss the appeals and the [Board] would have been successful in closing

the roads.” Jeffers’s attorney stated, “[y]our Honor, I think you’ve accurately

summarized the status of the proceedings.”

{¶9}     The trial court issued an order that dismissed Jeffers’s appeals on December

16, 2009. Jeffers appealed this dismissal on January 15, 2010. The trial court then

issued the separate writ of mandamus on April 5, 2010. The Board appealed the

issuance of the writ on May 4, 2010.

{¶10}    In case number 10CA03, Jeffers assigns the following error for our review:

“The Trial Court erred in dismissing Appellant’s road closure appeal, which was based

upon an express condition that had not yet been satisfied.”

{¶11}    In case number 10CA15, the Board assigns the following six errors for our

review: I. “JEFFERS HAS RECEIVED THE HEARINGS ORDERED BY THIS COURT

IN ITS RULING IN RICHARD L. JEFFERS V. BOARD OF ATHENS COUNTY

COMMISSIONERS, FOURTH DISTRICT COURT OF APPEALS, CASE NO. 06CA39.”

II. “JEFFERS IS NOT ENTITLED TO A REVISED CODE CHAPTER 163 HEARING

HEREIN BECAUSE REVISED CODE SECTION 5553.11 NO LONGER REQUIRES

SUCH HEARINGS IN ROAD VACATION MATTERS.” III. “JEFFERS SUSTAINED NO
Athens App. Nos. 10CA3 & 10CA15                                                      5


DAMAGES AS A RESULT OF THE VACATION OF ALEXANDER TOWNSHIP ROAD[]

548 BECAUSE HE COULD NOT HAVE USED ALEXANDER TOWNSHIP ROAD 548

FOR AN INGRESS AND EGRESS ONTO HIS PROPOSED SUBDIVISION.” IV. “THE

VACATION OF ALEXANDER TOWNSHIP ROADS 548 AND 554 HAS NOT CHANGED

JEFFERS USE OF THE ROADWAY BECAUSE THE VACATION OF ROADS BY

PRESCRIPTIONS DO NOT CLOSE THE ROADS BUT MERELY CONVERT THEM TO

PRIVAT[E] DRIVES WHICH ABUTTING LAND OWNERS MAY CONTINUE TO USE.”

V. “JEFFERS MAY NOT USE HIS PROPOSED SUBDIVISION AS SUPPORT OF

LOSS OF VALUE OF HIS PROPERTY AS A RESULT OF THE VACTION OF

ALEXANDER TOWNSHIP ROAD 548.” And, VI. “THE VACATION OF ALEXANDER

TOWNSHIP ROADS [54]8 AND 554 DID NOT LANDLOCK JEFFERS’ PROPERTY.”

                                            II.

{¶12}    We first consider Jeffers’s appeal from the trial court’s dismissal of his appeals

challenging the vacation of the roads. Essentially, the trial court dismissed these

appeals under the authority of Civ.R. 41(A)(2). This rule provides that “a claim shall not

be dismissed at the plaintiff’s instance except upon order of the court and upon such

terms and conditions as the court deems proper.” Civ.R. 41(A)(2).

{¶13}    We review the decision of a trial court to dismiss an action under Civ.R.

41(A)(2) for an abuse of discretion. Edwards v. Reser, Ottawa App. No. OT-07-022,

2007-Ohio-6520, at ¶39, citing Capital One Bank v. Woten, 169 Ohio App.3d 13, 2006-

Ohio-4848, at ¶14, in turn citing Douthitt v. Garrison (1981), 3 Ohio App.3d 254, 256.

{¶14}    “An abuse of discretion connotes more than a mere error of judgment; it

implies that the court’s attitude is arbitrary, unreasonable or unconscionable.” Pryor v.
Athens App. Nos. 10CA3 & 10CA15                                                       6


Pryor, Ross App. No. 09CA3096, 2009-Ohio-6670, at ¶22, citing Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219. In order to demonstrate an abuse of

discretion, “the result must be so palpably and grossly violative of fact or logic that it

evidences not the exercise of will but the perversity of will, not the exercise of judgment

but the defiance of judgment, not the exercise of reason but instead passion or bias.”

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159.

{¶15}      In the November hearing quoted above, the trial court explained that if Jeffers

no longer wished to contest the vacation of the roads the trial court would “have to

dismiss the appeals and the [Board] would have been successful in closing the roads.”

Jeffers then agreed with this statement as a summary of the proceedings. The trial

court evidently understood this as Jeffers requesting that the trial court dismiss the

appeals in cases 04CI0282 and 04CI0324. At the end of the hearing the trial court

stated it would “assume I could dismiss two of the three files here.” Jeffers’s counsel

raised no objections or qualms before the trial court in regard to this statement. This

being so, we cannot say that the trial court abused its discretion in dismissing Jeffers’s

appeals.

{¶16}      Accordingly, we overrule Jeffers’s sole assignment of error.

                                              III.

{¶17}      We now turn to the Board’s appeal from the trial court’s issuance of the writ of

mandamus. Before we consider the Board’s assignments of error, we first consider

Jeffers’s argument that the writ is not a final appealable order because the order

granting the writ did not address other claims contained in the complaint for mandamus.
Athens App. Nos. 10CA3 & 10CA15                                                    7


In short, Jeffers contends that the order fails to resolve other claims between the parties

that touch on the same facts as the mandamus claim.

                 A. The Writ of Mandamus is a Final Appealable Order

{¶18}    “Ohio law provides that appellate courts have jurisdiction to review the final

orders or judgments of inferior courts in their district.” Caplinger v. Raines, Ross App.

No. 02CA2683, 2003-Ohio-2586, at ¶2, citing Section 3(B)(2), Article IV, Ohio

Constitution; R.C. 2505.02. “If an order is not final and appealable, then we have no

jurisdiction to review the matter.” Saunders v. Grim, Vinton App. Nos. 08CA668 &

08CA669, 2009-Ohio-1900, at ¶5.

{¶19}    “A final order * * * is one disposing of the whole case or some separate and

distinct branch thereof.” Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306.

“An order which adjudicates one or more but fewer than all the claims presented in an

action also must meet the requirements of Civ.R. 54(B) in order to be final and

appealable.” Oakley v. Citizens Bank of Logan, Athens App. No. 04CA25, 2004-Ohio-

6824, at ¶9, citing Noble v. Colwell (1989), 44 Ohio St.3d 92, syllabus. Civ.R. 54(B)

provides that “[w]hen more than one claim for relief is presented in an action whether as

a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the

same or separate transactions, or when multiple parties are involved, the court may

enter final judgment as to one or more but fewer than all of the claims or parties only

upon an express determination that there is no just reason for delay.”

{¶20}    The trial court made a finding under Civ.R. 54(B) that “there is no just reason

for delay.” This finding under Civ.R. 54(B) is akin to a factual finding. See Wisintainer

v. Elcen Power Strut Co., 67 Ohio St.3d 352, 355, 1993-Ohio-120. “In making its factual
Athens App. Nos. 10CA3 & 10CA15                                                       8


determination that the interest of sound judicial administration is best served by allowing

an immediate appeal, the trial court is entitled to the same presumption of correctness

that it is accorded regarding other factual findings.” Id. “‘While this is a very deferential

standard, and appellate courts are reluctant to strike such a certification, the trial court’s

use of the ‘magic language’ of Civ.R. 54(B) does not, by itself, convert a final order into

a final appealable order.’” Bell v. Turner, Highland App. Nos. 09CA20 & 09CA21, 2010-

Ohio-4506, at ¶11, quoting Oakley at ¶11 (emphasis sic).

{¶21}    Typically, a judgment is not a final appealable order if it resolves one claim but

leaves unresolved other claims that touch on the same factual issues, regardless of

Civ.R. 54(B) language. See Portco, Inc. v. Eye Specialists, Inc., 173 Ohio App.3d 108,

2007-Ohio-4403, at ¶10 (finding that a judgment must resolve all claims before judicial

economy would be served by considering the appeal because the claims and

counterclaims all touch on the same facts). However, based on the unusual posture of

this case, we find that the trial court correctly determined that the interest of sound

judicial administration supports our consideration of this appeal now.

{¶22}    The difficulty is that in addition to his claim for a writ of mandamus, Jeffers

included a series of claims for damages under Section 1983, Title 42, U.S.Code.

Essentially, these claims rely on many of the same facts as Jeffers’s claim for

mandamus.

{¶23}    But we find that the issuance of the writ of mandamus disposes of these

actions, at least for the moment. Under Ohio law, a plaintiff must first exhaust the

remedies available under mandamus before the plaintiff can pursue an action under

Section 1983. Home Builders Assn. of Dayton & Miami Valley v. Lebanon, 167 Ohio
Athens App. Nos. 10CA3 & 10CA15                                                       9


App.3d 247, 2006-Ohio-595, at ¶42-43; see, also, River City Capital, L.P. v. Bd. of Cty.

Commrs., Clermont Cty., Ohio (C.A.6, 2007), 491 F.3d 301, 307. Therefore, Jeffers

must exhaust his potential mandamus relief before he may pursue relief under Section

1983. Therefore, all that remains for the constitutional claims is for the trial court to

either stay them pending the resolution of the mandamus action or to dismiss them. We

offer no opinion on which solution is more procedurally correct.

{¶24}     At a minimum, the trial court would need to stay the various constitutional

claims. And if the claims were merely stayed during the pendency of the mandamus

order, they would effectively prevent appellate review until after the Board had already

complied with the mandamus order. This would render any appeal from the writ of

mandamus moot, effectively preventing mandamus review. If appellate review is to be

had of the writ of mandamus, then it must be now because the trial court may take no

further actions in regard to the constitutional claims until after the completion of the

mandamus action. We therefore conclude that the trial court correctly determined that

the interests of sound judicial administration support our review of the writ of mandamus

at this time.

{¶25}     Accordingly, we conclude that the order appealed in this case is a final

appealable order and that we have jurisdiction over the same.

                                   B. Writ of Mandamus

{¶26}     The Board raises six assignments of error for our review. Of these

assignments of error, the first two concern whether Jeffers was entitled to the writ of

mandamus. We will consider these assignments of error together. “Mandamus is a

writ, issued in the name of the state to an inferior tribunal, a corporation, board, or
Athens App. Nos. 10CA3 & 10CA15                                                   10


person, commanding the performance of an act which the law specially enjoins as a

duty resulting from an office, trust, or station.” R.C. 2731.01. “‘Mandamus is the

appropriate action to compel public authorities to institute appropriation proceedings

where an involuntary taking of private property is alleged.’” State ex rel. Duncan v.

Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, at ¶11, quoting State ex rel.

Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63, 2002-Ohio-1627.

{¶27}    In order to be entitled to a writ of mandamus, Jeffers must establish that he

had a clear legal right to the requested relief, that the Board had a corresponding clear

legal duty to comply, and that Jeffers has no adequate remedy in the ordinary course of

the law. See State ex rel. Savage v. Caltrider, 100 Ohio St.3d 363, 2003-Ohio-6806, at

¶8, citing State ex rel. Ferguson v. Court of Claims of Ohio, Victims of Crime Div., 98

Ohio St.3d 399, 2003-Ohio-1631, at ¶10. We review a trial court’s decision on whether

to issue a writ of mandamus under the abuse of discretion standard. Athens Cty.

Commrs. v. Ohio Patrolmen’s Benevolent Assn., Athens App. No. 06CA49, 2007-Ohio-

6895, at ¶45, citing Truman v. Village of Clay Center, 160 Ohio App.3d 78, 2005-Ohio-

1385, at ¶16.

{¶28}    The Board’s first assignment of error is that Jeffers received all the hearings

required after our previous remand in this case. Our prior opinion stated: “If the Board

and Jeffers agree on the proper amount of compensation, then the road is legally

vacated once the agreed amount is paid. But, if the Board and Jeffers do not agree,

then the road is not legally vacated until the amount of compensation and damages is

paid as determined in accordance with Revised Code Chapter 163. Therefore,

assuming that negotiations have failed, the only way for the Board and Jeffers to know if
Athens App. Nos. 10CA3 & 10CA15                                                   11


they agree or disagree is for the Board to hold a hearing on the issue and determine the

amount.” Jeffers at ¶10. The Board contends, based on this language, that “[t]he

remand was for a hearing before the [Board], not a Revised Code Chapter 163 hearing.”

Merit Brief of the Board at 11. This argument is without merit.

{¶29}    The hearing before the Board was to determine whether Jeffers and the Board

agreed on the proper amount of compensation. Evidently, Jeffers and the Board do not

agree on the proper amount of compensation. Our prior opinion clearly states that, “if

the Board and Jeffers do not agree, then the road is not legally vacated until the amount

of compensation and damages is paid as determined in accordance with Revised Code

Chapter 163.” Id. Accordingly, the trial court did not abuse its discretion in ordering the

Board to comply with Revised Code Chapter 163 based on our prior opinion, and we

overrule the Board’s first assignment of error.

{¶30}    In its second assignment of error, the Board contends that the trial court erred

by issuing the writ because Jeffers does not have a clear legal right to the requested

relief. During the pendency of this case, the Ohio General Assembly amended R.C.

5553.11 and, in so doing, specifically excepted vacations of roads from “sections 163.01

to 163.22 of the Revised Code.” R.C. 5553.11. This amendment was effective on April

7, 2009. This assignment of error asks us to construe the recent amendments to R.C.

5553.11. “‘When interpreting statutes and their application, an appellate court conducts

a de novo review, without deference to the trial court’s determination.’” Roberts v. Bolin,

Athens App. No. 09CA44, 2010-Ohio-3783, at ¶20, quoting State v. Sufronko (1995),

105 Ohio App.3d 504, 506.
Athens App. Nos. 10CA3 & 10CA15                                                     12


{¶31}    The Board contends that, “[i]n Van Fossen v. Babcock & Wilcox Co. (1988), 36

Ohio St.3d 100, 107-108 [superseded by statute on other grounds], the Ohio Supreme

Court addressed the application of amended statutes and found that where they are

remedial in nature and only affect the remedy of a party and not a substantive right they

are effective when amended[.]” Merit Brief of the Board at 13. But this is an inaccurate

statement of the law. The question of whether an amendment is remedial or

substantive goes to whether the retroactive application of a statute violates the Ohio

Constitution. “‘The general assembly shall have no power to pass retroactive laws.’

Section 28, Article II, Ohio Constitution. However, this prohibition of passing retroactive

laws applies to laws affecting substantive rights, not laws of a remedial or procedural

nature. Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, paragraph one of the syllabus.

‘Laws of a remedial nature providing rules of practice, courses of procedure, or methods

of review are applicable to any proceedings conducted after the adoption of such laws.’

Id. at paragraph two of the syllabus. ‘[S]ubstantive law is that which creates duties,

rights, and obligations, while procedural or remedial law prescribes methods of

enforcement of rights or obtaining redress.’ State ex rel. Holdridge v. Indus. Comm.

(1967), 11 Ohio St.2d 175, 178.” In re Estate of Pendleton, 141 Ohio App.3d 708, 711-

12, 2001-Ohio-2413.

{¶32}    Before we reach the question of whether a statute is remedial or substantive, a

court must first establish that the statute in question is in fact retroactive. Wagner v.

Anchor Packing Co., Lawrence App. No. 05CA47, 2006-Ohio-7097, at ¶13; see, also,

R.C. 1.48.
Athens App. Nos. 10CA3 & 10CA15                                                       13


{¶33}    Here, the statute reads: “If the proceeding is for an improvement other than the

vacation of a road and the board of county commissioners, at its final hearing on the

proposed improvement, orders the improvement established, it shall proceed in

accordance with sections 163.01 to 163.22 of the Revised Code.” R.C. 5553.11. The

amendment inserted the phrase “the proceeding is for an improvement other than the

vacation of a road and[.]” The amendment also deleted the phrase “, inclusive,” that

appeared immediately preceding “of the Revised Code.” See Sub.H.B. No. 318. There

is nothing in the language of the statute that expressly states that the amendment to the

statute should be applied retroactively. As such, we find the trial court correctly

determined that the amendments to R.C. 5553.11 only apply prospectively.

{¶34}    The Board also claims that the travels and travails of cases 04CI0282 and

04CI0324 and their transference from the common pleas court to the Board and back

several times somehow allows the application of the amended version of R.C. 5553.11.

The basis for this argument is somewhat unclear, but we construe the argument as an

argument that the present case has arisen after the legislative change. See State v.

Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, at ¶10 (a prospective statute only applies

“to cases which arise subsequent to its enactment”) (quotations omitted).

{¶35}    Admittedly, this argument might present a close question in regard to appeals

and remands from a court of common pleas to a county board of commissioners. But

the relevant case is the mandamus action. That action has been pending before the

trial court since May 17, 2006. Since Jeffers filed the mandamus action prior to the

effective date of the statute, there is no question but that the case “arose” prior to the

statute. And, we find that the trial court did not err in determining that the amendment to
Athens App. Nos. 10CA3 & 10CA15                                                     14


R.C. 5553.11 does not apply to the present case. Accordingly, we overrule the Board’s

second assignment of error.

                                         C. Ripeness

{¶36}       In its third through sixth assignments of error, the Board raises various other

arguments. The gist of these arguments is that Jeffers has suffered no damages from

the Board’s decision to vacate the roads. Generally, the Board argues that Jeffers

suffered no damages for the following reasons: (1) Jeffers could not have used the

roads as ingresses and egresses for his proposed subdivision development; (2) the

vacation of the roads does not prevent Jeffers from using them as private rights of way;

(3) Jeffers may not use the value of his proposed subdivision to prove the loss of value

of his property; and (4) the vacation of those roads did not land lock Jeffers’s property.

{¶37}       We find that none of these issues are ripe for review at present. For all we

know, the Board may prevail on these issues in the damages proceedings under

Chapter 163 of the Revised Code. As such, we defer consideration of these issues until

a lower court considers them in the first instance.

{¶38}       Accordingly, we overrule the Board’s third, fourth, fifth, and sixth assignments

of error.

                                              IV.

{¶39}       Having overruled Jeffers’s assignment of error and all of the Board’s

assignments of error, we affirm the judgment of the trial court.

                                                                   JUDGMENT AFFIRMED.
Athens App. Nos. 10CA3 & 10CA15                                                 15




Harsha, P.J., concurring:

{¶40}    I concur in judgment and opinion in case number 10CA15, which affirms the

issuance of a writ of mandamus ordering the county commissioners to institute

damages proceedings under Revised Code Chapter 163. Because that result renders

Jeffers’ appeal in case number 10CA3 moot, I concur in judgment only in that case.
Athens App. Nos. 10CA3 & 10CA15                                                 16


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and each of the appellants pay
the costs in each appeal 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 Athens
County Court of Common Pleas 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. Exceptions.

       Harsha, P.J.: Concurs in Judgment and Opinion with Opinion as to 10CA15;
                     Concurs in Judgment Only with Opinion as to 10CA3.
       McFarland, J.: Concurs in Judgment Only.


                                         For the Court


                                         BY:
                                               Roger L. Kline, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
