[Cite as Ross Cty. Bd. of Commrs. v. Roop, 2011-Ohio-1748.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    ROSS COUNTY

BOARD OF COUNTY                 :
COMMISSIONERS OF ROSS           : Case No. 10CA3161
COUNTY, OHIO,                   :
                                :
     Plaintiff-Appellee,        :
                                : Released: April 6, 2011
     vs.                        :
                                :
LEONARD M. ROOP, et al.,        : DECISION AND JUDGMENT
                                : ENTRY
     Defendants-Appellants.     :
_____________________________________________________________
                            APPEARANCES:

Leo J. Hall, Margulis, Gussler and Hall, Ashville, Ohio, for Appellants.

Matthew S. Schmidt1, Ross County Prosecutor, and Judith Heimerl Brown,
Ross County Assistant Prosecutor, Chillicothe, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a judgment by the Ross County Court of

Common Pleas issuing Appellee, Ross County Board of Commissioners, an

injunction requiring Appellants, Leonard Roop, et al., to remove a non-

residential structure located in the Indian Creek Floodway. On appeal,

Appellants contend that 1) it was error for the court to rule that R.C. 307.37,

as it existed when Appellants built their building, permitted a county having

1
  Since the filing of this appeal, Matthew S. Schmidt is now the Ross County Prosecuting Attorney rather
than Michael M. Ater.
Ross App. No. 10CA3161                                                           2


no county building code to pass floodplain regulations for participation in

the National Flood Insurance Program; 2) it was error for the court to rule

that, because the floodplain regulations in question were published before

their adoption, it was irrelevant to the issue of constructive notice that the

regulations were not put in the subdivision regulations as required by

enabling resolution; 3) because the only statutory authority for a board of

county commissioners to seek an injunction is in R.C. 307.40, and that

section limits the authority to injunctions pertaining to residential property, it

was error for the court to grant a mandatory injunction for the removal of

Appellants’ nonresidential personal use building; and 4) it was error for the

court to grant a mandatory injunction where Appellee’s testimony showed

the only real threat was an increase in insurance rates, claiming that such

harm is not irreparable because it is remedied by an award of money

damages and therefore the extraordinary remedy of mandatory injunction is

not warranted.

      {¶2} Because resolutions 91-114 and 92-152 were valid and

enforceable despite not being incorporated into a county building code or the

county subdivision regulations, we overrule Appellants’ first and second

assignments of error. However, because we conclude that R.C. 307.40

applies to residential structures only, we sustain Appellants’ third
Ross App. No. 10CA3161                                                          3


assignment of error and reverse the decision of the trial court. As such, our

disposition of Appellants’ third assignment of error renders the fourth

assignment of error moot.

                                    FACTS

      {¶3} In April 1991, the Ross County Board of Commissioners enacted

Resolution No. 91-114 which provided regulations for flood hazard areas,

for participation in the National Flood Insurance Program, pursuant to R.C.

307.37 and 307.85. In October 1992, Resolution No. 91-114 was amended

by Resolution No. 92-152, which extended the identified flood hazard area

to include the Indian Creek area, where Appellants’ property is located.

These resolutions essentially imposed rules and regulations regarding

construction in the flood hazard areas, and also required that development

permits be obtained prior to the start of construction.

      {¶4} On January 3, 2002, after driving by Appellants’ property and

noticing the construction of a new building, the Ross County Flood Plain

Administrator sent Appellant, Leonard Roop, a letter informing him that the

building he was constructing was located in the Indian Creek Floodway and

that construction in the area was prohibited under Resolution No. 91-114. In
Ross App. No. 10CA3161                                                                                 4


the letter, Roop was instructed to stop construction immediately, and was

also advised of his right to request a variance.2

        {¶5} On January 30, 2002, the Ross County Board of Commissioners

filed a complaint against Appellants, Leonard and Lori Roop. The

complaint sought a preliminary and permanent injunction for the removal of

Appellants’ non-residential personal use building, pursuant to R.C. 307.37,

307.40 and Civ.R. 65, claiming the construction of the building was in

violation of floodplain regulations and the public would suffer irreparable

harm if the violation was not abated. Appellee defended against the

complaint on the theory that Appellants were trying to enforce an illegally

adopted resolution.

        {¶6} On August 4, 2004, Appellants filed a motion for summary

judgment, which was subsequently denied. The parties eventually agreed to

submit the case to the Magistrate on the legal issue of whether the floodplain

regulations were properly enacted and enforceable. When the magistrate

held that the regulations were valid, Appellants attempted to appeal the

decision to this Court; however, we dismissed the appeal for lack of a final,

appealable order. The matter finally proceeded to a bench trial on March 25,

2009. The only witness presented at the trial was Keith Putnam, the Ross
2
 The ultimate denial of Appellants’ request for a variance was the subject of a previous appeal to this
Court, wherein we upheld the denial of Appellants’ variance request . Roop v. The Floodplain Regulations
Variance Bd. of Ross County, Ross App. No. 03CA2707, 2003-Ohio-5522.
Ross App. No. 10CA3161                                                           5


County Flood Plain Administrator. After hearing the evidence presented at

trial, the magistrate issued a decision indicating that the floodplain

regulations at issue were properly enacted under R.C. 307.37 and 307.85 and

that Appellants’ construction of their nonresidential structure was in

violation of those regulations. Relying on the testimony of Keith Putnam

that was introduced at trial, the magistrate ruled that the construction would

cause irreparable harm if allowed to remain and granted Appellee a

permanent injunction, ordering Appellants to remove their nonresidential

structure.

      {¶7} On June 8, 2009, Appellants filed objections to the magistrate’s

decision; however, on March 31, 2010, the trial court issued an entry

overruling the objections to the magistrate’s decision, adopting the

magistrate’s decision and ordering a permanent injunction against

Appellants. It is from this decision that Appellants bring their timely appeal,

assigning the following errors for our review.

                         ASSIGNMENTS OF ERROR

“I.   IT WAS ERROR FOR THE COURT TO RULE THAT R.C. 307.37,
      AS IT EXISTED WHEN APPELLANTS BUILT THEIR
      BUILDING, PERMITTED A COUNTY HAVING NO COUNTY
      BUILDING CODE TO PASS FLOODPLAIN REGULATIONS FOR
      PARTICIPATION IN THE NATIONAL FLOOD INSURANCE
      PROGRAM.
Ross App. No. 10CA3161                                                      6


II.    IT WAS ERROR FOR THE COURT TO RULE THAT, BECAUSE
       THE FLOODPLAIN REGULATIONS IN QUESTION WERE
       PUBLISHED BEFORE THEIR ADOPTION, IT WAS
       IRRELEVANT TO THE ISSUE OF CONSTRUCTIVE NOTICE
       THAT THE REGULATIONS WERE NOT PUT IN THE
       SUBDIVISION REGULATIONS AS RQUIRED BY THE
       ENABLING RESOLUTION.

III.   BECAUSE THE ONLY STATUTORY AUTHORITY FOR A
       BOARD OF COUNTY COMMISSIONERS TO SEEK AN
       INJUNCTION IS IN R.C. 307.40, AND THAT SECTION LIMITS
       THE AUTHORITY TO INJUNCTIONS PERTAINING TO
       RESIDENTIAL PROPERTY, IT WAS ERROR FOR THE COURT
       TO GRANT A MANDATORY INJUNCTION FOR THE
       REMOVAL OF APPELLANTS’ NONRESIDENTIAL PERSONAL
       USE BUILDING.

IV.    IT WAS ERROR FOR THE COURT TO GRANT A MANDATORY
       INJUNCTION WHERE APPELLEE’S TESTIMONY SHOWED
       THE ONLY REAL THREAT WAS AN INCREASE IN
       INSURANCE RATES. SUCH HARM IS NOT IRREPARABLE
       BECAUSE IT IS REMEDIED BY AN AWARD OF MONEY
       DAMAGES. THE DAMAGE NOT BEING IRREPARABLE, THE
       EXTRAORDINARY REMEDY OF MANDATORY INJUNCTION
       IS NOT WARRANTED.”

                             BACKGROUND

       {¶8} The National Flood Insurance Program (NFIP) was established

pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster

Protection Act of 1973, which in part amended the 1968 Act. OAG Op. No.

91.028; citing 42 U.S.C. §§ 4001 et seq. The Federal Emergency

Management Agency (FEMA) is responsible for carrying out the National

Flood Insurance Program. Id.; citing 42 U.S.C. § 4011 (1988). Federal law
Ross App. No. 10CA3161                                                            7


prohibits FEMA from making flood insurance coverage available unless a

community has adopted floodplain management regulations that meet

minimum NFIP standards and is enforcing these regulations with respect to

all development in flood hazard areas. Id.; citing 42 U.S.C. §§ 4012, 4022

(1988); 44 C.F.R. § 60.3 (1990). As a result of the foregoing, the “Ross

County Commissioners adopted Resolution No. 91-114 (‘Flood

Regulations’), amending the Flood Damage Prevention Regulations of Ross

County, for the regulation of flood hazard areas in Ross County. The Flood

Regulations contain many methods for controlling flood risk, which include

restricting structures in the floodway itself and on the fringe of the

floodway.” Roop, supra, at ¶2. On appeal, Appellants challenge the validity

of Resolution No. 91-114.

                   ASSIGNMENTS OF ERROR I AND II

      {¶9} Because our analysis of Appellants’ first and second assignments

of error overlap, we address them in conjunction with one another. In their

first assignment of error, Appellants contend that it was error for the court to

rule that R.C. 307.37, as it existed when Appellants built their building,

permitted a county having no county building code to pass floodplain

regulations for participation in the NFIP. In their second assignment of

error, Appellants contend that it was error for the court to rule that, because
Ross App. No. 10CA3161                                                            8


the floodplain regulations in question were published before their adoption,

it was irrelevant to the issue of constructive notice that the regulations were

not put in the subdivision regulations as required by enabling resolution.

Appellee contends that the floodplain resolutions passed by the Ross County

Commissioners were properly enacted and enforceable, even though they

were not included in a county building code or county subdivision

regulations. All of Appellants’ assignments of error present questions of law

that we will review de novo. See, generally, State v. Hix (Jan. 9, 1997), Pike

App. No. 96CA575, 1997 WL 15226.

      {¶10} The relevant version of R.C. 307.37 which was in effect at the

time Appellants constructed their non-residential personal use building

provided, in (A)(2) that “a county building code may include regulations for

participation in the national flood insurance program established in the

‘Flood Disaster Protection Act of 1973,’ * * *.” (Emphasis added). R.C.

307.37(B) additionally provided that “[r]egulations or amendments may be

adopted under this section only after public hearing at not fewer than two

regular sessions of the board.” Further, R.C. 307.85, in its most recent

version that was effective September 29, 1995, provides in (A) as follows:

“The board of county commissioners of any county may participate in, * * *

establishing and operating any federal program enacted by the congress of
Ross App. No. 10CA3161                                                           9


the United States, * * * and for such purpose may adopt any procedures and

take any action not prohibited by the constitution of the Ohio nor in conflict

with the laws of this state.”

        {¶11} A review of the record indicates that the parties stipulated

below that Ross County did not have a building code, as contemplated by

R.C. 307.37(A)(2). However, the record reveals that the following

legislation was passed, from 1981 and forward, related to floodplain

regulation:

1981:         1981 Ross County Subdivision Regulations, which included an
              Appendix E., (a resolution entitled County Building Permit
              Review System), stated to have been adopted pursuant to H.B.
              664 and in order to become eligible for the sale of subsidized
              flood insurance. Appendix E. also provided that violators
              would be guilty of a misdemeanor, citing R.C. 307.37-307.40 in
              support).

1987:         Resolution No. 87-137, which amended the Flood Damage
              Prevention Guidelines to provide regulations for flood hazard
              areas. The language states that the resolution was adopted
              pursuant to R.C. 307.37 and 307.85 and that it adopts
              regulations necessary for participation in the NFIP. It again
              states that violations are misdemeanors and represents that
              public hearings were held in accordance with R.C. 307.37.

1991:         Resolution No. 91-114, which repealed previous Resolution
              No. 87-137. This resolution was adopted to provide regulations
              for flood hazard areas, for participation in the NFIP, and states
              it was adopted pursuant to R.C. 307.37 and 307.85. Although it
              was ordered that this resolution be incorporated in to the
              Subdivision Regulations of Ross County as Appendix E., the
              record indicates that this never occurred. The record does,
Ross App. No. 10CA3161                                                         10


              however, indicate that the necessary public hearings were held
              prior to adoption of the resolution as required by R.C. 307.37.

1992:         Resolution 92-152 did not repeal, but simply amended
              Resolution No. 91-114 regarding Flood Protection
              Requirements for Indian Creek. The parties stipulated below
              that the property in question was located in Indian Creek.
              Again, the resolution expressed its adoption pursuant to R.C.
              307.37 and public hearings were held accordingly.

1996:         Amended Subdivision Regulations of Ross County were
              adopted which expressly stated in section 103 that “any other
              regulations previously adopted by the Ross County Board of
              Commissioners or Ross County Planning Commission shall be
              deemed to be repealed.” However, section 107.01 further stated
              that “provisions of these regulations shall supplement any and
              all laws of the State of Ohio, resolutions of the County and
              Townships * * *.” These new subdivision regulations
              contained no reference whatsoever to the NFIP or participation
              therein.

        {¶12} The above detailed pieces of legislation were all in existence

and are applicable to the case sub judice. In our view, resolution nos. 91-

114 and 92-152 were properly enacted and govern the construction of

Appellant’s building in the Indian Creek Floodway. Although R.C. 307.37

stated that counties “may” include floodplain regulation in their county

building codes, the express language of that statute did not make that act

mandatory. Further, although R.C. 307.37 most specifically deals with the

enactment of floodplain legislation, R.C. 307.85 also provides authority for

the enactment of such legislation. See, OAG Op. No. 91-028 (reasoning,

albeit with regard to regulation of agricultural use buildings not at issue
Ross App. No. 10CA3161                                                        11


herein, that even if R.C. 307.37 did not provide authority for floodplain

regulation, “R.C. 307.85 provides general authority for a county to

participate in the National Flood Insurance Program by adopting procedures

or taking actions that are not prohibited by the Ohio Constitution or in

conflict with the laws of Ohio.”). Opinions released by the Ohio Attorney

General are not binding authority, but are considered persuasive authority.

Dickess v. Stephens, Lawrence App. No. 05CA26, 2006-Ohio-4972 at ¶11;

citing, State ex rel. North Olmstead Fire Fighters Assn. v. North Olmstead

(1992), 64 Ohio St.3d 530, 533, 1992-Ohio-4, 597 N.E.2d 136.

      {¶13} Though the resolutions at issue were not included in a county

building code and were apparently omitted from the county subdivision

regulations, their enactment was within the authority of the county

commissioners, and public hearings were held placing affected residents on

notice of their existence. See, R.C. 302.13 “Specific powers of board,”

(boards of county commissioners may “[b]y ordinance or resolution make

any rule, or act in any matter not specifically prohibited by general law;

provided that, in the case of conflict between the exercise of powers

pursuant to this division and the exercise of powers by a municipality or

township, the exercise of power by the municipality or township shall

prevail * * *.); see, also, OAG Op. No. 84-038 (“[i]t has been previously
Ross App. No. 10CA3161                                                           12


noted that R.C. 307.85(A) authorizes a board of county commissioners to

perform acts not otherwise statutorily authorized where the performance of

such acts is reasonably related to the establishment and operation of a

federal program, provided such acts are not in conflict with the

constitutional and statutory laws of this state.”). (Emphasis added).

      {¶14} Thus, because resolution nos. 91-114 and 92-152 were within

the authority of the board to enact, were properly published and the subject

of public hearings, and were not repealed by the subsequent 1996

subdivision regulation amendments, they were and are valid and enforceable

as against Appellants. As such, we cannot conclude that the trial court erred

in finding these resolutions to be valid and enforceable. Accordingly,

Appellants’ first and second assignments of error are overruled.

                           ASSIGNMENT OF ERROR III

      {¶15} In their third assignment of error, Appellants contend that

because the only statutory authority for a board of county commissioners to

seek an injunction is in R.C. 307.40, and that section limits the authority to

injunctions pertaining to residential property, it was error for the court to

grant a mandatory injunction for the removal of Appellants’ nonresidential

personal use building. Appellee counters by arguing that that R.C. 307.40

does provide authority for the injunction that was granted, and also relies on
Ross App. No. 10CA3161                                                         13


section 3.7 contained in resolution no. 91-114, which states that violations of

the regulation will be prosecuted as misdemeanors, and also states that

“[n]othing herein contained shall prevent the County from taking any such

other lawful action as is necessary to prevent or remedy any violations.”

The trial court granted Appellee’s request for injunction, reasoning that it

had sufficiently proven the threat of irreparable harm, without citation to

R.C. 307.40. For the following reasons, we sustain Appellants’ assignment

of error.

       {¶16} The version of R.C. 307.40 “Unlawful construction may be

enjoined” applicable to the facts sub judice had an effective date of

September 11, 1961, and provided as follows:

“No person shall erect, construct, alter, repair, or maintain any single-family,
two-family, or three-family dwellings, within the unincorporated portion of
any county, wherein the board of county commissioners has enacted
building regulations as provided in section 307.37 of the Revised Code,
unless such building regulations are fully complied with.” (Emphasis added).

Further, the statute provides that:

“In the event any building is being erected, constructed, altered, repaired or
maintained in violation of the regulations adopted by resolution under the
authority granted by such section, the board, the prosecuting attorney, or the
county building inspector of such county or any adjacent, contiguous, or
neighboring property owner who would be especially damaged by such
violation, in addition to the remedies provided by law, may institute a suit
for injunction, abatement, or other appropriate action to prevent such
violation of the regulations relating to the erection, construction, alteration,
repair, or maintenance of such building.” (Emphasis added).
Ross App. No. 10CA3161                                                         14


      {¶17} To determine the legislature's intent, we must first look to the

plain language of the statute itself. State v. Lowe, 112 Ohio St.3d 507, 2007-

Ohio-606, 861 N.E.2d 512, at ¶ 9, citing State ex rel. Burrows v. Indus.

Comm., 78 Ohio St.3d 78, 81, 1997-Ohio-310, 676 N.E.2d 519. We must

read words and phrases in context and construe them “according to the rules

of grammar and common usage.” R.C. 1.42. The above-cited statute

expressly refers to single, double or triple family dwellings, which would be

residential in nature. Although Appellants place much emphasis on the

latter quoted part of the statute that references “any building;” we conclude,

based on the plain language of the statute that the reference to “any

building” refers back to the previously stated one, two or three family

residential dwellings.

      {¶18} Counties may exercise only those powers affirmatively granted

by the General Assembly. Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand &

Gravel, 67 Ohio St.3d 579, 582, 1993-Ohio-556, 21 N.E.2d 696; citing,

State ex rel. Shriver v. Belmont Cty. Bd. of Commrs. (1947), 148 Ohio St.

277, 74 N.E.2d 248, paragraph two of the syllabus; Portage Cty. Bd. of

Commrs. v. Gates (1910), 83 Ohio St. 19, 30, 93 N.E. 255, 259; Lake Cty.

Commrs. v. Ashtabula Cty. Commrs. (1873), 24 Ohio St. 393, 401.

Therefore, in the absence of a specific statutory grant of authority, a board of
Ross App. No. 10CA3161                                                          15


county commissioners is powerless to enact legislation related to penalties

and/or remedies for violations of floodplain regulations, especially if those

penalties conflict with other provisions of the Revised Code.

      {¶19} As set forth above, the parties stipulated below that the

structure at issue is a non-residential personal use building. Thus, there is no

authority under R.C. 307.40 for the granting of injunctive relief to Appellee,

as the structure at issue was not residential in nature. See, OAG 65-203

(reasoning that the word “dwellings” as used in RC 307.37 as amended by

129 v 1571, eff. 9-11-61, does not include detached garages, and the deletion

of the words “including public or private garages” from such section by

amendment excludes detached garages, so a board of county commissioners

has no authority under the statutes to adopt, administer and enforce

regulations pertaining to the erection, construction, repair, alteration and

maintenance of detached garages appurtenant to residential buildings.).

      {¶20} Further, with regard to Appellants’ reliance on resolution no

91-114’s purported penalty provision, we conclude that to the extent the

penalty provision conflicts with the Chapter 307 of the Revised Code’s

penalty provision, it is invalid. Specifically, R.C. 307.99(C) provides that

“[w]hoever violates section 307.37 of the Revised Code, shall be fined not

more than three hundred dollars.” That statute does not provide for
Ross App. No. 10CA3161                                                            16


violations of R.C. 307.37 to be prosecuted as misdemeanors, nor does it

provide for imposition of injunctive relief (except with regard to residential

structures).

      {¶21} In light of the foregoing, Appellants’ third assignment of error

is sustained and the trial court’s imposition of injunctive relief is reversed.

                           ASSIGNMENT OF ERROR IV

      {¶22} In their fourth assignment of error, Appellants contend that it

was error for the court to grant a mandatory injunction where Appellee’s

testimony showed the only real threat was an increase in insurance rates.

Appellants claim that such harm is not irreparable because it is remedied by

an award of money damages and therefore the extraordinary remedy of

mandatory injunction is not warranted. In light of our resolution of

Appellants’ third assignment of error, the fourth assignment of error has

been rendered moot.

                                  JUDGMENT AFFIRMED IN PART,
                                  REVERSED IN PART AND CAUSE
                                  REMANDED.


Kline, J., concurring.

      {¶23} I respectfully concur in judgment only because I find that Ross

County had repealed its floodplain regulations prior to any violation by

Leonard and Lori Roop (hereinafter the “Roops”).
Ross App. No. 10CA3161                                                      17


      {¶24} In 1981, the Ross County Board of Commissioners and the

Ross County Planning Commission developed subdivision regulations,

which contained regulations to become eligible for the sale of subsidized

flood insurance. The flood regulations were located in “Appendix E” of the

1981 subdivision regulations. The flood regulations contained in Appendix

E were a resolution of the Ross County Board of Commissioners that had

been adopted March 1, 1976.

      {¶25} In 1987, Ross County passed Resolution 87-137, which adopted

regulations necessary for participation in the National Flood Insurance

Program (hereinafter the “NFIP”). Resolution 87-137 was “incorporated

into the said Subdivision Regulations of Ross County, Ohio, as Appendix

‘E’, and made a part thereof.” The resolution also superseded the resolution

dated March 1, 1976 (i.e., Appendix E from the 1981 subdivision

regulations).

      {¶26} In 1991, the county passed Resolution 91-114, which contained

floodplain regulations for participation in the NFIP. Resolution 91-114 was

incorporated into the subdivision regulations as Appendix E. Resolution

91-114 stated that it superseded Resolution 87-137.

      {¶27} In 1996, however, the Ross County Board of Commissioners

amended the subdivision regulations and repealed all prior regulations. The
Ross App. No. 10CA3161                                                                          18


1996 amended subdivision regulations specifically provide that “These

regulations shall become effective from and after the date of its approval

and adoption * * *. Henceforth, any other regulations previously adopted

by the Ross County Board of Commissioners or Ross County Planning

Commission shall be deemed to be repealed.” Section 103, 1996 amended

Ross County subdivision regulations (emphasis added).3

        {¶28} The 1996 amended subdivision regulations do not mention

floodplain regulations. Additionally, Appendix E of the 1996 amended

subdivision regulations is entitled “Sample Maintenance Provisions for

Private Access Drives.” Furthermore, amendments to the subdivision

regulations subsequent to 1996 do not mention the floodplain regulations.

        {¶29} Thus, I conclude that Ross County, intentionally or

inadvertently, repealed its floodplain regulations prior to the Roops erecting

their non-residential personal use structure. Therefore, there could be no

violation of the regulations, and I concur in judgment only.




3
 Section 107 “Relation to Other Laws” of the 1996 amended subdivision regulations did not
revive the floodplain regulations that section 103 repealed. Section 107.01 provides that “The
provisions of these regulations shall supplement any and all laws of the State of Ohio, resolutions
of the County and Townships, or any and all rules and regulations promulgated by authority to
such law or resolution relating to the purpose and scope of these regulations.” Under section
107, the subdivision regulations presumably supplement subsequent resolutions of the County
and Townships or resolutions previously passed by county bodies other than the Board of
Commissioners or the Planning Commission. However, section 107 does not support the
proposition that the 1996 amended subdivision regulations supplement resolutions that were
specifically repealed by section 103.
Ross App. No. 10CA3161                                                        19


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVRESED IN PART AND THE CAUSE REMANDED and that the
Appellee and Appellants split 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 Ross County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J.: Concurs in Judgment Only.
Kline, J.: Concurs in Judgment Only with Opinion.



                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland, 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.
