[Cite as Voleck v. Tennant, 2019-Ohio-4230.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                  VIRGINIA VOLECK ET AL.,

                           Plaintiffs-Appellants/Cross-Appellees,

                                                 v.

                        MARY BETH SHEBA TENNANT ET AL.,

                         Defendants-Appellees/Cross-Appellants.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 18 BE 0036


                                   Civil Appeal from the
                       Court of Common Pleas of Belmont County, Ohio
                                   Case No. 17 CV 0022

                                       BEFORE:
                Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                            JUDGMENT:
                                 Affirmed in Part. Reversed in Part.



 Atty. Theodore Tsoras, Tsoras Law Office, P.O. Box 150, 54491 Lysien Road,
 Powhatan Point, Ohio 43942, for Plaintiffs-Appellants/Cross-Appellees, and

 Atty. Ryan Regel and Atty. Jordan Croucher, Yoss Law Office, 122 North Main Street,
 Woodsfield, Ohio 43793, for Defendants-Appellees/Cross-Appellants.
                                                                                      –2–



                                        Dated:
                                    October 10, 2019

 DONOFRIO, J.


       {¶1}     Plaintiffs-appellants/cross-appellees, Virginia and John Voleck, appeal the
Belmont County Common Pleas Court’s judgment granting a motion in limine and
granting a directed verdict during a jury trial in favor of defendants-appellees/cross-
appellants, Mary Beth and Carl Tennant. The Tennants cross-appeal the trial court’s
judgment denying their motion for summary judgment.
       {¶2}     On September 14, 1988, Mary Beth purchased 3.81 acres of real property
in Powhatan Point, Ohio (the property). This purchase was financed in part by her sister
and brother-in-law, the Volecks. The Volecks gave Mary Beth $10,000 towards the
purchase of the property. The nature of the $10,000 the Volecks gave to Mary Beth is in
dispute.
       {¶3}     According to the Volecks, they had an oral contract with Mary Beth in
which they would receive a portion of the property. The Volecks would provide Mary Beth
with $10,000 and co-sign a mortgage on the property with Mary Beth. In exchange, the
Volecks would receive 2.424 acres of the property. According to the Tennants, the
$10,000 from the Volecks was either a loan that the Volecks eventually forgave or a gift
to Mary Beth.
       {¶4}     In January of 1989, the Volecks hired Steve Hill to perform a survey of the
property in order to allocate which portion would belong to them. In 2008, the Volecks
hired a contractor to inspect the property for the purpose of building a house on their
portion.   Other than these two acts, the Volecks did not take any steps towards
constructing a house on the property. The Volecks did not intend to build a house on
their part of the property until 2013 when John was scheduled to retire
       {¶5}     The Tennants did not transfer any part of the property to the Volecks. In
August of 2013, the Tennants explicitly told the Volecks they would not transfer any
portion of the property.




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       {¶6}    The Volecks filed this action on January 23, 2017 asserting claims of:
breach of oral contract, promissory estoppel, unjust enrichment, and intentional infliction
of emotional distress. They sought specific performance on the oral contract, punitive
damages, compensatory damages, and incidental damages.
       {¶7}    The Tennants filed an answer and a counterclaim. Relevant to this appeal,
their answer asserted the affirmative defenses of statute of frauds and statute of
limitations. The Tennants’ counterclaim set forth a cause of action for slander.
       {¶8}    After discovery, both parties filed motions for summary judgment. The
Tennants’ motion argued that the Volecks’ contractual and quasi-contractual claims were
all barred by either the statute of frauds or the statute of limitations. The Tennants argued
that the Volecks’ contractual claims were based on an oral contract for land, which
violated the statute of frauds. They also argued that, if a contract existed, it was breached
in 1988 and any claim related to the contract was barred by the statute of limitations.
       {¶9}    The Volecks’ response to the Tennants’ motion for summary judgment
argued that the statute of frauds did not bar their breach of contract claim under the
doctrine of part performance because they gave Mary Beth $10,000 in order to purchase
the property. The Volecks also argued that the six-year statute of limitations pursuant to
R.C. 2305.07 did not expire because the Tennants did not breach the contract until August
of 2013, when they told the Volecks that no part of the property would be transferred.
       {¶10}   The Volecks’ motion for summary judgment argued that the Tennants’
slander claim was barred by the one-year statute of limitations. The Tennants opposed
this motion arguing that their counterclaim was not time barred.
       {¶11}   In a judgment entry dated January 8, 2018, the trial court sustained the
Volecks’ motion for summary judgment on the slander counterclaim. The trial court
denied the Tennants’ motion for summary judgment. Regarding the statute of limitations,
the trial court held that the Volecks’ contractual claims accrued in August of 2013.
       {¶12}   Prior to trial, both parties filed motions in limine. Relevant to this appeal,
one of the Tennants’ motions in limine sought to exclude the testimony of Dr. Homayoun
Hajiran, the Volecks’ damages expert, on the basis that the Volecks did not provide them
with Dr. Hajiran’s curriculum vitae (CV). Alternatively, the Tennants sought to limit Dr.
Hajiran’s testimony to damages sustained after August 13, 2013 (the date the Volecks



Case No. 18 BE 0036
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claim the oral contract was breached). The trial court granted this motion and held that
the Volecks’ damages on their breach of contract claim began on August 13, 2013.
       {¶13}    The matter proceeded to a jury trial. During the Volecks’ case-in-chief,
they presented evidence that an oral contract existed between them and Mary Beth.
Under the terms of the contract, the Volecks would give Mary Beth $10,000 to purchase
the property and co-sign a mortgage on the property with Mary Beth. In exchange, Mary
Beth would give the Volecks 2.424 acres of the property. John denied that the $10,000
was a loan or a gift.       On cross-examination, Virginia testified she did not have a
conversation with Mary Beth about the property’s oil and gas rights.
       {¶14}    After the Volecks rested, the Tennants moved for a directed verdict on
three grounds. Relevant to this appeal, the Tennants argued that the trial court should
limit the Volecks’ relief on their contractual claims to the surface area and not include an
oil and gas royalty. The trial court granted this directed verdict on the basis that there
was no evidence that oil and gas rights were included in the original contract’s terms. The
Volecks objected to this ruling arguing that it is the seller’s responsibility to reserve oil and
gas rights in a land transaction. The trial court overruled that objection and held that the
contractual claims would be limited to a claim for the surface rights.
       {¶15}    After the directed verdict motion, the Tennants presented their case-in-
chief. The Tennants’ witnesses focused their testimony on the negative relationship
between Virginia and Mary Beth.            The two are sisters who have had a negative
relationship for several years. Mary Beth also testified that the $10,000 the Volecks gave
her was a gift and the property always belonged to her.
       {¶16}    After closing arguments, the trial court instructed the jury on three
affirmative defenses: laches, waiver, and failure to mitigate. The Tennants did not object
to the jury instructions.
       {¶17} The jury found that there was an oral contract for the purchase of 2.424
acres of property between the Volecks and Mary Beth and Mary Beth breached said
contract. The jury awarded the Volecks specific performance of the contract but denied
the Volecks monetary damages.             The jury found against Virginia on her intentional
infliction of emotional distress claim.




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       {¶18}   The trial court journalized the jury’s findings on May 17, 2018 and ordered
the Tennants to convey 2.424 acres of the property to the Volecks. The Volecks timely
filed a notice of appeal on June 13, 2018 and now raise two assignments of error. The
Tennants timely filed their cross-appeal on June 14, 2018 and raise two cross-
assignments of error.
       {¶19}   We will begin with the Volecks’ assignments of error.              Their first
assignment of error states:

               THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
       THAT THE APPELLANTS WERE REQUIRED TO SHOW THE PARTIES
       FULLY INTENDED THE MINERAL RIGHTS TO BE INCLUDED IN THE
       CONVEYANCE OF THE REAL PROPERTY WHEN THEY ENTERED
       INTO AN ORAL AGREEMENT IN 1988.

       {¶20}   It must be noted that this assignment of error is misleadingly titled. In this
assignment of error, the Volecks argue that the trial court limited their claim for damages
in its rulings on motions in limine. They argue that the issue of damages is substantive
in nature and motions in limine are limited to only evidentiary issues.
       {¶21}   Decisions granting or denying motions in limine are reviewed for abuse of
discretion. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-
1507, 989 N.E.2d 35, ¶ 22. An abuse of discretion is more than an error of law or
judgment; it implies that the trial court's judgment was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
       {¶22}   “As related to trial, a motion in limine is a precautionary request, directed
to the inherent discretion of the trial judge, to limit the examination of witnesses by
opposing counsel in a specified area until its admissibility is determined by the court
outside the presence of the jury.” State v. Charley, 7th Dist. Belmont No. 05 BE 34, 2007-
Ohio-1108, ¶ 49 quoting State v. Grubb, 28 Ohio St.3d 199, 503 N.E.2d 142 (1986).
       {¶23}   “[A] motion in limine, if granted, is a tentative, interlocutory, precautionary
ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue.”
Grubb, 28 Ohio St.3d at 201–202. In limine rulings are not final; they can be revisited


Case No. 18 BE 0036
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and changed during the course of a trial. State v. Croom, 7th Dist. Mahoning No. 12 MA
54, 2013–Ohio–5682, ¶ 173.         Failing to lodge a contemporaneous objection to the
disputed evidence during trial waives review of the purported error on appeal. State v.
Hill, 75 Ohio St.3d 195, 203, 661 N.E.2d 1068 (1996).
         {¶24}   The trial court’s rulings on summary judgment held that the Volecks’
contractual claims accrued in August of 2013. The Tennants’ motions in limine sought to
exclude, among other things, the testimony of Dr. Hajiran on the basis that the Volecks
did not provide a copy of Dr. Hajiran’s CV to them during discovery. Alternatively, the
Tennants sought to limit Dr. Hajiran’s testimony to damages occurring on or after August
13, 2013 on the basis that the trial court’s summary judgment rulings held that the
Volecks’ causes of action relating to the property accrued in August of 2013.
         {¶25}   The Volecks’ arguments in this assignment of error lack merit for two
reasons. First, they did not properly preserve the ruling on motions in limine for appellate
review. Hill requires a contemporaneous objection to the disputed evidence at trial. The
record shows that the Volecks did not object to any limits to Dr. Hajiran’s testimony at
trial.
         {¶26} Second, the trial court’s ruling limiting Dr. Hajiran’s testimony concerned a
proper evidentiary matter for a motion in limine. The trial court held that the Volecks’
contractual claims accrued in August of 2013. This would make testimony from Dr.
Hajiran on damages prior to August of 2013 irrelevant pursuant to Evid.R. 402 at the trial.
         {¶27} Evidence is relevant if it has any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence. Evid.R. 401. Evidence that is not relevant
is not admissible. Evid.R. 402. The Volecks do not contest the trial court’s ruling that
their contractual and quasi-contractual claims accrued in August of 2013. Because the
trial court held that the Volecks’ contractual and quasi-contractual claims accrued in and
around August of 2013, any damages the Volecks sustained before August of 2013 would
be irrelevant to any issue at trial. Therefore, the trial court did not abuse its discretion
when it granted the Tennants’ motion in limine concerning Dr. Hajiran’s testimony.
         {¶28}   Accordingly, the Volecks’ first assignment of error lacks merit and is
overruled.



Case No. 18 BE 0036
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       {¶29}    The Volecks’ second assignment of error states:

               WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
       WHEN IT DIRECTED A VERDICT AND HELD THE APPELLANTS AS A
       MATTER OF LAW HAD NO CLAIM TO ANY OF THE OIL AND GAS
       CONCERNING THE 2.42 ACRES OF PROPERTY.

       {¶30}    The Volecks argue that the agreement between them and Mary Beth
included all rights to their portion of the property, including oil and gas rights. They argue
that the trial court’s directed verdict in favor of the Tennants on the issue of oil and gas
rights was error.
       {¶31}    A trial court's decision granting a motion for directed verdict presents a
question of law, which an appellate court reviews de novo. Carter v. R & B Pizza Co.,
Inc., 7th Dist. Jefferson No. 09JE34, 2010-Ohio-5937, ¶ 15. The applicable standard of
review for a directed verdict is set forth in Civ.R. 50(A)(4):

       When granted on the evidence. When a motion for a directed verdict has
       been properly made, and the trial court, after construing the evidence most
       strongly in favor of the party against whom the motion is directed, finds that
       upon any determinative issue reasonable minds could come to but one
       conclusion upon the evidence submitted and that conclusion is adverse to
       such party, the court shall sustain the motion and direct a verdict for the
       moving party as to that issue.

       {¶32} During the Volecks’ case-in-chief, John testified that, in 1988, Mary Beth
offered to give the Volecks land in exchange for $10,000 and co-signing on a loan. The
Volecks accepted Mary Beth’s terms. Shortly before the Volecks accepted, the parties
went to the property and determined how much of the property the Volecks would receive.
Approximately four months after the agreement, the Volecks hired Steve Hill to survey
the property. Mary Beth was aware of Hill’s survey and the Volecks provided her with a
copy of the survey. Mary Beth was also aware that the Volecks did not intend to build a
house on their portion of the property until May 17, 2013; the date John Voleck was




Case No. 18 BE 0036
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scheduled to retire. On cross-examination, Virginia testified that she did not discuss the
property’s oil and gas rights with Mary Beth.
       {¶33}    The Volecks cite Lighthorse v. Clinefelter, 36 Ohio App.3d 204, 521 N.E.2d
1146 (9th Dist.1987). In Lighthorse, the Ninth District held that minerals, oil, and gas are
considered “realty” until they are physically severed from the land. Id. at 205-206 citing
Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N.E. 399 (1897).
       {¶34} Similarly, this court has held that un-severed minerals are real property;
until they are severed at which point they become personal property. Miller v. Cloud, 7th
Dist. Columbiana No. 15 CO 0018, 2016-Ohio-5390, ¶ 57 citing Back v. Ohio Fuel Gas
Co., 160 Ohio St. 81, 113 N.E.2d 865 (1953). Petroleum oil is considered a mineral and
as long as it is in the ground, it is part of the realty. Id.
       {¶35}    In addition, there is no evidence that the property’s oil and gas rights were
excepted or reserved.       Oil and gas rights must be excepted or reserved in a title
transaction, otherwise those rights transfer with the surface. See Porterfield v. Bruner
Land Company, Inc., 7th Dist. No. 16 HA 0019, 2017-Ohio-9045, ¶ 27. Based on the
aforementioned case law, the property’s oil and gas are part of the realty. Construing the
evidence most strongly in favor of the Volecks, reasonable minds could conclude that the
Tennants intended to convey 2.424 acres of real property, including the associated oil
and gas rights, to the Volecks.
       {¶36}    In response, the Tennants cite Schlaegel v. Howell, 2d Dist. Champaign
No. 2014-CA-37, 2015-Ohio-4296, for the principle of contract law that, to be enforceable,
there must be a “meeting of the minds as to the essential terms of the contract.” Id. at ¶
17 quoting Minster Farms Coop. Exchange Co. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-
2159, 884 N.E.2d 1056. The Tennants argue that there was never a meeting of the minds
in this case as to the property’s oil and gas rights.
       {¶37}    The Tennants argument lacks merit. Viewing the evidence most strongly
in favor of the Volecks, reasonable minds could conclude that an oral contract for the sale
of land existed in this case. The terms of the contract were that the Volecks would give
Mary Beth $10,000 and co-sign on a loan in exchange for 2.424 acres of the property.
As there was no evidence presented that the oil and gas rights were excepted or reserved
from the property, the oil and gas rights are considered part of the real property.



Case No. 18 BE 0036
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Therefore, reasonable minds could conclude that the oil and gas rights were part of the
transaction and there was a meeting of the minds as to that term.
       {¶38}   Accordingly, the Volecks’ second assignment of error has merit and is
sustained.
       {¶39}   We turn now to the Tennants’ cross-assignments of error. Their first cross-
assignment of error states:

               THE TRIAL COURT ERRED IN DENYING APPELLEES [sic]
       MOTION FOR SUMMARY JUDGMENT BY HOLDING THAT THE
       ALLEGED        ORAL    CONTRACT         BETWEEN       APPELLANTS        AND
       APPELLEES WAS NOT BARRED BY THE STATUTE OF FRAUDS WHICH
       NEGATES THE ENFORCEABILITY OF AN ORAL CONTRACT FOR THE
       CONVEYANCE OF REAL ESTATE.

       {¶40}   The Tennants argue that because this case concerns an oral contract for
land, it is barred by the statute of frauds. They also argue that the Volecks did not put
forth sufficient evidence to satisfy the doctrine of part performance.
       {¶41}   An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the nonmoving party, determines that: (1) there are no genuine issues
as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3)
the evidence is such that reasonable minds can come to but one conclusion and that
conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St. 3d
24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶42}   Summary judgment is appropriate when there is no genuine issue as to
any material fact. A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d
1088 (8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).




Case No. 18 BE 0036
                                                                                        – 10 –


       {¶43}    Since there was a full trial on the merits in this case, the denial of a motion
for summary judgment is generally not reviewable. See Calvary S.P.V.I., L.L.C. v. Krantz,
8th Dist. Cuyahoga No. 97422, 2012-Ohio-2202, ¶ 9, see also A N Bros. Corp. v. Total
Quality Logistics, L.L.C., 12th Dist. Clermont No. CA2015-02-021, 2016-Ohio-549, ¶ 19.
But when the denial of a motion for summary judgment is based on a pure question of
law and that question of law has an impact on the case, then the denial of summary
judgment may be reviewed. Bobb Forest Products, Inc. v. Morbark Industries, Inc., 151
Ohio App.3d 63, 783 N.E.2d 560, ¶ 40 (7th Dist.2002).
       {¶44} During summary judgment proceedings, there was a dispute as to whether
the statute of frauds barred the Volecks’ claims. The Tennants argued that summary
judgment in their favor was proper because the Volecks’ claims concerned an oral
contract for land and were therefore barred by the statute of frauds. The Volecks argued
that an exception to the statute of frauds, the doctrine of part performance, applied and
that their claims were not barred.
       {¶45} The trial court held that the Volecks provided sufficient evidence to support
their argument that they partially performed on the oral contract for land and denied the
Tennants’ motion for summary judgment on the statute of frauds issue. The matter then
proceeded to a jury trial on the issue of whether the Tennants breached the oral contract.
       {¶46} Determining whether the trial court properly ruled on the issue of statute of
frauds during summary judgment in this case would require an analysis of the facts before
the trial court during the summary judgment proceedings. Since there was a full trial on
the merits, the Tennants may only appeal the denial of a motion for summary judgment
on a pure issue of law that has an impact on the case.             Deciding whether partial
performance was met in this case requires a factual analysis and, therefore, is not a pure
question of law.
       {¶47} Accordingly, the Tennants’ first cross-assignment of error lacks merit and
is overruled.
       {¶48} The Tennants’ second cross-assignment of error states:

                THE TRIAL COURT ERRED IN DENYING DEFENDANTS [sic]
       MOTION FOR SUMMARY JUDGMENT BY HOLDING THE SIX (6) YEAR
       STATUTE OF LIMITATIONS FOR THE CAUSES OF ACTION FOR


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       BREACH OF ORAL CONTRACT, PROMISSORY ESTOPPEL, UNJUST
       ENRICHMENT, AND SPECIFIC PERFORMANCE DID NOT ACCRUE
       UNTIL AUGUST OF 2013.

       {¶49}    The Tennants argue that the Volecks’ contractual and quasi-contractual
claims began to accrue in 1988 when Mary Beth acquired the property but did not deed
any portion of it to the Volecks. They argue that because the Volecks’ contractual and
quasi-contractual claims accrued in 1988, those claims are barred by the six-year statute
of limitations pursuant to R.C. 2305.07.
       {¶50}    First, we must address whether we have the ability to review this
assignment of error. As previously stated, because there was a full trial on the merits,
the Tennants may only appeal the trial court’s denial of summary judgment on pure issues
of law that have an impact on the case.
       {¶51}    “Application of a statute of limitations presents a mixed question of law and
fact; when a cause of action accrues is a question of fact, but in the absence of a factual
issue, application of the limitations period is a question of law.” Schmitz v. National
Collegiate Athletics Association, 155 Ohio St.3d 389, 2018-Ohio-4391, 122 N.E.3d 80, ¶
11.
       {¶52} During summary judgment proceedings, there was a factual dispute as to
when the Volecks’ causes of action accrued. The Volecks argued that their causes of
action accrued in August of 2013 while the Tennants argued that the causes of action
accrued in 1988. The Tennants take issue with the trial court’s ruling that the Volecks’
causes of action accrued in August of 2013; they do not take issue with the trial court’s
application of the six-year statute of limitations pursuant to R.C. 2305.07. Because the
Tennants are appealing the trial court’s resolution of a factual dispute, this issue is not a
pure question of law. As there was a full trial on the merits in this case, we cannot review
the trial court’s denial of the motion for summary judgment regarding the statute of
limitations in this case.
       {¶53}    Accordingly, the Tennants’ second cross-assignment of error lacks merit
and is overruled.
       {¶54}    For the reasons stated above, the trial court’s denial of the Tennants’
motion for summary judgment and the trial court’s rulings on motions in limine are hereby


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affirmed. The trial court’s directed verdict on the issue of oil and gas rights in favor of the
Tennants is hereby reversed. Judgment is hereby entered in favor of the Volecks on the
issue of oil and gas rights for their 2.424 acres of the property.




Robb, J., concurs.
D’Apolito, J., concurs.




Case No. 18 BE 0036
[Cite as Voleck v. Tennant, 2019-Ohio-4230.]




         For the reasons stated in the Opinion rendered herein, the Tennants’ cross-
 assignments of error are overruled. The Volecks’ first assignment of error is overruled.
 The Volecks’ second assignment of error is sustained. The trial court’s directed verdict
 on the issue of oil and gas rights in favor of the Tennants is hereby reversed. The
 Volecks are awarded the oil and gas rights to the 2.424 acres of real property at issue
 in this case. The remainder of the trial court’s judgment is affirmed. It is the final
 judgment and order of this Court that the judgment of the Court of Common Pleas of
 Belmont County, Ohio, is affirmed in part and reversed in part. Costs to be taxed
 against the Tennants.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
