[Cite as Tate v. Natural Nails, 2019-Ohio-4062.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

TOMIKA TATE,                                       :

                 Plaintiff-Appellant,              :
                                                              No. 107983
                 v.                                :

NATURAL NAILS,                                     :

                 Defendant-Appellee.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: October 3, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-890148


                                             Appearances:

                 Burkes Law, L.L.C., and John F. Burke, III, for appellant.

                 Alan J. Rapoport, for appellee.


FRANK D. CELEBREZZE, JR., J.:

                Plaintiff-appellant, Tomika Tate (“appellant”), brings the instant appeal

challenging the trial court’s judgment granting an oral motion to dismiss made by

defendant-appellee, Natural Nails. Specifically, appellant argues that the trial court

erred in (1) determining that she was required to present medical expert testimony

to demonstrate proximate cause in her negligence action, and (2) granting the
motion to dismiss without hearing any evidence or empaneling a jury. After a

thorough review of the record and law, this court affirms.

                         I. Factual and Procedural History

              Natural Nails is a nail salon in Euclid, Ohio. In March 2015, appellant

received a manicure at Natural Nails. According to appellant, sometime after she

received the manicure, she developed an infection on her middle finger and middle

fingernail.   Appellant alleged that the infection resulted from Natural Nails’

negligence.

              Appellant originally filed her negligence complaint on May 16, 2016, in

Cuyahoga C.P. No. CV-16-863279. However, on December 7, 2016, appellant filed

a notice of voluntary dismissal, and the trial court dismissed the case without

prejudice on December 8, 2016.

              Appellant refiled her negligence complaint on December 7, 2017, in

Cuyahoga C.P. No. CV-17-890148. Therein, appellant alleged that she received a

manicure at Natural Nails’ salon “[o]n or about March 1, 8, or 17, 2015[.]” Appellant

further alleged that she sustained the following injuries and damages as a result of

Natural Nails’ negligence:

      5. As a direct and proximate cause of [Natural Nails’] acts and
      negligence, [appellant] sustained serious injuries, including but not
      limited to, mental and physical pain and suffering, aggravation,
      inconvenience, grief, restrictions on activities, and/or loss of
      enjoyment of life.

      6. As a direct and proximate result of [Natural Nails’] negligence,
      [appellant] has been damaged and required hospital and medical care
      and treatment and incurred expenses for same.
            On December 14, 2017, Natural Nails filed an answer. Natural Nails

filed a motion for summary judgment on January 3, 2018. On March 14, 2018, the

trial court denied Natural Nails’ motion for summary judgment.

             During a case management conference on March 27, 2018, the trial

court ordered appellant to submit her expert report on or before July 26, 2018;

Natural Nails’ expert report was due on or before September 26, 2018. On June 26,

2018, the trial court issued a judgment entry that provided, in relevant part,

“compliance with pre-trial order to be completed and filed one week prior to

[November 7, 2018] trial. * * * All expert reports[.]”

            On July 26, 2018, appellant filed a motion for an extension of time to

submit an expert report. The trial court granted appellant’s motion, and ordered

appellant to submit an expert report on or before August 24, 2018.

             On October 26, 2018, Natural Nails filed motions in limine seeking to

prohibit appellant from (1) calling medical expert witnesses at trial, and (2)

introducing additional medical bills at trial. The matter was called for trial on

November 13, 2018.

             At the beginning of the hearing, the trial court addressed the motions

in limine filed by Natural Nails. Regarding the first motion, appellant’s counsel

conceded that it would not be calling a medical expert witness to testify. Regarding

the second motion, the trial court ordered the parties to go through appellant’s

medical bills and redact any information that was not related to the infection at

issue.
              While the trial court was waiting for a jury to be empaneled, Natural

Nails orally moved to dismiss the case based on appellant’s representation that she

would not be presenting the testimony of a medical expert. Defense counsel argued

that without evidence or testimony from a medical expert, appellant would not be

able to establish proximate cause, and therefore, the causation issue should not be

submitted to the jury. In support of its position, Natural Nails cited the Ohio

Supreme Court’s holding in Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114

(1970).

             Appellant’s counsel opposed the motion to dismiss, arguing that there

was medical evidence, appellant’s medical records, that explain and document

appellant’s infection. Appellant’s counsel asserted that appellant would testify at

trial that the issues with her finger began after she received a manicure at Natural

Nails.

              The trial court granted Natural Nails’ motion to dismiss, over

appellant’s objection, concluding that Darnell mandated a dismissal of appellant’s

case. The trial court explained, “[t]he case will be dismissed. [The victim] had an

infection, I don’t think there is any dispute about that. However, there’s no medical

testimony to indicate that it was contracted at the time of her nail salon visit and so

I am going to grant the motion.” (Tr. 11.) The trial court further emphasized that

“there’s nothing in the medical records that say this infection was caused by a visit

to the nail salon.” (Tr. 12.) The trial court’s November 13, 2018 judgment entry
provides, in relevant part, “pursuant to this court’s ruling dismissing case this case

is dismissed with prejudice.”

              On December 13, 2018, appellant filed the instant appeal challenging

the trial court’s judgment. Appellant assigns one error for review:

      I. The [t]rial [c]ourt erred when it granted [Natural Nails’] [o]ral
      [m]otion to [d]ismiss without hearing any evidence, testimony or ever
      empaneling a jury.

                                II. Law and Analysis

              In her sole assignment of error, appellant argues that the trial court

erred in dismissing her negligence action.

              “Under Ohio law, a claim for negligence requires proof of ‘(1) the

existence of a legal duty, (2) the defendant’s breach of that duty, and (3) injury that

is the proximate cause of the defendant’s breach.’” Garofoli v. Whiskey Island

Partners Ltd., 2014-Ohio-5433, 25 N.E.3d 400, ¶ 18 (8th Dist.), quoting Wallace v.

Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22. Regarding

the proximate cause element, “[w]hether the plaintiff is required to provide medical

expert testimony regarding an injury depends on the causal connection between the

injury and disability.” Ogolo v. Greater Cleveland Regional Transit Auth., 8th Dist.

Cuyahoga No. 99675, 2013-Ohio-4921, ¶ 13. Expert testimony is generally required

when an issue involves a question of scientific inquiry that is not within the

knowledge of a layperson. Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St. 205,

101 N.E.2d 897 (1951).
               In this case, Natural Nails does not appear to dispute that appellant

contracted an infection.      As explained in further detail below, appellant was

diagnosed with the infection paronychia1 on March 8, 2015. The parties do dispute,

however, whether appellant received a manicure at Natural Nails before she was

diagnosed with the infection.

              Appellant alleged in her complaint that she received a manicure at

Natural Nails’ salon “[o]n or about March 1, 8, or 17, 2015,” after which she

contracted an infection. Appellant did not present any documentary evidence, such

as a receipt or an appointment confirmation, demonstrating that she received a

manicure at Natural Nails on or before March 8.

               Natural Nails, on the other hand, asserted that appellant received a

manicure at Natural Nails on March 17, 2015 — after she had been diagnosed with

an infection — and that she was not at the salon prior to that date. In support,

Natural Nails submitted two receipts, dated March 17, 2015, that appellant signed.2

               Even if we assume that appellant did, in fact, receive a manicure at

Natural Nails on or before March 8, appellant failed to present any evidence

whatsoever regarding Natural Nails’ breach of its duty and proximate causation.




       1 “Paronychia is an inflammation involving the folds of tissue surrounding the
nail.” Yowpp v. Apfel, N.D.Ohio No. 99 CV 7714, 1999 U.S. Dist. LEXIS 22914 (Nov. 19,
1999), fn. 5, citing Dorland’s Illustrated Medical Dictionary 1232 (27th Ed.1994).
       2 The first receipt, time stamped 3:19 p.m., was for $37.80; the second receipt, time

stamped 3:09 p.m., was for $57.84.
               As noted above, the trial court dismissed appellant’s negligence action

pursuant to Darnell, 23 Ohio St.2d 13, 261 N.E.2d 114. In Darnell, the Ohio

Supreme Court held,

       Except as to questions of cause and effect which are so apparent as to
       be matters of common knowledge, the issue of causal connection
       between an injury and a specific subsequent physical disability involves
       a scientific inquiry and must be established by the opinion of medical
       witnesses competent to express such opinion. In the absence of such
       medical opinion, it is error to refuse to withdraw that issue from the
       consideration of the jury.

Id. at syllabus.

               “The Darnell syllabus divides causation questions into two categories:

those that are within common knowledge and those that involve a scientific inquiry

not within the common knowledge of persons.” Dixon v. Miami Univ., 10th Dist.

Franklin No. 04AP-1132, 2005-Ohio-6499, ¶ 37.            “[T]he relevant distinction

regarding the character of the injury is whether it is readily observable or

understandable or the injury is ‘internal and elusive in nature, unaccompanied by

any observable external evidence.’” Chilson v. Conrad, 11th Dist. Portage No. 2005-

P-0044, 2006-Ohio-3423, ¶ 20, quoting Davis v. Morton Thiokol, Inc., 11th Dist.

Lake No. 90-L-15-083, 1991 Ohio App. LEXIS 5270, 6 (Nov. 1, 1991).

               In Wright v. Columbus, 10th Dist. Franklin No. 05AP-432, 2006-

Ohio-759, the Tenth District explained,

       “It is when the internal complexities of the body are at issue that we
       generally initiate the [metamorphosis] in the evidential progression
       where medical testimony moves from the pale of common knowledge
       matters and within layman competency where expert testimony is not
       required, to those areas where such testimony is more appropriate and
      indeed most necessary for the trier of fact to understand the nature and
      cause of the injuries alleged.”

Id. at ¶ 10, quoting Gibbs v. Gen. Motors Corp., 11th Dist. Trumbull No. 3625, 1987

Ohio App. LEXIS 6288, 4 (Mar. 27, 1987).

              In the instant matter, appellant appears to argue that the causal nexus

between the manicure, Natural Nails’ negligence, and her infection is so clear and a

matter of common knowledge, such that expert medical testimony was not

necessary.   Appellant contends that the causal connection between the finger

infection and the manicure “is within the common knowledge of the average

layman.” Appellant’s brief at 5. We disagree.

              As an initial matter, it appears from the record that appellant’s

counsel originally intended to call an expert witness at trial. As noted above,

appellant requested an extension of time to submit an expert report. Additionally,

in her final pretrial statement, filed on October 17, 2018, appellant listed, generally,

“[p]laintiff’s medical providers” in the “list of expert trial witnesses” section.

However, in her pretrial witness list, subsequently filed on October 31, 2018,

appellant indicated that her counsel would call appellant and a representative of

Natural Nails at trial. Appellant’s counsel ultimately conceded that appellant would

not be presenting any medical expert testimony at trial, based upon which Natural

Nails moved for a dismissal of the case.

              This court has recognized that in certain instances, the causal nexus

between an accident and a resulting injury is, in fact, so clear that expert medical
testimony is not absolutely necessary. Ogolo, 8th Dist. Cuyahoga No. 99675, 2013-

Ohio-4921, at ¶ 14. For instance, the causal relationship between physical impact

and a bruise or a fracture is a matter within common knowledge. See White Motor

Corp. v. Moore, 48 Ohio St.2d 156, 357 N.E.2d 1069 (1976) (medical testimony was

not required to establish causal relationship between employee’s bruised knee

caused by a truck frame falling and landing on the employee, as the injury involved

“little if any medical complexity”); Canterbury v. Skulina, 11th Dist. Portage No.

2000-P-0060, 2001 Ohio App. LEXIS 5442 (Dec. 7, 2001) (a broken ankle sustained

from a slip and fall is a sufficiently understandable, observable, and comprehensible

injury that does not require expert testimony because it is within the scope of

common knowledge); Kelley v. Connor, 5th Dist. Licking No. CA 2981, 1984 Ohio

App. LEXIS 9193 (Apr. 9, 1984) (severe strain sustained as a result of moving heavy

objects is a matter of common knowledge and therefore, expert testimony on the

issue of causation was not required); see also Bowling v. Industrial Comm., 145

Ohio St. 23, 29, 60 N.E.2d 479 (1945) (“[i]t is a matter of common knowledge that

any liquid heated to 880 degrees Fahrenheit and coming into contact with any part

of the human anatomy probably would cause injury. This is especially true when

such liquid comes in contact with the delicate membrane of the eye.”).

              In this case, we cannot say that the causal relationship between

Natural Nails’ breach of its duty and appellant’s infection is so clear or a matter

within common knowledge. “The existence and cause of a bacterial infection are

not matters of common knowledge and must be demonstrated with expert medical
testimony.” (Emphasis added.) Prysock v. Bahner, 10th Dist. Franklin No. 03-AP-

1245, 2004-Ohio-3381, ¶ 9; see also Marzocco v. Taco Bell Corp., 2d Dist.

Montgomery No. 17818, 2000 Ohio App. LEXIS 62 (Jan. 14, 2000) (expert medical

testimony is required to demonstrate the cause of foodborne illnesses). Unlike

bruises or bone fractures, there are many different types of bacterial agents that can

cause an infection, and it is possible to contract an infection in a number of different

ways. Accordingly, the question of the causal connection between the manicure and

appellant’s infection is within the scope of expert scientific inquiry.

              Regarding the element of Natural Nails’ breach of its duty, appellant

generally alleges in her complaint that Natural Nails was negligent. She does not,

however, allege or specify how Natural Nails was negligent (i.e. failing to properly

clean or sanitize manicure tubs, failing to properly clean or sanitize manicure

instruments, etc.). Like the question of proximate cause, proper salon sanitation

techniques are not within the common knowledge of a layperson.

              In this case, the finder of fact would be charged with determining

(1) whether Natural Nails failed to properly clean, sanitize, and disinfect its tools,

instruments, and tubs, or properly perform appellant’s manicure, and (2) whether

Natural Nails’ failure to do so caused appellant’s infection. To accomplish these

tasks, the factfinder would need to understand the means and methods of cleaning

and sanitizing manicure tubs and instruments and the potential risks, such as

exposure to bacteria and development of infection, that customers faced if the

cleaning procedures were not followed. These matters are outside of the common
and ordinary experience and knowledge of a layperson. As a result, expert testimony

was required.3

               Appellant appears to argue that expert medical testimony was not

necessary because the infection “was external not internal and was documented in

photographs and medical records.” Appellant’s brief at 8.

               Initially, unlike a bruise or a bone fracture, every infection is not

necessarily visible. Nevertheless, in this case, we cannot say that the infection or the

damage to appellant’s finger and fingernail is readily observable in the photographs.

One of the photographs shows a small chip in the nail on appellant’s left middle

finger.   Plaintiff’s exhibit No. 14.      While some photographs show a slight

discoloration in the fingernail of appellant’s left middle finger, a discoloration can

also be observed in other nails, both on appellant’s left and right hands. See

plaintiff’s exhibits Nos. 8, 13, and 14.

              This case is analogous to Harris v. Ohio Dept. of Rehab. & Corr., 10th

Dist. Franklin No. 13AP-466, 2013-Ohio-5714. In Harris, the plaintiff-appellant, an

inmate, brought a negligence action against a correctional facility after receiving a

haircut at the facility’s barbershop, after which his scalp became tender and he was

ultimately diagnosed with the staph infection MRSA. Id. at ¶ 2. The inmate alleged


      3  See, e.g., Detraz v. Lee, 900 So.2d 1099 (La.App.2005) (plaintiff in a negligence
action involving an infection contracted during a pedicure at a nail salon presented
medical testimony from (1) a licensed plastic surgeon who treated the plaintiff and opined
that the unsanitized pedicure tub was the cause of her infection, (2) a dermatologist who
treated her and opined that it was possible for a customer to contract an infection from
an improperly sanitized pedicure tub, and (3) a licensed cosmetologist who testified that
improperly cleaning pedicure tubs can generate potentially dangerous bacteria).
that the facility was negligent in maintaining sanitary conditions in the barber

facility and that this negligence proximately caused his injury. The court of claims

granted the correctional facility’s motion for summary judgment. On appeal, the

Tenth District acknowledged that in opposing the correctional facility’s motion for

summary judgment, the inmate did not present any expert evidence that his injury

was proximately caused by the haircut he received at the barbershop. Id. at ¶ 14.

The court affirmed the judgment of the court of claims, concluding:

      The mechanisms for contracting MRSA are not within the knowledge
      of a layperson. Proper sanitation techniques in a barbershop are not
      within the knowledge of a layperson. As previously noted, appellant
      failed to submit any expert testimony on the issues of breach or
      proximate causation. Appellant’s theory of liability is premised solely
      on speculation and conjecture. Appellant submitted no evidence
      regarding how MRSA is transmitted; whether the chemicals used in the
      barbershop kill the MRSA bacteria; whether it is possible to contract
      MRSA in the manner appellant alleges; how long it takes for the MRSA
      infection to manifest itself after exposure; and whether the absence of
      hot water has any bearing on the transmission of MRSA. Even if we
      assume that appellant created an issue of fact regarding appellee’s
      breach of a duty due to the absence of hot water, appellant points to
      nothing beyond conjecture and speculation to establish proximate
      causation. The documents appellant has submitted do not address the
      issue of proximate cause. Given the [unrefuted] evidence presented by
      appellee in support of its motion for summary judgment, we conclude
      that a reasonable fact finder could only conclude that appellant has
      failed to create a material issue of fact on an essential element of his
      negligence claim. Therefore, we agree with the trial court that appellee
      is entitled to summary judgment.

(Emphasis added.) Id. at ¶ 17.

              Here, like Harris, neither the mechanisms for contracting paronychia

nor proper salon sanitation techniques are within the knowledge of a layperson.

Like Harris, appellant conceded that she would not be presenting expert testimony
— either on the issue of breach of duty (i.e. improper sanitation or disinfecting

techniques) or the issue of proximate cause (i.e. Natural Nails’ negligence caused

her infection). Like Harris, appellant’s theory of liability was premised entirely on

speculation and conjecture. Like Harris, the medical records appellant submitted

do not address the issue of proximate causation. “It is well-established that when

only speculation and conjecture is presented to establish proximate causation, the

negligence claim has failed as a matter of law.” Harris at ¶ 15, citing Mills v. Best W.

Springdale, 10th Dist. Franklin No. 08AP-1022, 2009-Ohio-2901, ¶ 20.

              To the extent that appellant argues that her medical records

specifically and directly indicate that her finger infection resulted from her visit to

the nail salon, we find no merit to this argument.

              The medical records from Euclid Hospital’s emergency department,

where appellant was treated on March 8, 2015, provide, in relevant part, “[patient]

presents to ED for pain left middle finger, [patient states] pain began shortly after

she had her nails manicured.” These records also confirm that appellant was

diagnosed with paronychia.        Appellant’s discharge instructions explain what

paronychia is and how to treat it. The medical records do not, however, state

anything about how the infection is or was caused.

              The medical records from appellant’s primary care doctor at New

Family Physicians Associates, where appellant was treated on March 12, 2015,

provide, in relevant part, “[p]atient is here for a follow up an infection on her left

middle fingernail. She went to the Euclid emergency room a week ago. They gave
her antibiotic * * * She recalls going to get a manicure before the infection started.”

The assessment and plan specified in these records is “Paronychia of third finger of

left hand[.]” These records also do not contain any information regarding the cause

of appellant’s infection.

              Accordingly, the references to the manicure in the medical records are

based on the account appellant provided to the medical staff, not the independent

observations or diagnoses of third-party, detached medical personnel. Based on the

foregoing analysis, we find that appellant’s negligence claim and the requisite

proximate cause element were based on speculation and conjecture. Accordingly,

appellant’s negligence claim fails as a matter of law, and the trial court properly

granted Natural Nails’ motion to dismiss the case.

              Finally, appellant argues that the trial court’s dismissal was “clear

error in complete contravention of the Ohio Rules of Civil Procedure.” Appellant’s

reply brief at 2. During oral arguments, appellant’s counsel argued that the trial

court committed a procedural error by dismissing the case, on the day of trial, before

appellant had an opportunity to present any evidence to the jury.           Appellant

emphasized that despite the fact that a jury trial was scheduled to commence that

day, the trial court dismissed the case before the jury had even been selected.

Finally, appellant contends that the trial court dismissed the case without any

citation to or support of the Rules of Civil Procedure.

               We note that the proceedings below and the manner in which the case

was dismissed are procedurally irregular. As noted above, the record reflects that
appellant’s counsel conceded that appellant would not be calling an expert medical

witness to testify at trial. Appellant’s counsel’s concession rendered Natural Nails’

motion in limine moot. Furthermore, based on the concession, defense counsel

orally moved to dismiss the case, pursuant to Darnell, based on “the lack of medical

expert testimony concerning [appellant’s] injury.” (Tr. 7.)

              Thereafter, the trial court entertained arguments from both parties on

Natural Nails’ oral motion to dismiss the case. Furthermore, defense counsel

provided the trial court with a copy of the Darnell decision. Based on the arguments

presented and the Darnell decision, the trial court granted Natural Nails’ oral

motion to dismiss.

               Defense counsel’s oral motion to dismiss may have been more

appropriate as a motion for a directed verdict, pursuant to Civ.R. 50, following

appellant’s opening statement at trial. Furthermore, had appellant conceded during

the exchange of discovery — rather than on the day of trial — that no expert medical

testimony would be presented at trial, it may have been more appropriate to dismiss

the case pursuant to Civ.R. 56 and Natural Nails’ motion for summary judgment. In

the motion for summary judgment, filed on October 6, 2018, Natural Nails argued

that appellant’s “failure to offer required medical evidence means it now is

impossible for [her] to establish at trial that alleged negligence at a nail salon could

have caused claimed injury to her finger.” Furthermore, although Natural Nails

conceded that appellant’s evidence indicated that she did, in fact, sustain an

infection on her finger for which she received medical treatment, Natural Nails
argued that “the mere presence in [appellant’s] finger of an infection and any

coincidental visit by [appellant] to [Natural Nails’] salon do not combine to prove

causation in the absence of medical expert testimony.”          Although these were

essentially the same arguments based upon which Natural Nails orally moved to

dismiss the case on the day of trial, the trial court denied Natural Nails’ motion for

summary judgment.

              Notwithstanding the procedural irregularity of the trial court’s

proceedings and the manner in which the case was ultimately dismissed, we cannot

conclude that the trial court erred in granting Natural Nails’ oral motion to dismiss

and dismissing the case.

              For all of these reasons, we find that the trial court did not err in

granting Natural Nails’ motion to dismiss. Appellant’s sole assignment of error is

overruled.

              We emphasize that our holding is limited to and based upon the

allegations in appellant’s complaint, the facts of this case, and the evidence in the

record before this court. This case does not stand for the proposition that a plaintiff

must always present expert medical testimony in order to maintain a negligence

action of this type or of a similar nature. As noted above, this court has recognized

that when the causal connection between an accident and a resulting injury is so

clear and obvious, and a matter within common knowledge, expert medical

testimony is not absolutely necessary in order to maintain the negligence action. See

Ogolo, 8th Dist. Cuyahoga No. 99675, 2013-Ohio-4921, at ¶ 14. Furthermore,
contrary to appellant’s assertion that the causal connection between a finger

infection and a manicure “is within the common knowledge of the average layman,”

we cannot conclude that the existence and cause of bacterial infections are always

matters of common knowledge that need not be supported by expert medical

testimony. See Prysock, 10th Dist. Franklin No. 03-AP-1245, 2004-Ohio-3381, at ¶

9.

              After reviewing the record, we must conclude that appellant’s

negligence claim fails as a matter of law based on (1) appellant’s failure to present

any evidence indicating that she did, in fact, receive a manicure at Natural Nails on

or before March 8, 2015, when she was diagnosed with the infection, and (2)

appellant’s failure to specifically allege or present evidence indicating how Natural

Nails was negligent. Appellant’s general, unspecified assertion that her infection

resulted from Natural Nails’ negligence — without more — was insufficient to

maintain and proceed with her negligence action.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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.


______________________________
FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
RAYMOND C. HEADEN, J., CONCUR
