[Cite as Wolfe v. Grange Indemn. Ins. Co., 2012-Ohio-598.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                     :       JUDGES:
TINA WOLFE                                           :       Sheila G. Farmer, P.J.
                                                     :       John W. Wise, J.
                  Plaintiff-Appellee                 :       Julie A. Edwards, J.
                                                     :
-vs-                                                 :       Case No. 2010CA00339
                                                     :
                                                     :
GRANGE INDEMNITY INSURANCE                           :       OPINION
COMPANY, et al.,

                 Defendants-Appellants




CHARACTER OF PROCEEDING:                                      Civil Appeal from Stark County
                                                              Court of Common Pleas Case No.
                                                              2009-CV-01508

JUDGMENT:                                                     Affirmed In Part and Reversed and
                                                              Remanded In Part

DATE OF JUDGMENT ENTRY:                                       February 13, 2012

APPEARANCES:

For Plaintiff-Appellee                                        For Defendants-Appellants

ALLEN SCHULMAN, JR.                                           F. JAMES FOLEY
BRIAN L. ZIMMERMAN                                            Vorys, Sater, Seymour, and
Schulman Zimmerman & Associates                               Pease, LLP
236 third Street, S.W.                                        52 East Gay Street, P.O. Box 1008
Canton, Ohio 44702                                            Columbus, Ohio 43216-1008

                                                              PHILIP DOWNEY
                                                              JOHN W. SOLOMON
                                                              Vorys, Ster, Seymour, and
                                                              Pease, LLP
                                                              First National tower
                                                              106 South Main Street
                                                              Akron, Ohio 44308
[Cite as Wolfe v. Grange Indemn. Ins. Co., 2012-Ohio-598.]


Edwards, J.

        {¶1}    Appellants, Grange Indemnity Insurance Company and Grange Mutual

Casualty Company, (hereinafter “Grange”), appeal a judgment of the Stark County

Common Pleas Court certifying a class action. Appellee is Tina Wolfe.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    Appellee was injured in a one-vehicle automobile accident. Her medical

payment benefits were provided under an automobile insurance policy issued by

Grange which provides in pertinent part:

        {¶3}    “A. We will pay reasonable expenses incurred by the insured for

necessary medical and funeral services because of bodily injury: 1) caused by an auto

accident; and 2) sustained by an insured.

        {¶4}    “* * *

        {¶5}    “C. ‘Reasonable’ as used in this part means: expenses that are consistent

with the usual charges of the majority of similar medical providers in the geographic

area in which the expenses were incurred for the specific medical service.

        {¶6}    “D. ‘Necessary’ as used in this part means: Services that are rendered by

a medical provider within the legally authorized scope of the provider’s practice and are

recognized within that practice as being appropriate treatment in achieving maximum

medical improvement of the bodily injury sustained in the accident.

        {¶7}    “B. We will pay under part B – Medical Payments coverage, the lesser of

1) reasonable expenses incurred by the insured for necessary medical and funeral

services because of bodily injury; or 2) an negotiated reduced rate accepted by a

medical provider.
Stark County App. Case No. 2010CA00339                                                 3


       {¶8}   “Part E – Duties after an accident or loss. B. A person seeking coverage

must: 5. Permit us to obtain outside review of medical treatment to determine if it (sic)

reasonable, customary and necessary.”

       {¶9}   After the accident, Grange sent appellee a letter dated January 19, 2009,

which stated that “Grange will review all submitted medical bills prior to payment to

assure that they are reasonable and necessary as required by the policy contract . . . .”

The letter included authorization to allow Grange to obtain appellee’s medical records

and bills.

       {¶10} Grange forwarded appellee’s bills to an unaffiliated third party doing

business as “Review Works.”      Review Works’ employees performed a review that

involved putting appellee’s medical expenses and billing codes into a computer

program. The program reduced the allowed medical bill amounts and printed out a

recommendation for payment that was returned to Grange.

       {¶11} Grange paid this reduced amount on appellee’s bills, and appellee’s

medical providers billed her for the balance due. When appellee asked Grange to pay

the balance, they sent her a letter dated March 26, 2009, which provided in pertinent

part, “[Y]our personal auto policy provides benefits for reasonable and necessary

medical expenses incurred because of bodily injury caused by an accident. We review

all medical bills to insure that the treatment and charges meet this criteria. Our review

indicates that not all of the treatment or charges met these requirements. . .”   Grange

advised appellee that she was liable for the remaining balance due.

       {¶12} Appellee filed a complaint seeking class action status, alleging that

Grange engaged in a company-wide policy of systematically underpaying medical
Stark County App. Case No. 2010CA00339                                                 4


payment coverage claims in violation of its own insurance policies and representations

to their insureds; Grange breached its contract with members of Class 2 and Class 3 by

charging them for medical payments coverage that was not provided; Grange breached

its contracts with members of Class 2 and Class 3 by failing to make medical payments

as required under its contracts of insurance; Grange acted fraudulently, inducing the

members of both classes to purchase policies which included medical payment

coverage which it did not intend to provide; Grange acted in bad faith in charging the

members of both classes for medical coverage it did not provide and did not intend to

provide and in failing to properly evaluate and pay medical payment claims presented

by members of both classes, and Grange’s claims regarding members of both classes

render it liable for punitive damages.

       {¶13} The classes were defined by appellee as follows:

       {¶14} “Class 2: All Ohio residents who made medical payment claims under

policies of automobile insurance coverage purchased from Grange Mutual Casualty

Company on which Grange made a payment that was reduced pursuant to the terms of

the medical payments provision of the policy following submission of the Claim to

Review Works, an assumed name of LaHousse-Barlett Disability Management, Inc., for

which medical payment limits under the applicable policy were not exhausted.

       {¶15} “Class 3: All Ohio residents, from April 1, 2003, who made medical

payment claims on policies of automobile insurance coverage purchased from Grange

Mutual Casualty Company, on which Grange submitted those claims for review by an

unaffiliated third party.”

       {¶16} Proposed Narrowed and/or Clarified Class Definitions, October 15, 2010.
Stark County App. Case No. 2010CA00339                                                      5


       {¶17} The trial court certified both Class 2 and Class 3. Grange assigns three

errors on appeal:

       {¶18} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT PLAINTIFF MET

THE TYPICALITY REQUIREMENTS FOR CLASS CERTIFICATION UNDER CIVIL

RULE 23(A)(3).

       {¶19} “II. THE TRIAL COURT ERRED WHEN IT FOUND THAT PLAINTIFF

MET THE INCOMPATIBILITY AND SUBSTANTIAL IMPAIRMENT REQUIREMENTS

FOR CLASS CERTIFICATION UNDER CIVIL RULE 23(B)(1).

       {¶20} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT PLAINTIFF

MET THE PREDOMINANCE AND SUPERIORITY REQUIREMENTS FOR CLASS

CERTIFICATION UNDER CIVIL RULE 23(B)(3).”

       {¶21} All three assignments of error pertain to the certification of the class and

therefore are reviewed within the same legal framework.

       {¶22} An order determining class certification constitutes a final appealable

order pursuant to R.C. 2505.02(B)(5). See, e.g., Blumenthal v. Medina Supply Co.

(2000), 139 Ohio App.3d 283, 743 N.E.2d 923. Civ.R. 23 provides the framework for the

prosecution of class actions lawsuits in Ohio courts:

       {¶23} “(A) Prerequisites to a class action. One or more members of a class

may sue or be sued as representative parties on behalf of all only if (1) the class is so

numerous that joinder of all members is impracticable, (2) there are questions of law or

fact common to the class, (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4) the representative parties will fairly

and adequately protect the interests of the class.
Stark County App. Case No. 2010CA00339                                                     6


       {¶24} “(B) Class actions maintainable. An action may be maintained as a

class action if the prerequisites of subdivision (A) are satisfied, and in addition:

       {¶25} “(1) the prosecution of separate actions by or against individual members

of the class would create a risk of

       {¶26} “(a) inconsistent or varying adjudications with respect to individual

members of the class which would establish incompatible standards of conduct for the

party opposing the class; or

       {¶27} “(b) adjudications with respect to individual members of the class which

would as a practical matter be dispositive of the interests of the other members not

parties to the adjudications or substantially impair or impede their ability to protect their

interests; or

       {¶28} “(2) the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole; or

       {¶29} “(3) the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for the fair and

efficient adjudication of the controversy. The matters pertinent to the findings include:

(a) the interest of members of the class in individually controlling the prosecution or

defense of separate actions; (b) the extent and nature of any litigation concerning the

controversy already commenced by or against members of the class; (c) the desirability

or undesirability of concentrating the litigation of the claims in the particular forum; (d)

the difficulties likely to be encountered in the management of a class action.”
Stark County App. Case No. 2010CA00339                                                     7


        {¶30} In order for a case to be certified as a class action, the trial court must

make seven affirmative findings as to the requirements of Civ.R. 23. Warner v. Waste

Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091, paragraph one of the syllabus.

The following seven requirements must be satisfied: (1) an identifiable class must exist

and the definition of the class must be unambiguous; (2) the named representatives

must be members of the class; (3) the class must be so numerous that joinder of all

members is impracticable; (4) there must be questions of law or fact common to the

class; (5) the claims or defenses of the representative parties must be typical of the

claims or defenses of the class; (6) the representative parties must fairly and adequately

protect the interests of the class; and (7) one of the three Civ.R. 23(B) requirements

must be met. Id., citing Civ.R. 23(A) and (B).

        {¶31} A trial court must carefully apply the class action requirements and

conduct a rigorous analysis into whether the prerequisites of Civ.R. 23 have been

satisfied. Hamilton v. Ohio Sav. Bank (1998), 82 Ohio St.3d 67, 70, 694 N.E.2d 442.

The Ohio Supreme Court in Hamilton suggested, but did not mandate, that trial courts

make separate written findings as to each of the seven class action requirements under

Civ.R. 23, and specify their reasoning as to each finding. Id. at 71, 694 N.E.2d 442.

However, a trial court has broad discretion in determining whether a class action may

be maintained. Planned Parenthood Ass'n of Cincinnati, Inc. v. Project Jericho (1990),

52 Ohio St.3d 56, 62, 556 N.E.2d 157. Abuse of discretion connotes more than an error

of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140.
Stark County App. Case No. 2010CA00339                                                    8


       {¶32} In interpreting and applying Civ. R. 23, the Ohio Supreme Court has held

that because the Ohio Rule is virtually identical to the federal rule governing class

actions, federal authority is an appropriate aid to use in interpreting the Ohio rule.

Marks v. C.P. Chemical Co. (1987), 31 Ohio St. 3d 200, 201.

                                                 I

       {¶33} Grange first argues that the court erred in finding that appellee fulfilled the

typicality requirement of Civ. R. 23(A)(3).

       {¶34} Typicality involves consideration of the similarity between proposed class

plaintiff’s legal and remedial theories and those of the persons he or she purports to

represent. Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 426 (5th Cir.1997). The

class representative “must be part of the class and possess the same interest and suffer

the same injury as the class members.” Gen. Tel. Co.v. Falcon, 457 U.S. 147, 156, 102

S.Ct. 2364 (1982). Accordingly, the party seeking to represent the class must be able to

prove actual injury to herself, as opposed to other members of the class. O'Shea v.

Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Although it is not

necessary that all class members suffer the same injury as the class representatives,

where a purported class representative is subject to a unique defense that cannot be

asserted against other members of the class, typicality may be lacking. Rosario v.

Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992); Gary Plastic Packaging Corp. v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2nd Cir.1990).

       {¶35} Grange relies on Ostrof v. State Farm Mut. Auto. Ins. Co. (D. Md. 2001),

200 F.R.D. 521 in support of its proposition that typicality is lacking in the instant case.

In Ostrof, the plaintiffs sought class certification of their claim that State Farm had
Stark County App. Case No. 2010CA00339                                                   9


improperly denied reimbursement for medical bills and lost income under the personal

injury protection (PIP) provision of their insurance policies. As Grange did in the instant

case, State Farm used computer reviews to check the claimed costs against the usual

and customary costs in the area where the service was rendered.             The computer

flagged any charges above the 85th percentile of charges for the same service in the

area where it was rendered and then conditionally reduced the fee to the maximum

customary charge.     State Farm also used “medical records reviews” consisting of

reviews by firms of medical professionals with past experience in the evaluation of

personal injury claims, who considered the medical propriety of the treatment to cross-

check against the possibility of unnecessary services being provided by medical

providers.

      {¶36} The plaintiffs in Orstrof accused State Farm of deceptive and unfair

practices through the PIP review process. They sought to certify a class including all

individuals who had PIP and/or medical payments claims reviewed based on the

computerized fee review schedules or medical record reviews and who received or

were tendered an amount of benefits less than the PIP policy limits and the amount

claimed.

      {¶37} The Orstrof court found that the class lacked typicality:

      {¶38} “The Court has already referred to proposed Class Plaintiff Ostrof's

situation. He, it appears, is either not a member of the proposed class or may be subject

to a unique defense. It is uncontested that he has never had to pay his health care

providers the amounts that were denied him. No suits for the fees are pending against

him nor, apparently, are any such suits imminent. See McGill v. State. Farm Mut. Auto.
Stark County App. Case No. 2010CA00339                                                   10

Ins. Co., 207 Mich.App. 402, 526 N.W.2d 12, 14 (1994)(finding proposed class plaintiff's

claims atypical: “[There is] no evidence that Plaintiffs have suffered injury as a result of

Defendants' partial payment of their medical bills; nor is any injury threatened.”)

       {¶39} “Defenses unique to Plaintiff Corbitt have also been noted. Since she was

involved in two automobile accidents only eight days apart, she would need to prove

which accident or incident gave rise to what quantum of injury. Furthermore, at least

colorably, it appears that she may have submitted duplicate bills to State Farm asking

for payment for a single treatment rendered in consequence of the two accidents and

possibly collected twice for the same lost wages. Additionally, since her PIP claim was

submitted under her father's insurance policy, it is clear that she could not assert a

breach of contract claim nor could she have been the victim of any fraudulent

misrepresentation regarding the extent of State Farm's PIP coverage.” Id. at 529.

       {¶40} The trial court in the instant case distinguished Orstrof:

       {¶41} “However, the Ostrof case appears distinguishable from the case

subjudice (sic). While denying certification, the Ostrof court was concerned as to the

numerous individual inquires which would be required in the lawsuit, including: 1)

‘whether the individual claim incurred ‘additional losses and damages in pursuit of

personal injury protection provision damages; and 2) whether the individual claim had

suffered ‘consequential damages’ due to ‘emotional stress’, ‘concern and worry’.

However, the Court does not see these types of obstructions in the case here. The

Court is more convinced that the facts alleged by Wolfe and established thus far

through depositions meets the requirements set forth under 23(A) for numerosity,
Stark County App. Case No. 2010CA00339                                                   11


questions of law or fact common to the class, and the claims or defense are typical of

the class.” Judgment Entry, November 17, 2010.

       {¶42} We find that the trial court did not abuse its discretion in finding appellee’s

claims were typical of Class 2. Unlike Orstrof, it does not appear that she is subject to a

unique claim or defense that makes her claim atypical of those of other persons who

had their claims reduced following submission of their claim to Review Works.

However, we do find an abuse of discretion in finding appellee’s claim met the typicality

requirement as to Class 3. Class 3 includes anyone who made a medical claim

pursuant to a Grange automobile insurance policy on which Grange submitted those

claims for review by an unaffiliated third party. This class by definition will include

people who have not suffered the damage suffered by Wolfe – or any damage at all -

because their claims were not reduced by the review process.

       {¶43} The first assignment of error is overruled as to Class 2 but sustained as to

Class 3.

                                                  II

       {¶44} Grange next argues that the court erred in finding that appellee met the

incompatibility and substantial impairment requirements pursuant to Civ. R. 23(B)(1):

       {¶45} “(B) Class actions maintainable. An action may be maintained as a

class action if the prerequisites of subdivision (A) are satisfied, and in addition:

       {¶46} “(1) the prosecution of separate actions by or against individual members

of the class would create a risk of
Stark County App. Case No. 2010CA00339                                                    12


        {¶47} “(a) inconsistent or varying adjudications with respect to individual

members of the class which would establish incompatible standards of conduct for the

party opposing the class; or

        {¶48} “(b) adjudications with respect to individual members of the class which

would as a practical matter be dispositive of the interests of the other members not

parties to the adjudications or substantially impair or impede their ability to protect their

interests. . .”

        {¶49} Because we have found that the court erred in finding appellee met the

typicality requirement as to Class 3, this assignment of error is moot as to Class 3 and

will be addressed only as to Class 2.

        {¶50} Pursuant to Civ. R. 23(B)(1)(a), certification is permissible if separate

actions could lead to incompatible standards of conduct. Warner v. Waste Mgmt., Inc.

(1988), 36 Ohio St.3d 91, 95, 521 N.E.2d 1091. In the instant case, the court did not

abuse its discretion in finding that separate actions could lead to incompatible standards

of conduct. At issue is the propriety of the referral of medical claims to Review Works

where they are allegedly run through a standardized computer program. Appellee’s

action alleges breach of contract, fraud and bad faith in the manner in which medical

payments claims are reviewed by Grange. Separate actions risk different triers of fact

finding that all of the procedures employed by Grange were improper, some part of the

procedure was improper but another part was not, or all of the review procedures were

permissible under the contract the insured entered into with Grange. Such varying

results could lead to incompatible standards of conduct for Grange to use in the method

in which review procedures are undertaken.
Stark County App. Case No. 2010CA00339                                                    13


       {¶51} Because the findings in subsection (B) are in the disjunctive, the court

need only find one in order to certify the class. Warner, supra. Because we have found

no abuse of discretion the court’s finding under subsection (B)(1)(a), we need not reach

the issue of whether the court erred in finding certification proper under Civ. R.

23(B)(1)(b).

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

                                                  III

       {¶53} In the final assignment of error, Grange argues that the court erred in

finding certification proper under Civ. R. 23(B)(3). The trial court did not specifically

refer to Civ. R. 23(B)(3), but in the court’s opinion, the court does cite to the language of

Civ. R. 23(B)(3), which provides in pertinent part:

       {¶54} “An action may be maintained as a class action if the prerequisites of

subdivision (A) are satisfied, and in addition:

       {¶55} “(3) the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only individual

members, and that a class action is superior to other available methods for the fair and

efficient adjudication of the controversy. The matters pertinent to the findings include:

(a) the interest of members of the class in individually controlling the prosecution or

defense of separate actions; (b) the extent and nature of any litigation concerning the

controversy already commenced by or against members of the class; (c) the desirability

or undesirability of concentrating the litigation of the claims in the particular forum; (d)

the difficulties likely to be encountered in the management of a class action.”
Stark County App. Case No. 2010CA00339                                                  14


       {¶56} Because we have found that the court erred in finding appellee met the

typicality requirement as to Class 3, this assignment of error is moot as to Class 3 and

will be addressed only as to Class 2.

       {¶57} The Ohio Supreme Court has found that cases involving a common

scheme or standardized practice are particularly suited for certification under Civ. R.

23(B)(3) because the common issues predominate over those affecting individual

members:

       {¶58} “It is now well established that ‘a claim will meet the predominance

requirement when there exists generalized evidence which proves or disproves an

element on a simultaneous, class-wide basis, since such proof obviates the need to

examine each class member's individual position.’ Lockwood Motors, Inc. v. Gen.

Motors Corp. (D.Minn.1995), 162 F.R.D. 569, 580.

       {¶59} “As explained in the 1966 Advisory Committee Notes to Fed.R.Civ.P.

23(b)(3):

       {¶60} “`Subdivision (b)(3) encompasses those cases in which a class action

would achieve economies of time, effort, and expense, and promote uniformity of

decision as to persons similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results. * * *

       {¶61} “`The court is required to find, as a condition of holding that a class action

may be maintained under this subdivision, that the questions common to the class

predominate over the questions affecting individual members. It is only where this

predominance exists that economies can be achieved by means of the class-action

device. In this view, a fraud perpetrated on numerous persons by the use of similar
Stark County App. Case No. 2010CA00339                                                  15

misrepresentations may be an appealing situation for a class action. * * * On the other

hand, although having some common core, a fraud case may be unsuited for treatment

as a class action if there was material variation in the representations made or in the

kinds or degrees of reliance by the persons to whom they were addressed.’

       {¶62} “Courts generally find that the existence of common misrepresentations

obviates the need to elicit individual testimony as to each element of a fraud or

misrepresentation claim, especially where written misrepresentations or omissions are

involved. They recognize that when a common fraud is perpetrated on a class of

persons, those persons should be able to pursue an avenue of proof that does not focus

on questions affecting only individual members. If a fraud was accomplished on a

common basis, there is no valid reason why those affected should be foreclosed from

proving it on that basis.” Cope v. Metropolitan Life Insurance Company (1998), 82 Ohio

St. 3d 426, 249-430, internal citations omitted.

       {¶63} The Ohio Supreme Court went on to note that a wide variety of claims

may be established by common proof in cases involving similar form documents or the

use of standardized procedures and practices. Id., citing Hamilton v. Ohio Savings Bank

(1998), 81 Ohio St. 3d 67.

       {¶64} In the instant case, the trial court did not err in finding predominance as to

Class 2. The claims are based on a common pattern of review procedures employed by

Grange.   The plaintiffs allege that they were harmed by the use of a standardized

practice and procedure, and the same issues thus predominate throughout the class

and will require common proof.
Stark County App. Case No. 2010CA00339                                                   16


       {¶65} We further find the trial court did not err in finding a class action to be

superior to other available methods for the fair and efficient adjudication of the

controversy as to Class 2. As to the considerations enumerated in Civ. R. 23(B)(3), the

court specifically found:

       {¶66} “Finally, there appears to be minimal interest in the class members

controlling the litigation since individual claims are to be relatively small. Wolfe alleges

that she is unaware of any similar litigation by members of Class II and III against

Grange. More importantly, the Court sees the class certification as a superior method

for resolving these claims rather than a ‘voluminous’ number of separate trials that could

lead to inconsistent results, and the management of this action does not outweigh the

potential benefits to the class members in a judicial system as a whole. The members

of the class will save on court costs, attorneys fees, and the class certification will

provide for judicial economy of the issues.”

       {¶67} We find no abuse of discretion in this finding.

       {¶68} The third assignment of error is overruled.
Stark County App. Case No. 2010CA00339                                           17


      {¶69} The judgment of the Stark County Common Pleas Court certifying Class 2

is affirmed. The judgment of the court certifying Class 3 is reversed. This cause is

remanded to that court for further proceedings according to law.




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/r0728
[Cite as Wolfe v. Grange Indemn. Ins. Co., 2012-Ohio-598.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


TIAN WOLFE                                            :
                                                      :
                            Plaintiff-Appellee        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
GRANGE INDEMNITY INSURANCE
COMPANY, et al.,                                      :
                                                      :
                     Defendants-Appellants            :       CASE NO. 2010CA00339




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed in part, and reversed

and remanded in part. Costs assessed 50% to appellee and 50% to appellant.




                                                          _________________________________


                                                          _________________________________


                                                          _________________________________

                                                                       JUDGES
