[Cite as Lyle v. PK Mgt., L.L.C., 2010-Ohio-2161.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




EVELYN LYLE,

        PLAINTIFF-APPELLANT,                             CASE NO. 5-09-38

        v.

PK MANAGEMENT, LLC., ET AL.,                             OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 09-CV-126

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: May 17, 2010




APPEARANCES:

        William E. Clark for Appellant

        Russell W. Porritt, II for Appellees
Case No. 5-09-38


ROGERS, J.

      {¶1} Plaintiff-Appellant, Evelyn Lyle, appeals the judgment of the Court

of Common Pleas of Hancock County granting summary judgment in favor of

Defendants-Appellees, PK Management, LLC, and KB Portfolio, LLC (jointly

referred to as “Appellees”). On appeal, Lyle argues that the trial court erred by

not adhering to the appropriate standard of review for summary judgment motions;

by granting summary judgment in favor of Appellees on the issue of proximate

cause; by failing to find common law negligence on behalf of Appellees; and, by

failing to address her viable claim for statutory negligence under the Landlord-

Tenant Act. Based upon the following, we reverse the judgment of the trial court

granting summary judgment to Appellees on Lyle’s statutory negligence claim,

but affirm the judgment of the trial court granting summary judgment to Appellees

on Lyle’s common law negligence claim.

      {¶2} In June 2008, Lyle was a tenant at Findlay Senior Towers in Findlay,

Ohio, which was owned by KB Portfolio, LLC, and managed by PK Management,

LLC, when she tripped in a hallway, fell, and was injured.

      {¶3} In February 2009, Lyle filed a complaint against Appellees, alleging

that they negligently and in violation of the Landlord-Tenant Act failed to

maintain the common areas of Senior Towers, and that Appellees’ negligence




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caused her to fall and sustain serious and permanent personal injuries, to incur

medical expenses, and to suffer extreme pain.

       {¶4} In March 2009, Appellees answered, denying Lyle’s allegations and

asserting as affirmative defenses, in part, that there was no proximate cause

existing between its acts or omissions and Lyle’s injuries and damages; that Lyle’s

injuries and damages were caused in whole or in part by her own negligence

and/or contributory/comparative negligence; that they were never notified about a

defect on the premises where the injury allegedly occurred; that the condition of

the premises was open and obvious; and, that Lyle had traversed the area

previously and was aware of the condition of the premises.

       {¶5} In July 2009, Lyle was deposed and stated that she lived at Senior

Towers in Findlay, a dependent-living facility, from 2003 until mid-2008; that, in

mid-2008, she fell in a hallway located off the lobby of Senior Towers; that the

lobby and hallway floor were tiled; that, in one area of the hallway, near the

mailroom, some tiles were missing; that there was a resulting “big hole in the

floor” (Lyle dep., p. 21); that she had been aware of the hole’s presence for almost

two years; that she did not remember how big the hole was, but that it was at least

one foot in diameter; that “they had a little table like moved over the hole and

another deal on it” (id. at p. 22); that the table covered part of the hole; that she did

not know how deep the hole was, but that it was deeper than the height of a tile;



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that “the old tile had raised up” (id. at p. 23); that she did not know if there was an

orange pylon, or cone, in the vicinity of the hole; that, on the day she fell, she had

purchased groceries, returned to Senior Towers, and pushed her cart with her

groceries into the hall where she stopped it near the table by the mail room; that

she left her cart, walked past the hole and mailroom, and went down the hall to the

secretary’s office; that she recalled looking at the hole on the day of the fall; that

she then returned to her cart and decided to check her mailbox; that she turned or

“flipped” around and immediately fell and hit her head on the mailbox (id. at p.

43); that she did not take any steps before falling; that she was not standing in the

hole when she turned around; that she “got [her] foot caught somehow or other

and in the tile or whatever it was,” did not “know what the heck was there,” and

“got [her] foot caught in this and [she] went down” (id. at p. 45); that, when asked

“how do you know that you fell in the hole or tripped on the hole?”, responded

“how else would I fall?”; that “I fell over the hole. I know I fell over the hole

from where I was at. I know that” (id. at p. 46); that she fell forward with her

arms folded across her chest; that she did not remember hitting her head on the

mailbox, but that she “hit before [she] hit the floor” (id. at p. 49); that she lost

consciousness on the floor; that she was transported by ambulance to Blanchard

Valley Hospital and learned she had suffered a broken hip as a result of the fall;

that she had to learn how to walk again and required a walker after the fall; that



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her doctors told her she could no longer drive due to her injuries; and, that she

suffered from back pain and has had difficulty holding a pencil and writing since

the fall.

        {¶6} In August 2009, Appellees filed a motion for summary judgment

arguing that, in light of the evidence, Lyle’s common law negligence claim was

barred by the open and obvious doctrine; that, alternatively, Lyle’s knowledge of

the condition of the premises on the day of her fall was superior or at least equal to

that of Appellees; and, that Lyle was unable to demonstrate proximate cause

between the failure to maintain the floor and her fall.

        {¶7} In November 2009, the trial court granted Appellees’ motion for

summary judgment finding that “(1) on a common law theory of negligence, the

condition that the plaintiff claims caused the injury was open and obvious; and (2)

on any theory of negligence, the plaintiff has failed to produce any evidence of

proximate cause.” (Nov. 2009 Decision and Judgment Entry, p. 5). In a very

thorough judgment entry, the trial court reasoned that Lyle’s claim under common

law negligence was barred because her deposition demonstrated that she had seen

the hole many times over a two-year period, including on the day of the injury;

that the hole was both observable due to its appearance and actually observed by

Lyle; that there was no evidence of any attendant circumstances that made the hole

less visible; and, that, consequently, reasonable minds could only conclude that the



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condition was open and obvious and liability was precluded on that basis.

Additionally, the trial court reasoned that Lyle had also failed to demonstrate any

genuine issue of fact as to negligence per se under the Landlord-Tenant Act

because she had not set forth any evidence to establish proximate cause. Instead,

the trial court found that Lyle’s deposition indicated that she did not know how

she fell, based on her statements that she was not standing in the hole when she

fell, she did not step into the hole, and she took no steps toward the hole.

Consequently, the trial court concluded that Lyle’s conclusion that she fell due to

the hole was merely “guesswork” and insufficient to show proximate cause. (Nov.

2009 Decision and Judgment Entry, p. 10).

      {¶8} It is from this judgment that Lyle appeals, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       PLAINTIFF-APPELLANT BY NOT ADHERING TO THE
       STANDARD OF REVIEW IN CONTEMPLATION OF A
       MOTION FOR SUMMARY JUDGMENT.

                           Assignment of Error No. II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       PLAINTIFF-APPELLANT BY GRANTING SUMMARY
       JUDGMENT IN FAVOR OF DEFENDANTS ON THE ISSUE
       OF PROXIMATE CAUSE.




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                            Assignment of Error No. III

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       PLAINTIFF-APPELLANT BY FAILING TO FIND COMMON
       LAW NEGLIGENCE ON BEHALF OF DEFENDANTS.

                            Assignment of Error No. IV

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       PLAINTIFF-APPELLANT BY FAILING TO ADDRESS
       PLAINTIFF-APPELLANT’S VIABLE   CLAIM  FOR
       NEGLIGENCE PER SE.

       {¶9} Due to the nature of Lyle’s arguments, we elect to address her

assignments of error in a different order than presented in her brief, and to address

her first and second assignments of error together, preceded by a brief discussion

of common law and statutory negligence.

                      Common Law and Statutory Negligence

       {¶10} Plaintiff-tenants seeking to establish negligence claims against

defendant-landlords may do so under (1) common law premises liability, or (2)

R.C. 5321 et seq., commonly referred to as the Landlord-Tenant Act. Mounts v.

Ravotti, 7th Dist. No. 07 MA 182, 2008-Ohio-5045, ¶¶15-17.

       {¶11} The elements of a negligence action between private parties are (1)

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

“‘resulting proximately therefrom.’” Howard v. Chattahoochie’s Bar, 175 Ohio

App.3d 578, 2008-Ohio-742, ¶13, quoting Nationwide Mut. Ins. Co. v. Am.

Heritage Homes Corp., 167 Ohio App.3d 99, 2006-Ohio-2789, ¶12.


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       {¶12} Additionally, the Landlord-Tenant Act governs the obligations of

landlords, providing, in pertinent part:

       (A) A landlord who is a party to a rental agreement shall do all
       of the following:

       (1) Comply with the requirements of all applicable building,
       housing, health, and safety codes that materially affect health
       and safety;

       (2) Make all repairs and do whatever is reasonably necessary
       to put and keep the premises in a fit and habitable condition;

       (3) Keep all common areas of the premises in a safe and
       sanitary condition[.]

R.C. 5321.04. The Supreme Court of Ohio has held that “a landlord’s violation of

the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence

per se.” Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶23, citing

Sikora v. Wenzel, 88 Ohio St.3d 493, 2000-Ohio-406.

                             Assignment of Error No. IV

       {¶13} In her fourth assignment of error, Lyle argues that the trial court

failed to appropriately address her statutory negligence claim pursuant to R.C.

5321.04, which required Appellees to keep the common areas of Findlay Senior

Towers in a safe and sanitary condition. Specifically, Lyle argues that the trial

court mistakenly relied on the open and obvious doctrine, applicable to common

law negligence claims, to dismiss her statutory negligence claim. We disagree that




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the trial court relied on the open and obvious doctrine to dispose of her statutory

negligence claim.

      {¶14} The Supreme Court of Ohio held in Robinson that “[t]he ‘open and

obvious’ doctrine does not dissolve the statutory duty to repair[.]” 2006-Ohio-

6362, at ¶25; see, also, Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-

Ohio-2495, ¶15. Additionally, even where negligence per se can be demonstrated,

a plaintiff must still show that the landlord’s negligence proximately caused her

injuries. Smalley v. Pauly, 6th Dist. No. L-04-1106, 2004-Ohio-6885, ¶10, citing

Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 25.

      {¶15} Here, the trial court stated in its judgment entry that, “(1) on a

common law theory of negligence, the condition that the plaintiff claims caused

the injury was open and obvious; and (2) on any theory of negligence, the plaintiff

has failed to produce any evidence of proximate cause.” (Nov. 2009 Decision and

Judgment Entry, p. 5). We find that the trial court’s statement that, on “any theory

of negligence, the plaintiff has failed to produce any evidence of proximate

cause” demonstrates that the trial court properly considered Lyle’s statutory

negligence claim, and found that she had failed to produce any evidence of

proximate cause in support of her statutory claim as required. See Shroades, 68

Ohio St.2d at 25.    Additionally, the trial court specifically stated that it was

applying the open and obvious doctrine to Lyle’s common law theory of



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negligence, and we do not find it apparent that the trial court also applied this

doctrine to her statutory negligence claim.

        {¶16} Accordingly, we overrule Lyle’s fourth assignment of error.

                         Assignments of Error Nos. I and II

        {¶17} In her first assignment of error, Lyle argues that the trial court erred

by failing to use the appropriate standard of review in granting Appellees’ motion

for summary judgment. Specifically, Lyle contends that the trial court should

have permitted the jury to decide the question of what caused her to fall, as this

was a genuine issue of material fact in light of her deposition. Instead, Lyle

suggests, the trial court improperly determined the credibility of the evidence in

contravention of the requirements of Civ.R. 56(C). In her second assignment of

error, Lyle argues that the trial court erred by granting summary judgment in favor

of Appellees on the issue of proximate cause. Specifically, Lyle contends that the

facts demonstrated that, but for the defective tiling and resulting hole in the floor,

she would not have fallen, and, thus, but for Appellees’ failure to maintain the

premises, she would not have been injured; that her injury was foreseeable; and,

that proximate cause was an issue of fact that should have been submitted to the

jury.

        {¶18} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.



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Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law.      Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party.            Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.

      {¶19} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support its argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the




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existence of a genuine triable issue; she may not rest on the mere allegations or

denials of her pleadings. Id.; Civ.R. 56(E).

        {¶20} Here, Appellees’ motion for summary judgment offered evidence

demonstrating that Lyle was unable to demonstrate the proximate cause of her fall.

Lyle counters that statements in her deposition gave rise to a genuine issue of

material fact as to whether the Appellees’ negligence proximately caused her to

fall.

        {¶21} Courts have held that a plaintiff-tenant did not produce evidence of

proximate cause sufficient to overcome the defendant-landlord’s motion for

summary judgment in the following situations:

        {¶22} In Smalley, supra, a plaintiff-tenant sued her defendant-landlord on a

negligence per se theory after she fell on stairs leading to her apartment. The trial

court granted summary judgment in favor of the landlord finding that the tenant’s

deposition demonstrated that she could not identify the cause of her fall because

she had stated that “she did not know what caused her to lose her balance and fall”

and that she may have fallen because her knee “gave out” and she lost her balance.

The Sixth Appellate District affirmed, finding that, based on the deposition,

determination of proximate cause would require conjecture and speculation on part

of the jury, which the Supreme Court of Ohio cautioned against in Renfroe v.

Ashley (1958), 167 Ohio St. 472.



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       {¶23} In Mahmoud v. Dennis, 6th Dist. No. L-04-1183, 2005-Ohio-3610, a

plaintiff-guest sued the defendant-landlord after falling at her son’s apartment.

The plaintiff stated in her deposition that she had stepped in water in her son’s

basement, and then attempted to turn around and fell to the floor. She stated that

she had no memory of what happened after the fall and could not remember

anything else. The trial court granted summary judgment in the landlord’s favor,

and the Sixth Appellate District affirmed, finding that the plaintiff’s evidence as to

proximate cause was “so meager and inconclusive as to amount to speculation and

conjecture[.]” 2005-Ohio-3610, at appendix, citing Renfroe, 167 Ohio St. 472, at

syllabus.

       {¶24} In contrast, this Court recently found in Wood v. Crestwood Assoc.,

LLC, 3d Dist. No. 1-09-37, 2010-Ohio-1253, that a plaintiff demonstrated

evidence of proximate cause sufficient to overcome the defendant’s motion for

summary judgment where, although several of the plaintiff’s deposition statements

read in isolation appeared speculative, the deposition testimony as a whole

demonstrated that proximate causation was not speculative, particularly when

viewed in a light most favorable to the plaintiff as the nonmoving party according

to Civ.R. 56(C). 2010-Ohio-1253, at ¶19. In Wood, the plaintiff stated in his

deposition that he did not know at first what caused him to crash and fall from his

bicycle, but then observed a groove in the road in the area where he fell and stated



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that he thought the groove caused the crash, and then stated that the groove was

the cause of the crash. Id. This Court noted that, like the trial court, the cold

deposition transcript could not enable us to discern whether the plaintiff’s

statements were definitive or equivocal via observation of his voice inflections or

facial gestures. Accordingly, this Court reasoned that, as Civ.R. 56(C) requires

deposition testimony to be viewed in a light most favorable to the plaintiff as the

nonmoving party, we could not conclude as a matter of law that his testimony

concerning proximate cause was speculative. Additionally, this Court emphasized

that, in determining whether a plaintiff has demonstrated the proximate cause of

his or her injuries, a court should examine the deposition testimony as a whole,

and not view any statement in isolation.

      {¶25} We find the deposition testimony in the case sub judice more

analogous to Wood than Smalley or Mahmoud, supra. Here, as in Wood, certain

statements Lyle made in her deposition appear to speculate as to the cause of her

fall. For example, Lyle stated that she turned around and immediately fell, but

that she was not standing in the hole when she turned around, did not take any

steps before falling, and did not step into the hole. Additionally, when asked how

she knew that she fell in the hole or tripped on the hole, Lyle responded “how else

would I fall?” When viewed in isolation, these statements would support the trial

court’s conclusion that Lyle’s evidence of proximate cause was “guesswork” and



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insufficient to defeat Appellees’ motion for summary judgment. However, as

emphasized in Wood, a court should not view statements in isolation, but should

consider the deposition transcript as a whole. Here, Lyle went on to state in her

deposition that she “got [her] foot caught somehow or other and [sic] in the tile or

whatever it was,” did not “know what the heck was there,” and “got [her] foot

caught in this and [she] went down” (Lyle dep. at p. 45). Further, Lyle stated that

“I fell over the hole. I know I fell over the hole from where I was at. I know that”

(id. at p. 46). Despite her prior speculative statements, we find that these latter

statements do not allow us to conclude as a matter of law that her testimony as a

whole was speculative as to proximate cause. This is particularly so given the

requirement of Civ.R. 56(C) that we view the evidence in a light most favorable to

Lyle as the nonmoving party. Therefore, we find that the trial court erred in

granting Appellees’ motion for summary judgment on Lyle’s claims of negligence

per se under the Landlord-Tenant Act because she had not set forth any evidence

to establish proximate cause.

         {¶26} Accordingly, we sustain Lyle’s first and second assignments of

error.

                              Assignment of Error No. III

         {¶27} In her third assignment of error, Lyle argues that the trial court erred

by failing to find common law negligence on behalf of Appellees. Specifically,



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she argues that the hazard was not open and obvious because the hole was partially

covered by a cart and not easily discernable by the naked eye, and because the

rippling effect in the tile was not discernible at first glance.

       {¶28} A common law negligence claim may be barred by the open and

obvious doctrine, because “[w]here a danger is open and obvious, a landowner

owes no duty of care to individuals lawfully on the premises.” Armstrong v. Best

Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶14; see, also, Lang, 122 Ohio

St.3d 120, at ¶11 (holding that “when a plaintiff is injured by an open and obvious

danger, summary judgment is generally appropriate because the duty of care

necessary to establish negligence does not exist as a matter of law”). A hazard is

open and obvious when it is in plain view and readily discoverable upon ordinary

inspection. Mohn v. Wal-Mart Stores, Inc., 3d Dist. No. 6-08-12, 2008-Ohio-

6184, ¶14, citing Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 51. Further,

a “‘plaintiff’s failure to avoid a known peril is not excused by the fact that he ‘did

not think,’ or ‘forgot’.’” Sneary v. McDonald’s Restaurant No. 3830, 3d Dist. No.

1-2000-13, 2000-Ohio-1885, quoting Raflo v. Losantiville Country Club (1973),

34 Ohio St.2d 1, 3. The presence of attendant circumstances, however, may create

a genuine issue of fact as to whether a danger is open and obvious. Frano v. Red

Robin Internatl., 181 Ohio App.3d 13, 2009-Ohio-685, ¶22.              An attendant

circumstance is:



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       “‘a factor that contributes to the fall and is beyond the control
       of the injured party. * * * The phrase refers to all facts relating
       to the event, such as time, place, surroundings or background
       and the conditions normally existing that would unreasonably
       increase the normal risk of a harmful result of the event. * * *
       However, ‘[b]oth circumstances contributing to and those
       reducing the risk of the defect must be considered.’ ’ ”

Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶18,

quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No. 02AP-

1211, 2003-Ohio-2890, ¶17, quoting Sack v. Skyline Chili, Inc., 12th Dist. No. CA

2002-09-101, 2003-Ohio-2226, ¶20, citing Burstion v. Chong-Hadaway, Inc., 10th

Dist. No. 99AP-701, 2000 WL 234323.

       {¶29} Here, nothing in the record supports Lyle’s argument that the alleged

partial covering of the hole by a cart or table was a factor contributing to her fall

and resulting injuries. Lyle stated in her deposition that she had been aware of the

hole’s presence for almost two years and had, in fact, walked past and observed

the hole just minutes before her fall. Additionally, Lyle did not assert that the cart

or table obstructed her view of the hole or distracted her in such a way that it

prevented her from observing the hole. See Frano, 181 Ohio App.3d 13, at ¶¶39-

61. See, also, Miller v. First Internatl. Fid. & Trust Bldg., 6th Dist. No. L-08-

1187, 2009-Ohio-6677, ¶¶71-72. Consequently, we do not find that the trial court

erred by finding that the danger was open and obvious and granting summary

judgment to Appellees on Lyle’s common law negligence claim.



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       {¶30} Accordingly, we overrule Lyle’s third assignment of error.

       {¶31} Having found error prejudicial to the appellant herein, in the

particulars assigned and argued in the first and second assignments of error, but

having found no error in the particulars assigned and argued in the third and fourth

assignments of error, we reverse the judgment of the trial court granting summary

judgment to Appellees on Lyle’s claim under statutory negligence, but affirm the

judgment of the trial court granting summary judgment to Appellees on Lyle’s

claim under common law negligence.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                               Cause Remanded

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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