[Cite as Rall v. Arora, 2013-Ohio-1392.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




THOMAS J. RALL, ET AL.,

        PLAINTIFFS-APPELLANTS,                            CASE NO. 9-12-56

        v.

CHANDRA ARORA, M.D., ET AL.,
                                                          OPINION
        DEFENDANTS-APPELLEES.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 11 CV 0833

                                      Judgment Affirmed

                              Date of Decision: April 8, 2013




APPEARANCES:

        Jason A. Blue for Appellants

        Michael J. Romanello and Melvin J. Davis for Appellees,
        Chandra Arora, M.D. and Midwest Internal Medicine Assoc.

        Theodore Munsell and Karen Cadieux for Appellees, Marion Health
        System, LLC, Marion Area Health Center and Frederick C. Smith
        Clinic
Case No. 9-12-56


ROGERS, J.

         {¶1} Plaintiffs-Appellants,           Thomas        J.   (“Jeffrey”)       and     Laura      Rall

(collectively, “the Ralls”), appeal the judgment of the Court of Common Pleas of

Marion County dismissing their claims against Defendants-Appellees, Dr.

Chandra Arora and Midwest Internal Medicine Associates (“Midwest”), and

granting summary judgment in favor of Defendants-Appellees, Marion Area

Health Center (“the Center”), Marion Health System, LLC, (“Marion Health”),

and the Frederick C. Smith Clinic, Inc. (“the Clinic”) (all Appellees are

collectively referred to “Appellees”). On appeal, the Ralls essentially argue that

the doctrine of equitable estoppel precluded the trial court from entering these

orders. The basis for the Ralls’ argument is that Appellees, in order to induce the

Ralls to dismiss a previous action against them, purportedly agreed to not raise a

statute of limitations defense against the Ralls’ claims in any subsequent action.

For the reasons that follow, we affirm the trial court’s judgment.

         {¶2} The November 21, 2011 complaint was the third filed by the Ralls

against Appellees. The Ralls’ first complaint was filed on November 27, 2007 and

voluntarily dismissed without prejudice by stipulation of the parties on July 13,

2009.     Meanwhile, the second complaint was filed on August 10, 2009 and

voluntarily dismissed by the Ralls on November 23, 2010.1


1
  We do not have the full records from these previous actions. However, from the limited record before us,
it appears as though the dismissal of the first action occurred after the Ralls unilaterally dismissed one of

                                                    -2-
Case No. 9-12-56


         {¶3} On February 21, 2012, Dr. Arora and Midwest filed a motion to

dismiss the Ralls’ third complaint against them pursuant to Civ.R. 12(B)(6). The

basis for the motion was that the statute of limitations on the Ralls’ claims had

expired. Dr. Arora and Midwest further argued that the Ohio savings statute did

not apply to the third complaint since the Ralls had already used the statute to save

their second complaint against a statute of limitations defense. Dr. Arora and

Midwest also supplemented their motion by attaching the judgment entries

dismissing the previous actions.

         {¶4} The trial court issued an order to respond giving the Ralls 14 days in

which to file their response to Dr. Arora’s and Midwest’s motion. They countered

that their third complaint was not barred because Appellees had purportedly

agreed that they would not assert a statute of limitations defense. The Ralls

attached their attorney’s affidavit regarding this agreement to their response. In

the affidavit, the Ralls’ attorney attested that “[t]his dismissal [of the first action]

was contingent upon [Appellees’] counsels’ agreement that my dismissal not count

towards the one voluntary dismissal permitted by the Ohio Rules of Civil

Procedure Rule 41(A).” (Docket No. 14, Exhibit 3, p. 1).




the defendants in that action pursuant to Civ.R.41(A)(1)(a). After the unilateral dismissal, the trial court
filed a judgment entry in which it stated that the action was dismissed against several defendants not
included in the Ralls’ unilateral dismissal. According to the parties’ representation at oral argument before
this court, the trial court’s erroneous action in this regard led to the stipulated dismissal. However, no
evidence of these circumstances is present in the record before us.

                                                    -3-
Case No. 9-12-56


      {¶5} Also attached to the Ralls’ opposition was the “Agreed Judgment

Entry of Dismissal” filed in their first action on July 13, 2009. The judgment

entry includes the following relevant language:

      The parties thereupon reached agreement on the record that the
      Complaint filed in this action would be dismissed without prejudice
      by agreement of the parties, with the Dismissal Entry to be filed on
      July 13, 2009. The parties further agreed that the Plaintiff would
      soon thereafter refile suit against these Defendants, and that all
      discovery that has been conducted in this action would be able to be
      used and transferred to the re-filed action. The parties further agreed
      that it is anticipated that the trial in the re-filed action between these
      parties would take seven trial days, and have tentatively scheduled
      the trial in the re-filed case to begin on February 16, 2010. (Docket
      No. 14, Exhibit 4, p. 1).

      {¶6} While the motion was pending, Dr. Arora and Midwest filed the

transcript of the pretrial conference in which the parties discussed their agreement

for the dismissal of the Ralls’ first action.     The following relevant exchange

occurred:

      Mr. Blue [Attorney for the Ralls]: * * * [W]e agree to a dismissal
      without prejudice to take place around July 13th.

      ** *

      The Court: Alright. Very good. And it’s my understanding
      gentlemen that there is an agreement between the parties that this
      case is to be dismissed without prejudice by agreement of the parties
      effective on July 13, 2009 is that correct?

      Mr. Blue:      That’s correct.

      Mr. Romanello [Attorney for Dr. Arora and Midwest]: That’s
      correct.

                                         -4-
Case No. 9-12-56



       The Court: Alright. And the understanding is that the suit would
       very quickly thereafter be re-filed and the counsel in this case have
       looked at their schedules, and what the Court is willing to do is we
       are willing to set aside seven trial dates * * * in anticipation of the
       re-filed suit.
       * * * Have I accurately reflected the agreement of the parties?

       Mr. Blue:     Plaintiff is in agreement, Your Honor.

       Mr. Romanello:       I’m in agreement, Your Honor.

       Mr. Munsell [Attorney for the Center, Marion Health, and the
       Clinic]:   * * * I’m in agreement as well. (Docket No. 17, p. 3-
       7).

       {¶7} On April 3, 2012, the trial court granted Dr. Arora’s and Midwest’s

motion to dismiss the claims against them. In the course of granting the motion,

the trial court referred to evidentiary materials outside of the allegations contained

in the Ralls’ complaint.

       {¶8} At that point, the Ralls’ claims against the Center, Marion Health, and

the Clinic remained. The Center, Marion Health, and the Clinic first sought

judgment on the pleadings on the basis that the statute of limitations had expired.

On May 10, 2012, the trial court denied their motion. On May 18, 2012, the

Center, Marion Health, and the Clinic moved for summary judgment.                They

asserted the same grounds in support of their motion as they had in their motion

for judgment on the pleadings.      On August 21, 2012, the trial court granted

summary judgment in favor of the Center, Marion Health, and the Clinic.


                                         -5-
Case No. 9-12-56


       {¶9} The Ralls filed this timely appeal, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

       THE TRIAL COURT ERRED WHEN IT GRANTED
       DEFENDANTS/APPELLEES’ MOTION TO DISMISS AND
       MOTION FOR JUDGMENT ON THE PLEADINGS WHERE
       DEFENDANTS WERE EQUITABLY ESTOPPED FROM
       MOVING   TO    DISMISS   BASED     ON   THEIR
       REPRESENTATIONS TO PLAINTIFF’S COUNSEL.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED WHEN IT RULED THAT THE
       AGREED JUDGMENT ENTRY PREVENTED PLAINTIFFS
       FROM RE-FILING THEIR COMPLAINT WHERE ALL
       PARTIES HAD AGREED TO PERMIT PLAINTIFFS TO
       REFILE THE COMPLAINT.

                            Assignment of Error No. III

       THE TRIAL COURT ERRED WHEN IT RULED IN FAVOR
       OF DEFENDANTS/APPELLEES WHERE AN ISSUE OF
       MATERIAL     FACT     EXISTED   AS   TO   THE
       CIRCUMSTANCES SURROUNDING PLAINTIFF’S ABILITY
       TO DISMISS AND RE-FILE THEIR COMPLAINT.

       {¶10} Due to the nature of the assignments of error, we elect to address the

first and third assignments of error together.

                         Assignments of Error Nos. I & III

       {¶11} In their first and third assignments of error, the Ralls argue that the

trial court erroneously dismissed their claims against Appellees. According to the

Ralls, the trial court’s orders were inappropriate due to the doctrine of equitable

                                         -6-
Case No. 9-12-56


estoppel. Specifically, the Ralls contend that Appellees should be estopped from

asserting a statute of limitations defense because they previously stipulated to the

voluntary dismissal of their first action and agreed that the Ralls could re-file their

complaint. We disagree.

        {¶12} Initially, we must address the Ralls’ erroneous reference to the trial

court’s granting of a motion for judgment on the pleadings. The trial court did not

grant such a motion. Indeed, it denied the Center’s, Marion Health’s, and the

Clinic’s motion for judgment on the pleadings. As such, we disregard the Ralls’

reference to the trial court’s granting of a motion for judgment on the pleadings.

          Procedural Defects Relating to Dr. Arora’s and Midwest’s Motion

        {¶13} Although the parties have not raised the procedural defects relating

to Dr. Arora’s and Midwest’s motion to dismiss pursuant to Civ.R. 12(B)(6), their

glaring nature compels us to discuss them before addressing the merits of the

Ralls’ arguments. Dr. Arora, Midwest, and the Ralls introduced materials outside

of the complaint to support and oppose the motion to dismiss pursuant to Civ.R.

12(B)(6).      Further, the trial court considered these extraneous materials and

dismissed the Ralls’ claims against Dr. Arora and Midwest, ostensibly pursuant to

Civ.R. 12(B)(6).2 The trial court’s dismissal of these claims, however, could not


2
  This author’s position is that a Civ.R. 12(B)(6) motion is an entirely improper vehicle for raising and
arguing a statute of limitations defense. Such a defense is an affirmative defense, and affirmative defenses
are, by their confessionary nature, incompatible with Civ.R. 12(B)(6) motions. See Finn v. James A.
Rhodes State College, 191 Ohio App.3d 634, 2010-Ohio-6265, ¶ 34 (3d Dist.) (Rogers, J., concurring).

                                                    -7-
Case No. 9-12-56


have been pursuant to Civ.R. 12(B)(6) since rulings on such motions are limited

solely to the allegations contained in the complaint. E.g., State ex rel. Findlay

Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581 (1996).

       {¶14} Courts, including the Supreme Court of Ohio, have previously

addressed a trial court’s erroneous consideration of extraneous materials in

granting Civ.R. 12(B)(6) motions by finding that the trial court actually granted a

motion for summary judgment. E.g., State ex rel. Scanlon v. Deters, 45 Ohio

St.3d 376, 377 (1989) (reviewing order of dismissal pursuant to Civ.R. 12(B) as a

summary judgment ruling since the trial court considered materials outside of the

complaint when issuing its ruling), overruled on other grounds by State ex rel.

Steckman v. Jackson, 70 Ohio St.3d 420 (1994); My Father’s House No. 1 v.

McCardle, 3d Dist. No. 9-11-35, 2013-Ohio-420, ¶ 16 (same). We follow this

guidance, and because the trial court considered improper materials in dismissing

the Ralls’ claims against Dr. Arora and Midwest, we treat the trial court’s order as

one granting summary judgment. The fact that the Ralls, Dr. Arora, and Midwest

all offered extraneous evidence in support of their positions further bolsters our

decision.   See Civ.R. 61 (“The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does not affect the

substantial rights of the parties.”); EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d

240, 2005-Ohio-5799, ¶ 12 (10th Dist.) (finding that the failure of the trial court to


                                         -8-
Case No. 9-12-56


convert Civ.R. 12(B)(6) was harmless “because both parties had the opportunity to

present evidence in support of their respective positions”). Additionally, we note

that the Ralls have not raised this procedural error at any point in this matter and

indeed they fostered the error by filing extraneous materials. See Thomas v.

Progressive Cas. Ins. Co., 2d Dist. No. 24519, 2011-Ohio-6712, ¶ 35 (addressing

merits of the plaintiff’s appeal despite procedural defects since the plaintiff was

the first to offer extraneous materials and did not object to the trial court’s

erroneous consideration of them when granting summary judgment).

                           Summary Judgment Standard

         {¶15} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999).    Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination.      Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distris., Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one


                                         -9-
Case No. 9-12-56


conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

      {¶16} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings. Id.; Civ.R. 56(E).

               Relevant Statute of Limitations for the Ralls’ Claims

      {¶17} Since the Ralls’ complaint asserts Jeffrey’s claim for medical

malpractice and Laura’s derivative claim for loss of consortium, the one-year

limitation contained in R.C. 2305.113(A) applies to their action.             R.C.

2305.113(B)(1) allows this limitation to be extended 180 days if the plaintiff

serves timely notice of the potential malpractice claim upon the defendants. Here,

Jeffrey received the purportedly negligent medical treatment in June and July


                                       -10-
Case No. 9-12-56


2006, which allegedly led to a diagnosis of osteomyelitis in August 2006. Since

the Ralls allege no other facts regarding the discovery of the negligent treatment,

August 2006 was the latest date on which their claims accrued. Accordingly,

taking into consideration the Ralls’ service of the 180-day notice, the statute of

limitations ran in February 2008, before the first dismissal.

                                            Savings Statute

         {¶18} Since the statute of limitations had expired by the time that the Ralls

had filed their third complaint, we must assess the applicability of the Ohio

savings statute.3 The statute, in pertinent part, provides as follows:

         In any action that is commenced or attempted to be commenced, if in
         due time * * * the plaintiff fails otherwise than upon the merits, the
         plaintiff * * * may commence a new action within one year after the
         date of * * * the plaintiff’s failure otherwise than upon the merits or
         within the period of the original applicable statute of limitations,
         whichever occurs later. R.C. 2305.19(A).

         {¶19} Courts, including the Supreme Court of Ohio, have concluded that

the savings statute may only be used once to extend the permissible time for the

filing of an action. E.g., Thomas v. Freeman, 79 Ohio St.3d 221, 227 (1997);

Hamrick v. Ramalia, 8th Dist. No. 97385, 2012-Ohio-1953, ¶ 19; Estate of

Carlson v. Tippett, 122 Ohio App.3d 489, 491 (11th Dist. 1997); Hancock v.

Kroger Co., 103 Ohio App.3d 266, 268-69 (10th Dist. 1995). The Tenth District

applied this rule in Brubaker v. Ross, 10th Dist. No. 01AP-1431, 2002-Ohio-4396.
3
 We note that the parties’ briefs have obfuscated the critical differences between the statute of limitations
and the savings statute.

                                                   -11-
Case No. 9-12-56


There, the plaintiff filed his first action in January 1994 and voluntarily dismissed

it in January 1996, after the statute of limitations had run. Under the savings

statute, he had until January 1997 to file a second complaint, which he did.

However, the plaintiff voluntarily dismissed the second complaint and filed a third

complaint in December 1999, which was outside of the one-year extended time

period provided by the savings statute. Id. at ¶ 2-3. Accordingly, the court found

that the savings statute did not save the plaintiff’s third complaint from being

time-barred since he had already used it to save his second complaint and to

extend the time period for re-filing through January 1997. Id. at ¶ 14.

       {¶20} The facts here are markedly similar to the scenario in Brubaker. The

Ralls commenced their first action before the expiration of the statute of

limitations and voluntarily dismissed it by stipulation on July 13, 2009, after the

statute had run.   Under the savings statute, they had until July 13, 2010 to re-file

their action, which they did by re-filing in August 2009. But, the Ralls, like the

plaintiff in Brubaker, voluntarily dismissed their second complaint and re-filed

their third complaint after the savings statute’s one-year time extension had

expired. Since the savings statute can only be used once, the Ralls are precluded

from extending the time period for filing any further.         Consequently, as in

Brubaker, the savings statute does not save the Ralls’ third complaint from being

time-barred.


                                        -12-
Case No. 9-12-56


                                 Equitable Estoppel

       {¶21} The Ralls attempt to avoid summary judgment by asserting the

applicability of the doctrine of equitable estoppel.      The doctrine of equitable

estoppel requires proof of the following elements: (1) that the party to be estopped

“made a factual misrepresentation; (2) that is misleading; [and] (3) induces actual

reliance which is reasonable and in good faith; and (4) which causes detriment to

the relying party.” MacDonald v. Auto-Owners, 3d Dist. No. 1-12-25, 2012-Ohio-

5949, ¶ 48. Courts have previously applied the doctrine to preclude a party from

asserting a statute of limitations defense provided that the above elements are

satisfied. E.g., Hutchinson v. Wenzke, 131 Ohio App.3d 613, 616 (2d Dist. 1999)

(finding that equitable estoppel barred the defendants from asserting a statute of

limitations defense); see also Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231,

246 (7th Dist. 2000) (“Under Ohio law, the doctrine of equitable estoppel may be

employed to prohibit the inequitable use of the statute of limitations.”).

       {¶22} However, a review of all the materials in the record reveals no

factual representation by any of Appellees that they would abstain from asserting a

statute of limitations defense if the Ralls’ first action was voluntarily dismissed.

Rather, the record merely shows that the parties voluntarily dismissed the first

action by stipulation and agreed that the Ralls could re-file a second action. Mr.

Blue’s affidavit does not change this dynamic. In it, he merely stated the parties


                                         -13-
Case No. 9-12-56


agreed that the voluntary dismissal of the first action would not affect the Ralls’

rights under Civ.R. 41(A)(1)(a), which does not implicate the statute of

limitations. See Hamrick, 2012-Ohio-1953, at ¶ 14 (“[T]he double-dismissal rule

is only one half of the equation. [The plaintiff] is still faced with the statute of

limitations.”). As such, the Ralls have not shown that there is a genuine issue of

material fact as to whether Appellees agreed to forego any statute of limitations

defense.

       {¶23} The Ralls rely on Hutchinson and Turner v. C. & F. Prods. Co., 10th

Dist. No. 95AP02 (Sept. 28, 1995), in support of their position. However, both of

these cases are distinguishable and we decline to apply their guidance here. In

Hutchinson, the plaintiffs unilaterally dismissed their action before filing it again.

When the second action was pending, the defendants represented that the plaintiffs

could dismiss the action a second time without prejudice and re-file again.

However, when the plaintiffs did file the action a third time, the defendants

asserted a statute of limitations defense. Id. at 614-16. Upon these facts, the

Second District found that the defendants were equitably estopped from asserting

the defense.     Id. at 616.   In Turner, The Tenth District also estopped the

defendants from asserting a statute of limitations defense under similar facts.

Turner, supra.




                                        -14-
Case No. 9-12-56


         {¶24} The procedural posture here is significantly different. The parties

agreed to a stipulated dismissal of the Ralls’ first action and the Clinic, Marion

Health, and the Center agreed that the Ralls could re-file their action, which they

did. However, unlike Hutchinson and Turner, there is no indication that the

parties came to any sort of agreement as to the Ralls’ right to re-file a third action

when they unilaterally dismissed their second action. Without evidence of such an

agreement, we find that Hutchinson and Turner are inapposite here. See Boggs v.

Baum, 10th Dist. No. 10AP-864, 2011-Ohio-2489, ¶ 39 (finding that the

defendants did not agree to toll or waive the statute of limitations so as to allow

the plaintiffs to file a third action); Frazier v. Fairfield Med. Ctr., 5th Dist. No.

08CA90, 2009-Ohio-4869, ¶ 39 (finding that the plaintiff’s third cause of action

against the defendants was time barred where the parties’ stipulated dismissal of

the first action did not refer to the defendants’ waiver of the statute of limitations

defense).

         {¶25} In sum, the evidence in the record shows that there is no genuine

issue of material fact indicating that the statute of limitations for the Ralls’ claims

has not expired.

         {¶26} Accordingly, we overrule the Ralls’ first and third assignments of

error.




                                         -15-
Case No. 9-12-56


                              Assignment of Error No. II

       {¶27} In their second assignment of error, the Ralls essentially argue that

the trial court erred in granting summary judgment because the agreed judgment

entry of July 13, 2009 did not affect the Ralls’ ability to re-file their complaint.

We disagree.

       {¶28} The Ralls seemingly misapprehend the nature of the July 13, 2009

agreed judgment entry and the basis for the trial court’s orders as implicating the

dictates of Civ.R. 41(A)(1). Specifically, the Ralls appear to have concluded that

the trial court based its orders on its finding that the filing of their third action was

contrary to Civ.R. 41(A)(1)(a)’s double dismissal rule. Civ.R. 41(A)(1) provides,

in pertinent part, as follows:

       [A] plaintiff, without order of court, may dismiss all claims asserted
       by that plaintiff against a defendant by doing either of the following:

       (a) Filing a notice of dismissal at any time before the
       commencement of trial * * *;

       (b) Filing a stipulation of dismissal signed by all parties who have
       appeared in the action.

       Unless otherwise stated in the notice of dismissal or stipulation, the
       dismissal is without prejudice, except that a notice of dismissal
       operates as an adjudication upon the merits of any claim that the
       plaintiff has once dismissed in any court. Civ.R. 41(A)(1).

       {¶29} However, the record provides no indication that the trial court’s

orders were based on any potential violation of Civ.R. 41(A)(1)(a). None of


                                          -16-
Case No. 9-12-56


Appellees raised the applicability of the double dismissal rule in their motions and

they have conceded on appeal that the rule does not apply in this matter. Further,

the trial court specifically and correctly found that the Ralls’ third action was not

contrary to Civ.R. 41(A)(1)(a):

       [T]he first action in this Court * * * was an agreed dismissal by the
       parties, which was signed by the Court, pursuant to Civil Rule
       41(A)(2). The second lawsuit was terminated by a Notice of
       Dismissal filed by the [the Ralls] pursuant to Civil Rule 41(A)(1)(a).
          The stipulated dismissal of the parties in the first case was not a
       unilateral dismissal, which means that the [Ralls] still had the option
       to use their one time Civil Rule 41(A)(1)(a) unilateral notice of
       dismissal in the second case, which would not be with prejudice and
       would not be an adjudication on the merits. * * * The [Ralls] are
       therefore not barred from bringing a third complaint against
       [Appellees] on the basis of Civil Rule 41. (Docket No. 19, p. 3-4).

Since the record indicates that the trial court did not base its orders on Civ.R.

41(A)(1)(a) and that the Ralls were permitted to file their second action, we find

that there is no foundation for this assignment of error.

       {¶30} Accordingly, we overrule the Ralls’ second assignment of error.

       {¶31} Having found no error prejudicial to the Ralls, in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                                Judgment Affirmed

WILLAMOWSKI, J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr


                                         -17-
