[Cite as Sutter v. Henkle, 2016-Ohio-1143.]




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




LANA SUTTER,

        PLAINTIFF-APPELLEE,                               CASE NO. 10-15-14

        v.

STACEY HENKLE,                                            OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Celina Municipal Court
                             Trial Court No. 15CVI00410

                                      Judgment Affirmed

                            Date of Decision: March 21, 2016




APPEARANCES:

        Shaun A. Putman for Appellant

        Lana Sutter, Appellee
Case No. 10-15-14


PRESTON, J.

          {¶1} Defendant-appellant, Stacey Henkle (“Henkle”), appeals the August

19, 2015 judgment of the Celina Municipal Court, Small Claims Division

awarding plaintiff-appellee, Lana Sutter (“Sutter”), $1,356.50 in damages. We

affirm.

          {¶2} On April 4, 2014, Sutter entered into a contract with Henkle

Construction, LLC for a “mother in law suite” addition to Sutter’s home located in

Mercer County, Ohio.        (Doc. No. 1, Ex. C). This case stems from Sutter’s

allegation that she entered into an oral agreement with Henkle during the

construction of the mother-in-law suite. Sutter alleges that Henkle orally agreed to

pay half of the cost of concrete steps leading to the rear-patio door of the addition.

Steps were not specifically mentioned in the written contract for the addition.

          {¶3} On June 3, 2015, Sutter, pro se, filed a small-claims complaint in the

Celina Municipal Court asking for a judgment in the amount of $1,296.50, plus the

$60.00 filing fee, for a total of $1,356.50 against Henkle. (Doc. No. 1). On June

12, 2015, Henkle filed his answer. (Doc. No. 5). That same day, Henkle filed

motions for a more definitive statement and for reasonable attorney fees in defense

of frivolous conduct. (Doc. Nos. 6, 7). On June 15, 2015, the trial court granted

Henkle’s motion for a more definitive statement and ordered Sutter to file an




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amended complaint. (Doc. No. 9). Sutter filed her amended complaint on June

26, 2015. (Doc. No. 11).

       {¶4} The trial court held a small-claims trial on August 13, 2015. (Aug. 13,

2015 Tr. at 1). At trial, the court concluded that Henkle’s motion for attorney fees

was premature. (Aug. 13, 2015 Tr. at 104). On August 19, 2015, the trial court

awarded Sutter $1,356.50 in damages. (Doc. No. 12).

       {¶5} On September 18, 2015, Henkle filed his notice of appeal. (Doc. No.

13).   He raises three assignments of error for our review.       For ease of our

discussion, we will address them together.

                           Assignment of Error No. I

       The Trial Court’s Determination that the Alleged Contract is
       Supported by Consideration was Contrary to Law and Against
       the Manifest Weight of the Evidence.

                           Assignment of Error No. II

       The Trial Court’s Determination that There was a “Meeting of
       the Minds” to Support the Alleged Contract was Contrary to
       Law and Against the Manifest Weight of the Evidence.

                           Assignment of Error No. III

       The Trial Court’s Determination that Defendant Stacey Henkle
       Personally Entered Into a Contract with the Plaintiff was
       Contrary to Law and Against the Manifest Weight of the
       Evidence.

       {¶6} In his first and second assignments of error, Henkle argues that the

trial court’s conclusion that there was a valid and enforceable contract between

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Henkle and Sutter is against the manifest weight of the evidence. Specifically,

Henkle argues that the trial court’s conclusions that there was consideration and a

“meeting of the minds” are against the manifest weight of the evidence. Henkle

argues in his third assignment of error that the trial court’s conclusion that Henkle

contracted with Sutter in his individual capacity is against the manifest weight of

the evidence.

       {¶7} The parties do not dispute that they entered a valid and enforceable

written contract for the construction of the mother-in-law-suite addition to Sutter’s

home. During the construction of the mother-in-law-suite addition, a dispute arose

regarding a means of access to and from the rear-patio door of the addition. Sutter

desired concrete steps to be installed from the rear-patio door of the mother-in-

law-suite addition to the side door of the existing house. Henkle does not install

concrete steps. The issues in this case are whether Henkle orally agreed to pay

half of the cost of the concrete steps to complete the mother-in-law-suite addition

and whether he orally agreed to do so in his individual capacity. Therefore, before

us are the issues of whether the parties entered a valid and enforceable settlement

agreement and whether Henkle agreed to be personally liable for that settlement

agreement.

       {¶8} “A settlement agreement is viewed as a particularized form of a

contract.” Brotherwood v. Gonzalez, 3d Dist. Mercer No. 10-06-33, 2007-Ohio-


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3340, ¶ 11, citing Noroski v. Fallet, 2 Ohio St.3d 77, 79 (1982). “It is a contract

designed to terminate a claim by preventing or ending litigation, and such

agreements are valid and enforceable by either party.” Id., citing Continental W.

Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501,

502 (1996). “To be enforceable as a binding contract, a settlement agreement

requires no more formality than any other type of contract. It need not necessarily

be signed, as even oral settlement agreements may be enforceable.” B.W. Rogers

Co. v. Wells Bros., 3d Dist. Shelby No. 17-11-25, 2012-Ohio-750, ¶ 27, citing

Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 15. “Therefore, the

interpretation of a settlement agreement is governed by the law of contracts.”

Brotherwood at ¶ 11, citing Chirchiglia v. Ohio Bur. of Workers’ Comp., 138 Ohio

App.3d 676, 679 (7th Dist.2000).

      {¶9} “In order to establish a breach of a settlement agreement, the party

alleging such breach must prove: ‘1) existence of the Settlement Agreement, 2)

performance by the plaintiff, 3) breach by the defendant, 4) resulting damages or

loss to the plaintiff.’” Ohio Title Corp. v. Pingue, 10th Dist. Franklin No. 10AP-

1010, 2012-Ohio-1370, ¶ 26, quoting Raymond J. Schaefer, Inc. v. Pytlik, 6th Dist.

No. OT-09-026, 2010-Ohio-4714, ¶ 24.          “The party seeking to enforce the

settlement agreement bears the burden to prove, by a preponderance of the

evidence, all of the elements of a claim for breach of a settlement agreement.”


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Rondy, Inc. v. Goodyear Tire Rubber Co., 9th Dist. Summit No. 21608, 2004-

Ohio-835, ¶ 7, citing Cooper & Pachell v. Haslage, 142 Ohio App.3d 704, 707

(9th Dist.2001), citing AMF, Inc. v. Mravec, 2 Ohio App.3d 29 (8th Dist.1981),

paragraph two of the syllabus. “A preponderance of the evidence means the

greater weight of the evidence.” Adams v. Disbennett, 3d Dist. Marion No. 9-08-

14, 2008-Ohio-5398, ¶ 14, citing Steingass Mechanical Contracting, Inc. v.

Warrensville Heights Bd. of Educ., 151 Ohio App.3d 321, 2003-Ohio-28, ¶ 30 (8th

Dist.), citing Travelers’ Ins. Co. of Hartford Connecticut v. Gath, 118 Ohio St.

257 (1928).

       {¶10} “It is preferable that a settlement be memorialized in writing.”

Kostelnik at ¶ 15. “However, an oral settlement agreement may be enforceable if

there is sufficient particularity to form a binding contract.” Id. “Terms of an oral

contract may be determined from ‘words, deeds, acts, and silence of the parties.’”

Id., quoting Rutledge v. Hoffman, 81 Ohio App. 85 (1st Dist.1947), paragraph one

of the syllabus. “The elements necessary to form a contract include ‘an offer,

acceptance, contractual capacity, consideration (the bargained for legal benefit

and/or detriment), a manifestation of mutual assent and legality of object of

consideration.’” B.W. Rogers Co. at ¶ 26, quoting Kostelnik at ¶ 16.

“Additionally, ‘[a] meeting of the minds as to the essential terms of the contract is

a requirement to enforcing the contract.’” Id., quoting Kostelnik at ¶ 16 and citing


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Episcopal Retirement Homes, Inc. v. Ohio Dep’t. of Industrial Relations, 61 Ohio

St.3d 366, 369 (1991).

      {¶11} “Our appellate review of a decision on the existence of a contract

raises a ‘mixed question of fact and law.’” Id. at ¶ 29, quoting Hickman v. Cole,

3d Dist. Hancock No. 5-98-30, 1999 WL 254379, *4 (Apr. 7, 1999).

      “‘We accept the facts found by the trial court on some competent,

      credible evidence, but freely review application of the law to the

      facts. A reviewing court should be guided by a presumption that the

      findings of a trial court are correct, since the trial judge is best able

      to view the witnesses and observe their demeanor, gestures and

      voice inflections, and use their observations in weighing credibility

      of the proffered testimony.’”

Id., quoting Cramer v. Bucher, 3d Dist. Hancock No. 5-02-01, 2002-Ohio-3397, ¶

9, quoting, McSweeney v. Jackson, 117 Ohio App.3d 623, 632 (4th Dist.1996).

“[W]here there is a dispute that contests the existence of a settlement agreement, a

trial court must conduct an evidentiary hearing prior to entering judgment.” Rulli

v. Fan Co., 79 Ohio St.3d 374 (1997), syllabus.

      {¶12} The parties dispute whether they orally entered into a valid and

enforceable settlement agreement. In particular, Henkle argues that the parties did

not execute a valid and enforceable settlement agreement because there is no


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competent, credible evidence of consideration or a meeting of the minds as to the

essential terms of the settlement agreement. Because Henkle challenges only the

trial court’s conclusion that there was consideration and a meeting of the minds as

to the essential terms of the settlement agreement, we will address the trial court’s

factual findings and legal conclusions only as to those components.

       {¶13} The trial court did not err in concluding that Henkle breached the

settlement agreement because there is some competent, credible evidence that the

parties entered a valid and enforceable settlement agreement—that is, there is

some competent, credible evidence of consideration and a meeting of the minds as

to the essential terms of the settlement agreement.

       {¶14} With respect to the element of consideration, the trial court found

that Henkle “made the promise to pay out of exasperation in order to bring his

relationship to [Sutter] to a close[.]” (Doc. No. 12). Indeed, Sutter testified that

Henkle

       came to [her] house to settle [their] ending bills that [she] owed him

       and while he was there, [she] discussed that [she] didn’t have any

       steps leading out of [her] house. And upon that conversation, he

       agreed that, yes, [she] needed steps out the back of [her] house and

       he would pay for half because when [she] - - [she] wanted the steps

       to go all the way across, but there was a back door and a patio door.


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       So [she] just said - - and that was all he was required to put a step to

       * * * So [she] said, well, if you don’t want to pay for all of that

       across, [she will] pay for half of it. And so he said okay, he would.

(Aug. 13, 2015 Tr. at 11). Sutter testified that she assumed that her contract with

Henkle would include steps for her to be able to access the rear patio door of the

mother-in-law-suite addition. (Id. at 19, 20). However, she testified that Henkle

“didn’t think he needed to put steps out [her] back door.” (Id. at 19). According

to Sutter, she eventually convinced Henkle that “he needed to put steps out [her]

back door.” (Id.). She testified that she wanted concrete steps “all the way

across,” but Henkle “didn’t want to pay for that all the way across.” (Id. at 12).

She testified that she compromised and offered to pay for half of the cost and that

Henkle agreed. (Id. at 21). Sutter further testified that she keeps a journal and

wrote in her journal that day, “‘He also said he was willing to pay for half of the

back steps.’” (Id. at 66). Sutter testified that she arranged for the steps to be

installed after her conversation with Henkle. (Id. at 25).

       {¶15} Sutter’s daughter, Holli Enderud (“Enderud”) also testified on behalf

of Sutter. (Id. at 51). According to Enderud, she was present throughout the

construction process and that she, Sutter, Enderud’s husband, and Henkle, when

they initially met to discuss the project, decided to discuss the steps “later on when

it got time for that decision to be made.” (Id. at 52-53). Enderud testified that,


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when the project was finished, she was present when Sutter discussed the steps

with Henkle. (Id. at 53). She testified that Sutter told Henkle that she wanted

concrete steps. (Id.). According to Enderud, Henkle contacted “the man who

poured approach [sic] to the garage, Mitch Scott,” but Mitch Scott (“Scott”) was

not interested in constructing the concrete steps. (Id. at 54). Enderud testified that

Sutter and the Enderuds previously contracted with Mercer County Concrete and

offered to contact that company to see if it would construct the steps. (Id.).

According to Enderud, Henkle told Sutter to contact Mercer County Concrete.

(Id.).   She testified that Sutter obtained a price quote from Mercer County

Concrete for the steps to extend “all the way across” as Sutter desired, presented it

to Henkle, and Sutter offered to pay half of the project because “if you divide out

the length of the patio door and the side door, it’s more than half. There’s only a

little bit in between the two doors and the ends that’s extra.” (Id.).

         {¶16} Henkle testified to the tension between the parties, as well as to the

conflict between Sutter and Henkle’s subcontractors throughout the project. (Id. at

73-75, 81-84). Henkle testified about a second written contract between Henkle

Construction, LLC and Sutter for a basement-finishing project. (Id. at 83). He

testified that he told Sutter, regarding that second written contract, that he did not

have time to complete the project, but that she repeatedly contacted him about it.

(Id. at 83-84, 88-89). Henkle further testified that he went to Sutter’s home on


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several occasions to repair things that she claimed were defective or not working

and did not charge her for his services. (Id. at 85-86, 88). Henkle testified, “I

have bent over backwards, and I told her that several times. I’ve done everything

in my power to try to keep you happy, and it’s not possible. And as for every

other subcontractor that worked there, had nothing but problems.” (Id. at 87).

Henkle testified that it is “[v]ery safe” to say that he is done doing any work for

Sutter. (Id. at 89).

       {¶17} Regarding the concrete steps, Henkle testified that he knew Sutter

wanted the concrete steps but that he did not agree to pay for half of the cost of the

steps. (Id. at 78, 91). According to Henkle, Sutter asked him “what we was [sic]

going to do with the steps.” (Id. at 96). Henkle testified that he responded to

Sutter that he thought that she was going to build a deck, but that Sutter informed

him that she wanted the concrete steps instead. (Id.). Henkle testified, “I said you

can have concrete steps. I got [Scott] out to give her a price on the concrete

steps,” but Scott did not want to construct the steps. (Id. at 96-97). According to

Henkle, he informed Sutter that concrete steps would be expensive, and she asked

him what he had “figured for the steps back there,” to which Henkle responded to

Sutter that he did not have “anything figured for the steps back there from the git-

go [sic].” (Id. at 97). Henkle testified that “[she] said, well, go ahead, and we’ll

get the price on it. And that’s how it was left.” (Id.).


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       {¶18} Based on the testimony of Sutter, Enderud, and Henkle, the trial

court’s factual findings regarding the element of consideration are supported by

some competent, credible evidence. We also agree with the trial court’s legal

conclusion that there was sufficient particularity of the element of consideration.

“Consideration may consist either in a detriment to the promisee or a benefit to the

promisor.” Nilavar v. Osborn, 137 Ohio App.3d 469, 485 (2d Dist.2000), citing

Brads v. First Baptist Church, 89 Ohio App.3d 328, 336 (2d Dist.1993). It is not

necessary that the consideration given by each party to a contract be expressed,

rather, the consideration “may be inferred from the terms and obvious import of

the contract.” Harvest Land Co-Op, Inc. v. Hora, 2d Dist. Montgomery No.

25068, 2012-Ohio-5915, ¶ 14, quoting 17 Ohio Jurisprudence 3d, Contracts,

Section 46, at 478 (1980).     Once consideration is established, courts are not

required to “inquire into the adequacy of the consideration.” Gallon v. Scouten,

6th Dist. Lucas No. L-06-1168, 2007-Ohio-2957, ¶ 18, citing Ford v. Tandy

Transp., Inc., 86 Ohio App.3d 364, 384 (4th Dist.1993). Henkle’s testimony

illustrates the strained relationship between the parties and his desire to end his

relationship with Sutter and her family. It can be inferred from the circumstances

surrounding the agreement that the consideration given is the implied promise to

bring the original contract, and the parties’ relationship, to an end. See Nilvar at

485-486 (concluding that the natural inference of consideration in an oral contract


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is the cooperation of each participant). Indeed, a settlement agreement is a type of

contract intended to terminate a claim by preventing litigation. See Brotherwood,

2007-Ohio-3340, at ¶ 11. In consideration of his promise to pay half of the

concrete steps, Henkle receives the benefit of Sutter’s implied promise to end the

dispute with him regarding the mother-in-law-suite contract.         In fact, Sutter

testified that Henkle came to her house to “settle” their final bills when the issue

of the concrete steps was discussed. (Aug. 13, 2015 Tr. at 11). Therefore, there is

some competent, credible evidence of the element of consideration.

       {¶19} There is also sufficient particularity as to the parties’ meeting of the

minds as to the essential terms of the settlement agreement. “Expressions of

assent are generally sufficient to show a meeting of the minds.” Rudd v. Online

Resources, Inc., 2d Dist. Montgomery No. 17500, 1999 WL 397351, *5 (June 18,

1999). “In a contract other than for the sale of goods, the ‘essential terms’ of the

contract generally are the parties to the contract and its subject matter.” Nilvar at

487, citing Nilvar v. Osborn, 127 Ohio App.3d 1, 13 (2d Dist.1993), citing 17

Ohio Jurisprudence 3d at 446. “The terms of a contract are sufficiently certain or

definite where they ‘“provide a basis for determining the existence of a breach and

for giving an appropriate remedy.”’” Id., quoting Mr. Mark Corp. v. Rush, Inc.,

11 Ohio App.3d 167, 169 (8th Dist.1983), quoting 1 Restatement of the Law 2d,

Contracts, Section 33, at 92 (1981). The parties testified that the contract for the


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mother-in-law-suite addition was complete but for a means of accessing the rear

patio door. Henkle testified that he told Sutter that she could have concrete steps

and that he went as far as contacting Scott for a price quote. For Scott to be able

to provide a price quote, it was necessary for Scott to learn of the specifications for

the steps. The evidence in the record indicates that Henkle was present when

Scott provided the estimate and indicated that he was not interested in the project.

Accordingly, there is some competent, credible evidence in the record that Henkle

knew the specific details of the concrete steps that Sutter wanted installed.

       {¶20} Furthermore, there is some competent, credible evidence in the

record that Henkle knew the approximate cost of the steps—that is, Henkle told

Sutter that the steps would be expensive, and Henkle knew the cost of Scott’s

estimate.

       {¶21} Lastly, Henkle testified that he “left” the topic of the concrete steps

with Sutter when she indicated to Henkle to “go ahead” and that she would obtain

another price quote. (Aug. 13, 2015 Tr. at 97). Despite Henkle’s testimony that

he did not agree to pay for half of the concrete steps, Henkle did not testify that he

protested or confirmed with Sutter that he would not be involved in any manner

with the concrete steps after Sutter told him to go ahead and that she would seek

another price quote. Therefore, there is some competent, credible evidence of




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sufficient particularity as to the parties’ meeting of the minds as to the essential

terms of the settlement agreement.

       {¶22} Because the record contains some competent, credible evidence of

consideration and a meeting of the minds as to the essential terms of the settlement

agreement, there is some competent, credible evidence that Sutter proved by a

preponderance of the evidence that a settlement agreement existed. Therefore, the

trial court correctly concluded that a settlement agreement existed and that Henkle

breached the settlement agreement.

       {¶23} Nonetheless, Henkle argues in his third assignment of error that the

trial court erred in holding him personally liable for the breach of the settlement

agreement. “‘Under Ohio law, as elsewhere, an LLC is neither a corporation nor a

partnership, as those concepts are commonly understood. Instead, an LLC is a

hybrid in that it is a form of legal entity that has attributes of both a corporation

and a partnership but is not formally characterized as either one.’” Dover Phila

Heating & Cooling, Inc. v. SJS Restaurants, Ltd., 185 Ohio App.3d 107, 2009-

Ohio-6187, ¶ 18 (5th Dist.), quoting In re Iclnds Notes Acquisition, L.L.C., 259

B.R. 289, 292 (Bankr.N.D.Ohio 2001). Under R.C. 1705.48(B), “‘[n]either the

members of the limited liability company nor any managers of the limited liability

company are personally liable to satisfy any judgment, decree, or order of a court

for, or are personally liable to satisfy in any other manner, a debt, obligation, or


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liability of the company solely by reason of being a member or manager of the

limited liability company.’” Id., quoting Sliman’s Printing, Inc. v. Velo Internatl.,

5th Dist. Stark No. 2004CA00095, 2005-Ohio-173, ¶ 13, quoting R.C.

1705.48(B).

       {¶24} However, “‘if a corporate officer executes an agreement in a way

that indicates personal liability, then that officer is personally liable regardless of

his intention.’” Hubbard Family Trust v. TNT Land Holdings, LLC, 4th Dist. Pike

No. 12CA833, 2014-Ohio-772, ¶ 38, quoting Spicer v. James, 21 Ohio App.3d

222, 223 (2d Dist.1985). “Whether an officer or agent is personally liable under

the contract depends upon ‘the form of the promise and the form of the

signature.’” Id., quoting Spicer at 223.

       {¶25} Henkle is a member of Henkle Construction, LLC. He argues that

the trial court’s conclusion that he is personally responsible for the debt is against

the manifest weight of the evidence because, if any agreement was made, it was

made in his capacity as a member of Henkle Construction, LLC, not in his

individual capacity. We disagree. There is some competent, credible evidence

that Henkle personally entered into the settlement agreement with Sutter.

       {¶26} In Dover Phila Heating & Cooling, Inc., Dover Phila Heating and

Cooling, Inc. sued SJS Restaurants, Ltd., a limited liability company, and a

member of SJS Restaurants, Ltd., Sheila Sherwood, in her individual capacity, for


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work performed on a restaurant. Dover Phila Heating & Cooling, Inc. at ¶ 3-6.

The First District Court of Appeals concluded that Shelia Sherwood could not be

held personally liable for the debt even though David Kinsey, the owner and

operator of Dover Phila Heating and Cooling, Inc., testified that he sued Sheila

Sherwood “because she was the person he dealt with in contracting for the repairs

to the restaurants” since Kinsey also “agreed that he had no basis to believe that

Sheila Sherwood was personally responsible for the debts, rather than SJS

Restaurants, Ltd.” Id. at ¶ 19. Similar to Dover Phila Heating & Cooling, Inc.,

Sutter testified at trial that she sued Henkle personally because he was the person

with whom she discussed the concrete steps. (Aug. 13, 2015 Tr. at 37). However,

unlike the facts of Dover Phila Heating & Cooling, Inc., there is no evidence in

the record that Sutter did not have a basis to believe that Henkle is personally

responsible for the debt for the concrete steps. Rather, there is testimony that

Henkle promised to pay half of the cost of the concrete steps. Therefore, the trial

court’s conclusion that Henkle, himself, is personally liable under the settlement

agreement is not against the manifest weight of the evidence.

      {¶27} Accordingly, the trial court’s judgment awarding Sutter $1,356.50 in

damages is supported by some competent, credible evidence and is not against the

manifest weight of the evidence.

      {¶28} Henkle’s assignments of error are overruled.


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       {¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, J., concurs.

ROGERS, J., concurs as to Assn. Nos. 1 & 2, dissents as to Assn. No. 3.

/jlr




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