[Cite as Marietta College v. Valiante, 2013-Ohio-5405.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                     WASHINGTON COUNTY


MARIETTA COLLEGE,                                  :

        Plaintiff-Appellee,                        :      Case No. 13CA12

        vs.                                        :

ERIK VALIANTE,                                     :      DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                       :

_________________________________________________________________

                                             APPEARANCES:

COUNSEL FOR APPELLANT:                     David C. Perduk, 3603 Darrow Road, Stow, Ohio 44224

COUNSEL FOR APPELLEE:         Michael J. Lubes, 526 Superior Avenue East, Suite 630,
                              Cleveland, Ohio 44114
_________________________________________________________________

CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-25-13
ABELE, J.

        {¶ 1} This is an appeal from a Marietta Municipal Court judgment in favor of Marietta

College, plaintiff below and appellee herein. Erik Valiante, defendant below and appellant

herein, assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
                 MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S
                 CLAIMS.”
[Cite as Marietta College v. Valiante, 2013-Ohio-5405.]
                 SECOND ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED BY GRANTING PLAINTIFF’S
                 MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S
                 CLAIMS.”

                 THIRD ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED BY GRANTING PLAINTIFF’S
                 MOTION FOR SUMMARY JUDGMENT ON DEFENDANT’S
                 CLAIMS.”

                 FOURTH ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED BY NOT APPLYING THE
                 AFFIRMATIVE DEFENSES OF WAIVER AND ESTOPPEL AS
                 A BAR TO ALL OF APPELLEE’S CLAIMS.”

        {¶ 2} On August 10, 2005, Laura Valiante signed an “Application and Master

Promissory Note” under the Federal Direct PLUS Loan William D. Ford Federal Direct Loan

Program. The promissory note listed Marietta College as the school and Erik J. Valiante as the

student.

        {¶ 3} On September 6, 2005, appellee’s Office of Student Financial Services (SFS)

advised appellee’s Office of Student Accounts (SA) that a PLUS application had been approved

on appellant’s behalf. Thus, appellee credited appellant’s account in the amount of $4,312 for

the unrealized PLUS loan proceeds.

        {¶ 4} In early November 2005, the United States Department of Education informed

SFS that it had refused to “book” Laura’s loan because she signed the note in pencil. SFS never

had a loan fail to “book” and, thus, did not have a policy in place for PLUS loans that failed to

“book.”
WASHINGTON, 13CA12                                                                                   3

       {¶ 5} On November 17, 2005, SFS sent another promissory note to Laura and requested

her to complete it in ink. On February 7, 2006, appellee credited appellant’s account in the

amount of $4,312 for the PLUS loan proceeds.

       {¶ 6} On May 20, 2006, appellant received his degree from appellee. When appellant

received his degree, SFS had not informed SA that Laura’s PLUS loan had failed to book. SA is

responsible for ensuring that a student has fulfilled all financial obligations before the student

receives a degree. On June 28, 2006, appellee’s records showed that appellant’s student account

did not have a remaining balance.

       {¶ 7} On July 12, 2006, and again on April 11, 2007, SFS sent another promissory note

to Laura and requested her to complete it in ink. On May 24, 2007, SFS sent another request to

Laura that she complete a promissory note using ink. This letter informed Laura that if appellee

did not receive a properly signed promissory note by June 1, 2007, it would cancel the loan and

reverse the PLUS loan entry from appellant’s tuition account.

       {¶ 8} On July 5, 2007, SFS informed SA that the Department of Education had rejected

Laura’s application. On October 25, 2007, appellee charged appellant’s account in the amount

of $8,844 for “Tuition–F105-Sp06 Tuition.”

       {¶ 9} On April 16, 2012, appellee filed a complaint against Erik Valiante and Laura

Valiante for breach of contract, breach of implied contract, and unjust enrichment.1 Appellant

denied liability and filed a counterclaim. Appellant’s counterclaim alleged that appellee

negligently or intentionally misrepresented his account status when he graduated in May 2006.

       1
      On August 27, 1012, the court dismissed count four of
appellee’s complaint against Laura.
WASHINGTON, 13CA12                                                                                  4

Appellant asserted that in May 2006, appellee issued a “paid in full” “zero balance” account to

appellant.

       {¶ 10} Both parties requested summary judgment. Appellant asserted that he is entitled

to judgment as a matter of law because the doctrines of waiver and estoppel precluded appellee

from holding him liable for unpaid tuition. Appellant argued that by conferring his degree and

issuing him a zero account balance, appellee waived its right to collect the tuition charged to

appellant’s student account. Appellant further asserted that appellee is estopped from collecting

the unpaid tuition from him. To support his argument, appellant relied upon appellee’s billing

procedures as outlined in its 2005-2006 Undergraduate Program Catalog. The catalog states:

“The College will not issue transcripts or confer the student’s degree until the student satisfies all

financial obligations to the college.” Appellant contended that appellee “showed it had no

intention of holding [him] to any further financial obligations, otherwise it would not have issued

his diploma.”

       {¶ 11} On March 1, 2013, the trial court entered summary judgment in appellee’s favor

and against appellant regarding his counterclaim. The court entered a $8,844 judgment in

appellee’s favor. This appeal followed.

       {¶ 12} Although appellant raises four assignments of error, he does not argue them

separately in his brief. App.R. 16(A)(7) requires an appellant to separately argue each

assignment of error and App.R. 12(A)(2) authorizes us to disregard any assignment of error that

an appellant fails to separately argue. Thus, we would be within our authority to summarily

overrule appellant’s assignments of error and affirm the trial court’s judgment. E.g., Mortgage

Electronic Registration Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, 829 N.E.2d 326,
WASHINGTON, 13CA12                                                                                  5

¶22. In the interests of justice, however, we will review the assignments of error to the extent

that appellant specifically addresses them.

       {¶ 13} Appellant’s four assignments of error challenge the propriety of the trial court’s

summary judgment. Appellant does not, however, specifically argue each assigned error.

Instead, appellant posits three reasons why the trial court wrongly entered summary judgment in

appellee’s favor and wrongly denied appellant’s summary judgment motion.

       {¶ 14} Appellant first asserts that the trial court erred by failing to conclude that the

doctrines of waiver and estoppel preclude appellee from seeking the unpaid tuition. Appellant

contends that appellee is estopped from seeking payment because it chose to accept payment

from a third-party payor, issued a zero balance account to appellant, and conferred his degree.

Appellant additionally argues that by issuing him a zero account balance and conferring his

degree, appellee manifested its belief that appellant had fulfilled all financial obligations and thus

waived its right to collect the unpaid tuition from appellant.

       {¶ 15} Appellant next argues that he “relied to his detriment” upon appellee’s conduct in

issuing him a zero account balance and conferring his degree. Appellant claims that he suffered

the following injuries due to appellee’s actions: (1) he was unable to help his mother properly

complete a PLUS loan application so that his tuition would be funded through a low-cost student

loan upon which his mother would be liable; (2) he was unable to seek other means of financial

support; (3) he was not given the chance to withdraw until he could secure the funds to pay the

tuition; (4) appellee is seeking payment from him even though his mother had agreed to pay it;

and (5) he must now pay the tuition due without the ability to finance it through a low-cost

student loan.
WASHINGTON, 13CA12                                                                                   6

       {¶ 16} Appellant further argues that the facts fail to show that he has been unjustly

enriched. Appellant asserts that because appellee has other legal remedies against other parties,

appellant is not unjustly enriched.

       {¶ 17} Appellant has not raised any specific arguments that appellee failed to

demonstrate the absence of a material fact regarding the elements of its claims for breach of

contract or its action on an account, but instead, limits his argument to whether the doctrines of

waiver and estoppel bar those claims. Appellant also has not raised any argument regarding the

merits of his claim for negligent or intentional misrepresentation. We therefore do not address

these claims.

                                                 A

                             SUMMARY JUDGMENT STANDARD

       {¶ 18} Appellate courts conduct a de novo review of trial court summary judgment

decisions. E.g., Troyer v. Janis, 132 Ohio St.3d 229, 2012–Ohio–2406, 971 N.E.2d 862, ¶6;

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an

appellate court must independently review the record to determine if summary judgment is

appropriate and need not defer to the trial court’s decision. E.g., Brown v. Scioto Bd. of

Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio

App.3d 409, 411–12, 599 N.E.2d 786 (1991). To determine whether a trial court properly

granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary

judgment standard, as well as the applicable law. Civ. R. 56(C) provides in relevant part:

              * * * Summary judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, written admissions, affidavits, transcripts
       of evidence in the pending case, and written stipulations of fact, if any, timely
WASHINGTON, 13CA12                                                                                7

       filed in the action, show that there is no genuine issue as to any material fact and
       that the moving party is entitled to judgment as a matter of law. No evidence or
       stipulation may be considered except as stated in this rule. A summary judgment
       shall not be rendered unless it appears from the evidence or stipulation, and only
       from the evidence or stipulation, that reasonable minds can come to but one
       conclusion and that conclusion is adverse to the party against whom the motion
       for summary judgment is made, that party being entitled to have the evidence or
       stipulation construed most strongly in the party’s favor.

       {¶ 19} Thus, pursuant to Civ.R. 56, a trial court may not grant summary judgment unless

the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be

litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable

minds can come to but one conclusion, and after viewing such evidence most strongly in favor of

the nonmoving party, that conclusion is adverse to the party against whom the motion for

summary judgment is made. E.g., Smith v. McBride, 130 Ohio St.3d 51, 2011–Ohio–4674, 955

N.E.2d 954, ¶12; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39,

2011–Ohio–2266, 950 N.E.2d 157, ¶24; Vahila v. Hall, 77 Ohio St.3d 421, 429–30, 674 N.E.2d

1164 (1997).

                                                 B

                                   ESTOPPEL AND WAIVER

       {¶ 20} Appellant first argues that the trial court wrongly determined that no genuine

issues of material fact remain regarding whether the doctrines of estoppel and waiver preclude

appellee’s claims for unpaid tuition. Appellant asserts that because appellee informed him that

he had a zero account balance and conferred his degree, appellee is estopped from seeking the

unpaid tuition. Appellant also argues that by conferring his degree, appellee manifested an
WASHINGTON, 13CA12                                                                                   8

intent to waive the provision in the student handbook that it would not “confer the student’s

degree until the student satisfies all financial obligations to the college.”

                                                   1

                                             ESTOPPEL

        {¶ 21} As a general rule, “estoppel” is “a defensive theory barring parties from asserting

a claim or a defense where their representations have induced action or the forbearance of a

definite and substantial character, and injustice can be avoided only by its enforcement.” 42

Ohio Jurisprudence 3d, Estoppel and Waiver, Section 1 (2011).

        “The concept of estoppel has its roots in ethical premises and is the legal

        expression of normative policies that equity jurisprudence has fostered and

        developed over the centuries. In essence, the expression of estoppel in the form

        of a rule is that one party will not be permitted to deny that which, by his words,

        his acts, or his silence (when there was an obligation to speak), he has induced a

        second party reasonably and in good faith to assume and rely upon to that party’s

        prejudice or pecuniary disadvantage.”

First Federal Sav. & Loan Ass’n of Toledo v. Perry’s Landing, Inc., 11 Ohio App.3d 135, 145,

463 N.E.2d 636 (6th Dist. 1983) (citations omitted). Thus, “‘[a]s a general rule, a party will be

concluded from denying his own acts or admissions, which were expressly designed to influence

the conduct of another, and did so influence it, and when such denial will operate to the injury of

the latter.’” Doe v. Archdiocese of Cincinnati, 116 Ohio St.3d 538, 2008-Ohio-67, 880 N.E.2d

892 (2008) ¶7, quoting McAfferty v. Conover’s Lessee, 7 Ohio St. 99, 105 (1857); accord State

ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71 Ohio St.3d 26, 34, 641 N.E.2d 188
WASHINGTON, 13CA12                                                                                  9

(1994) (“Equitable estoppel prevents relief when one party induces another to believe certain

facts exist and the other party changes his position in reasonable reliance on those facts to his

detriment.”); In re Estate of Basmajian, 142 Ohio St. 483, 494, 52 N.E.2d 985 (1944) (“An

estoppel arises where one is concerned in or does an act which in equity and good conscience

will preclude him from averring anything to the contrary, as where another has been innocently

misled into some injurious change of position.”); Russell v. Fourth Natl. Bank, 102 Ohio St. 248,

269–270, 131 N.E. 726 (1921) (“An estoppel arises when one is concerned in or does an act

which in equity will preclude him from averring anything to the contrary, as where another has

been innocently misled into some injurious change of position.”).

       {¶ 22} “Implicit” in the definition of estoppel “is the principle that ‘[t]he purpose of

equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice.’”

Doe v. Archdiocese of Cincinnati at ¶7, quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio

St.3d 143, 145, 555 N.E.2d 630 (1990). The doctrine of estoppel “has been formulated

primarily to prevent results contrary to good conscience and fair dealing.” 42 Ohio

Jurisprudence 3d, supra, Estoppel and Waiver, Section 2. Thus, “[w]hen properly applied, it

operates upon the highest principles of morality and recommends itself to the common in a

particular case * * *. It is a doctrine, therefore, when properly understood and applied, that

concludes the truth in order to prevent fraud and falsehood or its equivalent in effect, and impose

silence on the party only when in conscience and honesty he should not be allowed to speak.”

Id.

       {¶ 23} The party asserting estoppel as a defense generally must establish four elements:

“(1) a factual misrepresentation; (2) that is misleading; (3) that induced actual reliance, which
WASHINGTON, 13CA12                                                                            10

was both reasonable and in good faith; and (4) that caused detriment to the relying party.”

Mark-It Place Foods, Inc. v. New Plan Excel Realty Trust, 156 Ohio App.3d 65, 2004-Ohio-411,

804 N.E.2d 979 (4th Dist.), ¶50; Machnics v. Sloe, 11th Dist. Geauga No. 2004-G-2554,

2005-Ohio-935, ¶68 (stating that “[t]he party raising the defense bears the burden of

demonstrating its applicability”). In First Federal Sav., 11 Ohio App.3d at 145, the court

explained these four elements as follows:

               “First, there must be something in the nature of a representation by words,

       acts, or silence. The representation must be factual, not promissory, or else the

       elements and analysis appropriate to a promissory estoppel context may apply.

       The facts underlying the representation must be known to the party at the time he

       makes it, or at least the circumstances must be such that he is necessarily

       chargeable with knowledge of them. In addition, if silence is involved, it

       amounts to a representation only if the circumstances were such that the law

       recognized a duty to speak. Second, the representation must communicate some

       fact or state of affairs in a misleading way. Third, the representation must induce

       actual reliance by the second party, and such reliance must be reasonable under

       the circumstances and made in good faith. Fourth, the relying party would suffer

       prejudice or pecuniary disadvantage if the party whose representation was relied

       upon were not estopped or precluded from asserting an otherwise valid right in

       contradiction to his earlier representation.”

       {¶ 24} Moreover, when determining whether the estoppel doctrine applies, a court must

consider “the principle that ‘[t]he purpose of equitable estoppel is to prevent actual or
WASHINGTON, 13CA12                                                                                  11

constructive fraud and to promote the ends of justice.’” Doe v. Archdiocese of Cincinnati,

supra. For this reason, “[n]o single formulation of the equitable doctrine of estoppel is

applicable to every case, and in applying estoppel, each case must be considered on its own

facts.” First Federal Sav., 11 Ohio App.3d at 144; accord Egan v. National Distillers &

Chemical Corp., 25 Ohio St.3d 176, 179, 495 N.E.2d 904 (1986).

       {¶ 25} In the case at bar, we do not believe that appellant established the absence of a

material fact as to whether appellee is estopped from seeking the unpaid tuition. Prohibiting

appellee from collecting the unpaid tuition would not “prevent actual or constructive fraud” or

“promote the ends of justice.” Doe at 7. Indeed, permitting appellant to retain the benefits of

his degree without fully paying for it would directly contravene the ends of justice. RWS

Building Co. V. Freeman, 4th Dist. Lawrence No. 04CA40, 2005-Ohio-6665, ¶19, quoting

Buydden v. Mitchell, 102 N.E.2d 21, 60 Ohio Law Abs. 493 (1915) (stating that “‘a party cannot

be permitted to retain the benefits of a contract and at the same time repudiate it or reject its

burdens’”). Because appellant cannot show that the ends of justice would be promoted by

prohibiting appellee from recovering the unpaid tuition, he cannot establish that, as a matter of

law, appellee is estopped from seeking the unpaid tuition from him.

       {¶ 26} Furthermore, because appellant cannot establish that applying the estoppel

doctrine would prevent fraud or promote the ends of justice, whether he suffered a detriment as a

result of appellee’s conduct is a moot question. Thus, we need not address it. See App.R.

12(A)(1)(c).

                                                  2

                                              WAIVER
WASHINGTON, 13CA12                                                                                  12

       {¶ 27} Appellant also argues that appellee waived its right to seek tuition from him.

Appellant contends that appellee’s conduct in conferring his degree, when appellant had not fully

satisfied all financial obligations, constituted an implied waiver of the contract provision that

states: “The College will not issue transcripts or confer the student’s degree until the student

satisfies all financial obligations to the college.” He further argues that appellee’s inconsistent

conduct demonstrates that the doctrine of waiver by estoppel applies.

       {¶ 28} “‘A waiver is a voluntary relinquishment of a known right. It may be made by

express words or by conduct which renders impossible a performance by the other party, or

which seems to dispense with complete performance at a time when the obligor might fully

perform.’” White Co. v. Canton Transp. Co., 131 Ohio St. 190, 198, 2 N.E.2d 501 (1936),

quoting List & Son Co. v. Chase, 80 Ohio St. 42, 49, 88 N.E. 120, 17 Ann.Cas. 61. Thus, a

waiver must be “intentional, with knowledge of the facts and of the party’s rights.” List, 80

Ohio St. at 51. Alternatively, a waiver may be “implied from conduct that amounts to estoppel.”

 Id.

       {¶ 29} Conduct amounts to a “waiver by estoppel” “when the acts and conduct of a party

are inconsistent with an intent to claim a right, and have been such as to mislead the other party

to his prejudice and thereby estop the party having the right from insisting upon it.” Mark–It

Place Foods, at ¶57. “Waiver by estoppel allows a party’s inconsistent conduct, rather than a

party’s intent, to establish a waiver of rights.” National City Bank v. Rini, 162 Ohio App.3d

662, 2005-Ohio-4041, 834 N.E.2d 836, ¶24 (11th Dist.).

       {¶ 30} In the case sub judice, we do not believe that appellant established the absence of

a material fact regarding whether appellee waived its right to seek the unpaid tuition from
WASHINGTON, 13CA12                                                                                   13

appellant. Appellant asserts that by issuing his diploma, appellee voluntarily relinquished its

right to hold appellant responsible for his outstanding financial obligations. Appellant points to

the student catalog provision that states: “The College will not issue transcripts or confer the

student’s degree until the student satisfies all financial obligations to the College.” Appellant

thus contends that by conferring his degree, appellee indicated and agreed that appellant had no

further financial obligations.

       {¶ 31} In the case sub judice, we believe that appellant’s waiver argument relies upon a

misinterpretation of the contract provision that “[t]he College will not issue transcripts or confer

the student’s degree until the student satisfies all financial obligations to the College.” We do

not agree that appellee’s conduct in conferring appellant’s degree, despite knowing that the

Department of Education had rejected his mother’s PLUS loan application, constituted an

intentional relinquishment of its right to seek unpaid tuition from appellant. The provision in

the student catalog does not state that conferring a degree relieves the student of all financial

obligations. The provision does not state that if appellee confers a student’s degree, then the

student necessarily fulfilled all financial obligations. The provision states that the college will

not confer a degree unless the student has fulfilled all financial obligations. The provision does

not absolutely prohibit the college from conferring a degree when a student has outstanding

financial obligations. In short, the provision does not mean that if the college confers a degree,

then the student necessarily fulfilled all financial obligations. Circumstances may arise, like in

the case sub judice, when the college may confer a degree, but be mistaken as to whether all

financial obligations have been fulfilled. Conferring a degree does not indicate that the college

waives its right to seek unpaid financial obligations, or that it promises not to pursue a student
WASHINGTON, 13CA12                                                                                 14

for outstanding financial obligations.

       {¶ 32} At the time appellee conferred appellant’s degree, SFS knew that the Department

of Education had rejected Laura’s PLUS loan application. SFS continued to ask Laura to

complete a new PLUS loan application up to and beyond appellant’s graduation. Thus, when

appellant received his degree, appellee apparently believed that Laura would ultimately complete

a PLUS loan application so that it would receive the funds to satisfy appellant’s remaining

financial obligation. After Laura failed numerous times to respond to appellee’s requests,

appellee decided to reverse the credit it had placed in appellant’s student account for the PLUS

loan proceeds that appellee had expected to receive. Appellee’s conduct in requesting Laura to

complete a new PLUS loan application shows that it did not intend to relinquish its right to

payment. While appellee’s conduct may demonstrate poor business practice, it does not

constitute a waiver of its right to seek monies due for appellant’s unpaid tuition.

       {¶ 33} Appellant also fails to show that a genuine issue of material fact remains

regarding whether appellee’s conduct constitutes a waiver by estoppel. As we explained above,

conferring appellant’s degree is not necessarily inconsistent with appellee’s current position that

appellant has outstanding financial obligations. The student catalog provision does not state that

a student is necessarily relieved of any further financial obligations once appellee confers the

degree. Thus, conferring a student’s degree is not necessarily inconsistent with a claim that the

student has outstanding financial obligations.

                                                 C

                                    UNJUST ENRICHMENT

       {¶ 34} Appellant additionally asserts that the trial court improperly awarded appellee
WASHINGTON, 13CA12                                                                               15

summary judgment because appellee failed to establish the absence of a genuine issue of material

fact regarding its unjust enrichment claim.

       {¶ 35} We observe, however, that appellant failed to raise this specific argument during

the summary judgment proceedings. “[F]ailure to timely advise a trial court of possible error, by

objection or otherwise, results in a waiver of the issue for purposes of appeal.” Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). In the case sub judice, at no point

during the trial court proceedings did appellant assert that appellee failed to prove the elements of

its claim. Instead, appellant relied solely upon the affirmative defenses of estoppel and waiver

when it sought summary judgment and when it defended against appellee’s summary judgment

motion. Therefore, because appellant did not raise an unjust enrichment argument during the

trial court proceedings, he has waived the right to raise it on appeal.

       {¶ 36} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s

four assignments of error and affirm the trial court’s judgment.

                                                                          JUDGMENT AFFIRMED.
[Cite as Marietta College v. Valiante, 2013-Ohio-5405.]
                                           JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of appellant the costs

herein taxed.

        The Court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this Court directing the Marietta

Municipal Court to carry this judgment into execution.

        A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

        McFarland, P.J. & Hoover, J.: Concur in Judgment & Opinion

                                                                 For the Court




                                                                  BY:
                                                 Peter B. Abele, Judge




                                        NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
