[Cite as State ex rel. Hutch v. Village of Bolivar, 2018-Ohio-3460.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO EX REL.,                               :            JUDGES:
IRVIN W. HUTH                                        :            Hon. Patricia A. Delaney, P.J.
                                                     :            Hon. Craig R. Baldwin, J.
   Relator-Appellant                                 :            Hon. Earle E. Wise, Jr., J.
                                                     :
-vs-                                                 :
                                                     :
VILLAGE OF BOLIVAR                                   :            Case No. 2018 AP 03 0013
                                                     :
  Respondent-Appellee                                :            OPINION



CHARACTER OF PROCEEDING:                                          Appeal from the Court of Common
                                                                  Pleas, Case No. 2016 CV 05 0320




JUDGMENT:                                                         Affirmed




DATE OF JUDGMENT:                                                 August 27, 2018




APPEARANCES:

For Relator-Appellant                                             For Respondent-Appellee

MICHELA HUTH                                                      JOHN T.McLANDRICH
P. O. Box 17                                                      FRANK H. SCIALDONE
Bolivar, OH 44612                                                 100 Franklin's Row
                                                                  34305 Solon Road
                                                                  Cleveland, OH 44139
Tuscarawas County, Case No. 2018 AP 03 0013                                                2

Wise, Earle, J.

       {¶ 1} Relator-appellant Irvin W. Huth appeals the judgment of the Tuscarawas

County Court of Common Pleas judgment, after a bench trial, in favor of respondent-

appellee Village of Bolivar.

                               FACTS AND PROCEDURAL HISTORY

       {¶ 2} During the time relevant to this matter, the Village of Bolivar Village Council,

a public body, was comprised of Lisa Cochran, Robert Lloyd, Craig Slutz, Mary Vincent,

Andrew Marburger, and Timothy Lang (Village Council). The Village of Bolivar is an Ohio

municipal corporation subject to the Ohio Open Meetings Act (OMA).

       {¶ 3} In the spring of 2014, Lake Region Development Co., Ltd. offered to settle

litigation it had pending with the Village of Bolivar. A proposed settlement was drafted

between the parties, and became the subject of Ordinance No. O-94-2014.

       {¶ 4} On May 18, 2014 Village Council published a legal notice in the Times

Reporter, a local newspaper, which stated:



              The Village Council for the Village of Bolivar will hold a special

              session of Council on May 19, 2014 at 6:30 p.m. The purpose of this

              meeting will be for consideration of a settlement offer in the case of

              Lake Region Development Co., Ltd. v. Village of Bolivar. Council will

              discuss this pending litigation matter in executive session, but will

              take action in the public portion of the meeting. This meeting will be

              held in the Bolivar Village Hall at 109 N. Canal St., Bolivar, Ohio.
Tuscarawas County, Case No. 2018 AP 03 0013                                            3


      {¶ 5} The meeting took place as scheduled and was called to order by Rebecca

Hubble, the mayor of Bolivar. Hubble stated Village Council would go to executive

session. Appellant asked Hubble if the public would be permitted to speak after executive

session. Hubble advised that the general consensus was no, but that she would let council

make that decision after executive session. Appellant's attorney Michela Huth also

attended the meeting, and asked Village Council what it was going to discuss during

executive session. Jillian Daisher, an attorney for the council advised council would be

discussing the pending litigation. No Village Council member, nor the mayor addressed

the question. Despite being advised Council would not be taking any further questions,

appellant's attorney and appellant continued to interrupt.

      {¶ 6} Council member Slutz moved to go into executive session and was again

interrupted by appellant's attorney. Slutz did not state the purpose of the executive

session. Council member Lloyd seconded the motion as appellant's attorney continued

to speak over the Council Members. In a roll call vote all members voted yes to go into

executive session. All members of the public, with the exception of Bolivar Village

Council's two attorneys, Daisher and Tami Hannon, left the room.

      {¶ 7} Following executive session, after the public reentered the room, Mayor

Hubble announced "Public Speaks" would be allowed. Attorney Hannon then described

the settlement agreement followed by questions and comments from the public, including

appellant.

      {¶ 8} At the close of public discussion of the settlement, Council Member Slutz

moved to suspend the rules and pass Ordinance No. O-94-2014 as an emergency.

Council person Mary Vincent seconded the motion to suspend the rules. Slutz then made
Tuscarawas County, Case No. 2018 AP 03 0013                                               4


a motion to pass the ordinance that night and Lang seconded the motion. In a roll call

vote, the ordinance passed by a vote of 5-1.

       {¶ 9} On May 18, 2016, appellant filed a Verified Complaint in Mandamus and for

Injunction which set forth six causes of action, alleging that Village Council had violated

the OMA, specifically, R.C. 121.22(A), (B), (C), (G), and (H). Appellant's complaint alleged

Village Council had procedurally violated the OMA as to whether the public would be

permitted to speak, and the manner in which it went to executive session. Appellant

attached to his complaint a video he had taken of the May 19, 2014 special meeting which

was taken before Village Council went into executive session.

       {¶ 10} A bench trial was held on October 17, 2017. The parties stipulated to the

admission of all of appellant and appellee's exhibits, with the exception of appellant's

exhibits 2a and 2b, which the trial court excluded. Exhibit 2a was a copy of police report,

and 2b was a signed statement from Councilperson Lisa Cochran, which was attached to

the police report. The statement detailed activities taking place in the executive session

while the Village Council discussed the proposed settlement with its attorneys.

       {¶ 11} The parties submitted trial briefs. Thereafter, on March 6, 2018, the trial

court entered judgment in favor of appellee, dismissing each count of appellant's

complaint.

       {¶ 12} Appellant filed an appeal and the matter is now before this court for

consideration.

                                                 I

       {¶ 13} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

CONCLUDED 'ALL PORTIONS OF EXHIBITS 2A AND 2B THAT CONTAIN
Tuscarawas County, Case No. 2018 AP 03 0013                               5


STATEMENTS PROTECTED BY THE EXECUTIVE SESSION PRIVILEGE AND THE

ATTORNEY-CLIENT PRIVILEGE, INCLUDING LISA COCHRAN’S STATEMENTS

REGARDING WHAT HAPPENED DURING THE EXECUTIVE SESSION, SHALL NOT

BE ADMITTED AS EVIDENCE IN THIS MATTER'."

                                         II

     {¶ 14} "THE TRIAL COURT ERRED AND ABUSED IT DISCRETION, WHEN IT

DISMISSED WITH PREJUDICE COUNT ONE OF RELATOR’S COMPLAINT, AND

FOUND THAT BOLIVAR DID NOT VIOLATE R.C. 121.22(G) BECAUSE '[W]HILE THE

REQUIRED PURPOSE OF THE EXECUTIVE SESSION WAS NOT STATED BY A

VILLAGE COUNCIL MEMBER AS PART OF THE MOTION ITSELF, OR THE VOTE

ITSELF, THE STATED PURPOSE OF THE EXECUTIVE SESSION WAS STATED

IMMEDIATELY PRIOR TO THE MOTION AND VOTE TO ENTER EXECUTIVE

SESSION.   ADDITIONALLY,    THE    NOTICE     FOR   THE   SPECIAL   MEETING

SPECIFICALLY STATED THAT THE PURPOSE OF THE SPECIAL MEETING AND

EXECUTIVE SESSION WAS TO DISCUSS PENDING LITIGATION. AS SUCH, THE

COURT CONCLUDES THAT THE PUBLIC WAS WELL INFORMED THAT THE

PURPOSE OF THE EXECUTIVE SESSION WAS TO CONSIDER THE LAKE REGION

DEVELOPMENT CO. LTD. SETTLEMENT WITH THE VILLAGE OF BOLIVAR'."

                                        III

     {¶ 15} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN IT

DISMISSED WITH PREJUDICE COUNT TWO OF RELATOR’S COMPLAINT AND

FOUND '[T]HE LACK OF PUBLIC DELIBERATION AND THE ALLEGED EXECUTIVE

SESSION DISCUSSION REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN
Tuscarawas County, Case No. 2018 AP 03 0013                             6


OPEN MEETING ACTION VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL

ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'."

                                        IV

     {¶ 16} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DISMISSED WITH PREJUDICE COUNT FOUR OF RELATOR’S COMPLAINT, AND

CONCLUDED AND FOUND 'ALLEGED VIOLATION SET FORTH IN COUNT FOUR IS

SUBSTANTIALLY THE SAME AS THE VIOLATION ALLEGED IN COUNT TWO. THE

COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC DELIBERATION AND

THE ALLEGED EXECUTIVE SESSION DISCUSSION REGARDING PERMITTING

PUBLIC SPEAKS IN NOT AN OPEN MEETING ACTION VIOLATION AS IT DOES NOT

CONSTITUTE A FORMAL ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'."

                                         V

     {¶ 17} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DISMISSED WITH PREJUDICE COUNT FIVE OF RELATOR'S COMPLAINT, AND

CONCLUDED AND FOUND "THE ALLEGED VIOLATION IN COUNT FIVE IS

SUBSTANTIALLY THE SAME AS THE VIOLATIONS ALLEGED IN COUNTS TWO AND

FOUR. THE COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC

DELIBERATION    AND    THE    ALLEGED   EXECUTIVE    SESSION   DISCUSSION

REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN OPEN MEETING ACTION

VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL ACTION, RESOLUTION OF

RULE UNDER R.C. 121.22(H)."
Tuscarawas County, Case No. 2018 AP 03 0013                                                7


                                                VI

       {¶ 18} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DISMISSED WITH PREJUDICE COUNT THREE OF RELATOR'S COMPLAINT, AND

FOUND 'THE PURPOSE OF THE EXECUTIVE SESSION WAS TO DISCUSS PENDING

LITIGATION WITH LEGAL COUNSEL. THE SETTLEMENT WITH LAKE REGION

DEVELOPMENT CO., LTD., WAS PART OF THAT LITIGATION. THE VILLAGE

COUNCIL'S CONSIDERATION AND DISCUSSION OF THAT SETTLEMENT WITH

THEIR LEGAL COUNSEL IN EXECUTIVE SESSION WAS APPROPRIATE UNDER

121.22(G)(3)'."

                                                VII

       {¶ 19} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DISMISSED WITH PREJUDICE COUNT SIX OF RELATOR'S COMPLAINT, AND

FOUND '[I]N LIGHT OF THE COURT'S FACTUAL FINDINGS AND LEGAL

CONCLUSIONS LISTED ABOVE, THE COURT CONCLUDES THE INVALIDATION OF

ORDINANCE NO. 94-2014 IS NOT WARRANTED'."

                              ACCELERATED CALENDAR

          {¶ 20}     Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: “The appeal will be determined as provided by

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court's decision as to each error to be in brief and conclusionary form.”

          {¶ 21}     One of the most important purposes of the accelerated calendar is

to enable an appellate court to render a brief and conclusory decision more quickly than
Tuscarawas County, Case No. 2018 AP 03 0013                                             8


in a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d

655 (10th Dist.1983).

          {¶ 22}     This appeal shall be considered in accordance with the

aforementioned rules.

          {¶ 23}    For ease of discussion, we will address some of appellant's

assignments of error together and out of order.

                                                  II

          {¶ 24}    Appellant's second assignment of error argues the trial court erred in

dismissing count one of his complaint when it found Village Council had substantially

complied with the OMA in stating its reason for entering executive session. We disagree.

          {¶ 25}    On a denial of a writ of mandamus, our standard of review is an

abuse of discretion. State ex rel. River City Capital v. Clermont Cty. Bd. Of Commrs, 12th

Dist. Clermont No. 2010-07-51, 2011-Ohio-4039, ¶ 23. In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

          {¶ 26}    The OMA states that “[a]ll meetings of any public body are declared

to be public meetings open to the public at all times.” R.C. 121.22(C). Any formal action

adopted in an open meeting that results from deliberations in a meeting not open to the

public is invalid unless (1) the meeting not open to the public was an executive session;

(2) the public body utilized the proper procedures to enter into an executive session; and

(3) the executive session was for a reason enumerated as one of the exceptions to the
Tuscarawas County, Case No. 2018 AP 03 0013                                                 9


OMA under R.C. 121.22(G). R.C. 121.22(H). A public body can only enter an executive

session from a properly held regular or special meeting, and only after a roll call vote of

a quorum of the members present. R.C. 121.22(G). To properly hold a special meeting,

the public body must follow the required notice procedures. R.C. 121.22(F). Further, "[i]f

a public body holds an executive session to consider any of the matters listed in divisions

(G)(2) to (8) of this section, the motion and vote to hold that executive session shall state

which one or more of the approved matters listed in those divisions are to be considered

at the executive session." R.C. 121.22(G)(8)(b).

             {¶ 27}   “[T]he party asserting a violation of [the OMA] has the ultimate

burden to prove [the OMA] was violated (or was threatened to be violated) by a public

body.” State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Clermont Nos.

CA2011-05-045, CA2011-06-047, 2012-Ohio-2569, ¶ 24. “[T]he presumption of regularity

applies to official actions pursuant to the official's ordinary duties of office.” L.J. Smith,

Inc. v. Harrison Cty. Bd. of Revision, 140 Ohio St.3d 114, 2014-Ohio-2872, 16 N.E.3d

573, ¶ 28.

             {¶ 28}   The intent of the OMA, as set forth in R.C. 121.22, is to prevent public

bodies from engaging in secret deliberations on public issues with no accountability to the

public. Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-

703, 949 N.E.2d 1032, ¶ 9 (1st Dist.). Under the OMA, public officials are required “to

take official action and to conduct all deliberations upon official business only in open

meetings unless the subject matter is specifically excepted by law.” R.C. 121.22(A).

             {¶ 29}   After following the procedures outlined above, a public body may

discuss certain subject matter privately in an executive session. Tobacco Use Prevention
Tuscarawas County, Case No. 2018 AP 03 0013                                             10

& Control Found. Bd. of Trustees v. Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, 925

N.E.2d 641, ¶ 64 (10th Dist.) The exception relevant here is contained in R.C.

121.22(G)(3): "Conferences with an attorney for the public body that are the subject of

pending or imminent court action[.]"

          {¶ 30}    In this matter, the notice for the special meeting clearly stated the

purpose for both the special meeting and the executive session was to discuss pending

litigation with Lake Region Development Co. Ltd. Publisher's affidavit Legal Notice. At

the special meeting, Mayor Hubble notified those present that Village Council would be

entering executive session. Appellant's Exhibit 3, Video recording of Special Meeting Pre-

Executive Session 00:16-19. An attorney for the Village then stated Council would be

entering executive session to discuss pending litigation. Id., 01:25-28. A motion was then

made to enter executive session, although the motion itself did not state the reason. Id.

01:36. The motion was seconded and a roll call vote to enter executive session then took

place. Id. 01:41-02:06.

          {¶ 31}    First, appellant complains that in reaching its conclusion, the trial

court should have relied only on the minutes of the meeting and not appellant's own video

of the meeting. We note, however, there are gaps in the minutes of the meeting where

the secretary could not discern what was being said because appellant, his attorney, and

others were disruptive and speaking out of turn. It is necessary to review both the minutes

and the video of the meeting to understand what did or did not take place.

          {¶ 32}    Next, following a review of the notice of special meeting, the minutes

of the meeting, and the video, we note, as did the trial court, that the public was well

informed that the purpose of the executive session was to discuss the pending litigation
Tuscarawas County, Case No. 2018 AP 03 0013                                                11


and settlement with Lake Region Development Co. Ltd. It is apparent from viewing the

videos that everyone present at the meeting was well aware of the reason the meeting

was called and the reason for executive session. We have reviewed appellant's

arguments and authority in support and find the same unavailing. We conclude the trial

court did not abuse its discretion in finding that the intent of R.C. 121.22 was satisfied and

the Village of Bolivar did not violate the OMA.

          {¶ 33}     The second assignment of error is overruled.

                                                III, IV, V

          {¶ 34}     Appellant's third, fourth and fifth assignments of error concern the

trial court's resolution of appellant's allegation that Village Council violated R.C.

121.22(H) when it allegedly discussed during executive session whether to allow Public

Speaks. According to appellant, the trial court erred when it found discussion regarding

permitting public speaks is not an OMA violation. We disagree.

          {¶ 35}     R.C. 121.22(H) states:



          (H) A resolution, rule, or formal action of any kind is invalid unless

          adopted in an open meeting of the public body. A resolution, rule, or

          formal action adopted in an open meeting that results from deliberations

          in a meeting not open to the public is invalid unless the deliberations

          were for a purpose specifically authorized in division (G) or (J) of this

          section and conducted at an executive session held in compliance with

          this section. A resolution, rule, or formal action adopted in an open
Tuscarawas County, Case No. 2018 AP 03 0013                                              12


          meeting is invalid if the public body that adopted the resolution, rule, or

          formal action violated division (F) of this section.



          {¶ 36}     The trial court took judicial notice of Village of Bolivar Municipal

Ordinance #0-84-2014, Article 21.2.1 which provides the procedure for allowing Public

Speaks. It states:



              The laws of the State of Ohio do not require that the public be granted

              an opportunity to speak in a public meeting. All public bodies of the

              Village of Bolivar have the discretion to allow or not allow public

              comment at each meeting. The public body shall announce whether

              or not there will be public comment at the meeting by verbally making

              an announcement regarding Public Speaks.



          {¶ 37}     Decision, March 6, 2018 at 7.

          {¶ 38}     Per R.C. 121.22(H), in order for a violation of the OMA to occur, some

resolution, rule, or formal action must have been adopted by Village Council after

deliberating in a meeting not open to the public. Cincinnati Enquirer v. Cincinnati Bd. Of

Education, 192 Ohio App.3d 566, 570, 2011-Ohio-703, 949 N.E.2d 1032 (1st Dist.).

          {¶ 39}     A public body deliberates “by thoroughly discussing all of the factors

involved [in a decision], carefully weighing the positive factors against the negative

factors, cautiously considering the ramifications of its proposed action, and gradually

arriving at a proper decision which reflects the legislative process.” Theile v. Harris, 1st
Tuscarawas County, Case No. 2018 AP 03 0013                                               13


Dist. No. C–860103, 1986 WL 6514 (June 11, 1986). Deliberations involve “more than

information-gathering, investigation, or fact-finding,” which are essential functions of any

board. Berner v. Woods, 9th Dist. No. 07CA009132, 2007-Ohio-6207, 2007 WL 4146645,

¶ 17, Holeski v. Lawrence, 85 Ohio App.3d 824, 829, 621 N.E.2d 802 (11th Dist. 1993).

For example, the act does not prevent board members from participating in question-and-

answer sessions with other persons who are not public officials. Id. 830.

          {¶ 40}     We agree with the trial court's finding that any lack of public

deliberation, or alleged discussion during executive session regarding public speaks was

not a violation of the OMA because it does not constitute a formal action, resolution or

rule pursuant to R.C. 121.22(H). See Steingass Mechanical v. Warrensville Hts. Bd. of

Edn., 151 Ohio App.3d 321, 2003-Ohio-28, 784 N.E.2d 118, ¶ 48-49. Rather, the decision

is merely administrative. Accordingly, we find no abuse of discretion and overrule

appellant's third, fourth, and fifth assignments of error.

                                                   VI

          {¶ 41}     In his sixth assignment of error, appellant argues the trial court erred

in finding the purpose to the executive session was to discuss pending litigation and that

the settlement offer by Lake Region Development was part of that litigation. According to

appellant, the settlement offer is not an excepted topic for executive session under R.C.

121.22(G) and thus any deliberations surrounding the settlement had to be conducted in

an open meeting. Appellant also revisits his complaint that Village Council did not follow

proper procedure before entering executive session. We disagree.

          {¶ 42}     We have already determined that the trial court did not abuse its

discretion in finding Village Council properly entered executive session. As for appellant's
Tuscarawas County, Case No. 2018 AP 03 0013                                          14


argument regarding discussion in executive session regarding the proposed settlement,

the Eighth District, in a matter regarding the discoverability of a settlement agreement

under public records provisions found:



             While R.C. 121.22(G)(3) permits a governmental body to privately

             discuss litigation, the statute expressly invalidates any resolution,

             rule or formal action adopted in the closed session unless the

             resolution, rule or formal action is adopted in an open meeting. See

             R.C. 121.22(H). Thus, once a conclusion is reached regarding

             pending or imminent litigation, the conclusion is to be made public,

             even though the deliberations leading to the conclusion were private.

             Since a settlement agreement contains the result of the bargaining

             process rather than revealing the details of the negotiations which

             led to the result, R.C. 121.22(G)(3), which exempts from public view

             only the conferences themselves, would not exempt a settlement

             agreement from disclosure.



          {¶ 43}    State ex rel. Kinsley v. Berea Bd. of Edn. 64 Ohio App.3d 659, 664,

582 N.E.2d 653 (1990); accord State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of

Commrs., 80 Ohio St.3d 134, 136, 684 N.E.2d 1222 (1997)

          {¶ 44}    Thus R.C. 121.22(G)(3) permits a public body to discuss and

deliberate on pending litigation, including a settlement agreement or offer in executive
Tuscarawas County, Case No. 2018 AP 03 0013                                              15


session as long as any action taken on the matter is adopted in an open meeting. That is

exactly what took place here. We therefore reject appellant's argument.

          {¶ 45}       Appellant further argues, under the same assignment of error that

Council could not discuss the settlement offer in executive session because according to

appellant, the offer was one-sided, and thus not a legitimate settlement offer. As noted

above, however, Council was permitted to discuss the offer in executive session. This is

true whether or not the offer met appellant's approval. We reject this argument as well.

          {¶ 46}       Finally, appellant attempts to transform the executive session

discussion from a discussion on pending litigation to a discussion on zoning changes, a

topic which may not be discussed in executive session. While the pending litigation may

have ultimately had some zoning implication, the purpose of the executive session was

to determine how to resolve the litigation against the Village, a permissible executive

session topic.

          {¶ 47}       We find no abuse of discretion, and reject appellant's sixth

assignment of error.

                                                  VII

          {¶ 48}       In his seventh assignment of error, appellant argues Ordinance No.

94-2014 is invalid because it resulted from deliberations not open to the public.

          {¶ 49}       Because we have found no abuse of discretion on the part of the trial

court in concluding there was no violation of the OMA, appellant's seventh assignment of

error must necessarily fail.
Tuscarawas County, Case No. 2018 AP 03 0013                                              16


                                                   I

            {¶ 50}    Appellant's first assignment of error argues the trial court erred and

abused its discretion when it found appellant's exhibits 2a and 2b inadmissible. Based on

our resolution of assignments of error II, III, IV and V, finding no violation of the OMA,

appellant's second assignment of error challenging evidentiary issues is moot pursuant

to App.R. 12(A)(1)(b) and (c). We therefore decline to address appellant's first assignment

of error.

            {¶ 51}    The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.


By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.




EEW/rw
