Shawn K. Brust v. Janet E. Kravitz et al.
No. 16AP-201
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 22, 2016
2016-Ohio-7871
SADLER, J.
(REGULAR CALENDAR)
Rendered on November 22, 2016
On brief: Shawn K. Brust, pro se.
On brief: Janik L.L.P., Steven G. Janik, and Audrey K. Bentz, for appellee Janet E. Kravitz.
On brief: Law Office of Gary S. Shroyer, and Gary S. Shroyer, for appellee H. Tim Merkle.
On brief: Kegler Brown Hill + Ritter Co., LPA, Jonathan E. Coughlan, and Jason H. Beehler, for appellees Danny W. Bank and Lorie L. McCaughan.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{1} Plaintiff-appellant, Shawn K. Brust, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellants Janet E. Kravitz, the Estate of Max Kravitz, H. Tim Merkle, Danny W. Banks, and Lorie L. McCaughan. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{2} On August 19, 1997, appellant was arrested for murder. Appellant hired Merkle and attorney Max Kravitz to represent him in his criminal case. There was no
{3} On December 24, 1997, Merkle filed an answer on appellant‘s behalf in the forfeiture case. Bank and McCaughan of the Capital University Legal Clinic subsequently agreed to perform certain discovery-related work in the forfeiture case.
{4} On October 1, 1998, a Franklin County jury found appellant guilty of murder but not guilty оf the drive-by specification. On December 5, 1998, the trial court convicted appellant of murder and imposed a prison term of 15 years to life, with an additional 3 years for a gun specification. Appellant appealed to this court from his conviction and sentence. On April 27, 1999, the trial court granted the parties’ joint motion to stay the forfeiture case pending appellant‘s appeal of his conviction. The stay order permitted the parties to conduct discovery.
{5} Appellant‘s complaint alleges that his state court appeal from his conviction and sentence concluded on August 2, 2000. Max Kravitz died in 2007, survived by his wife and former law partner, Janet E. Kravitz (“Kravitz“).
{6} On March 10, 2014, approximately seven years after the death of Max Kravitz, the state moved the court to lift the stay in the forfeiture case due to the conclusion of the criminal case. The court lifted the stay on March 11, 2014. On March 20, 2014, Bank and McCaughan moved the court for leave to withdraw as counsel for appellant in the forfeiture case. According to appellant‘s complaint, he was unaware that the forfeiture case had been stayed until he received correspondence from Bank informing him that Bank and McCaughan had recently moved the court for leave to withdraw. Appellant also claims that he did not know Bank and McCaughan had undertaken his representation in the forfeiture case until he received Bank‘s correspondence.
{8} Appellant filed the instant action against appellees on March 4, 2015 alleging legal malpractice, breach of contract, and promissory estoppel. On April 10, 2015, Merkle filed a motion to dismiss the complaint pursuant to
{9} On January 20, 2016, appellant filed a motion for leave to file a motion for summary judgment instanter pursuant to
{10} On February 22, 2016, the trial court issued two separate decisions on the pending motions. In the first decision, the trial court dismissed appellant‘s claims against Kravitz and the Estate as untimely filed but denied Merkle‘s motion to dismiss. In the second decision, the trial court granted Merkle‘s motion for leave to file a motion for
{11} Appellant has appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
{12} Appellant appeals and assigns the following as error:
[1.] The Trial Court Erred In Its Misconstruction Of The Law Based On Erroneous Findings Of Fact To The Prejudice Of The Appellant In Granting Appellee Janet E. Kravitz‘s Motion To Dismiss Appellant‘s Compliant [sic] For Legal Malpractice Against The Estate Of Max Kravitz As Time-Barred Under
R.C. § 2305.11(A) .[2.] The Trial Court Erred In Its Misconstruction Of The Law Based On Erroneous Findings Of Fact To The Prejudice Of The Appellant By Finding That Dismissal Was Warranted Because Appellant Failed To Present His Claims Against The Estate Of Max Kravitz Within Six Months As Required By
R.C. § 2117.06 .[3.] The Trial Court Erred To The Prejudice Of The Appellant In Granting Appellee Merkle‘s Motion For Summary Judgment Prematurely Where Appellant Filed Several Motion‘s [sic] To Strike Appellee‘s Motion For Summary Judgment And The Affidavit‘s [sic] Filed In Support Of The Motion For Summary Judgment Which Failed To Comply With The Mandates Set Forth In Civil Rule 56(C), Civ. R. 56(E) And Franklin Co. Local Rules 57.02 and 21.01, Which Constitutes Reversible Error By The Trial Court By Failing To Thoroughly Examine All Appropriate Materials Filed By Appellant Before Ruling On The Motion For Summary Judgment.
[4.] The Trial Court Erred To The Prejudice Of The Appellant By Granting Capital University Law Clinic Defendants’ Motion For Summary Judgment Where The Appellees’ Breach Of Contract And The Damages Flowing Therefrom Was So Apparent As To Obviate The Need For Expert Testimony. In This Specific Case, It Could Be Determined As A Matter Of
Law Under The Four Corners Of The Oral Contract That Expert Testimony Is Not Required To Establish Appellant‘s Claim That Appellees’ Failed to Fulfill Their Contractual Obligations.
III. LEGAL ANALYSIS
A. First Assignment of Error
{13} In appellant‘s first assignment of error, appellant argues that the trial court erred when it determined that the one-year limitation period in
{14} “A
{15} “An appellate court employs ‘a de novo standard of review for motions to dismiss filed pursuant to
{16} “Although a party may not generally raise an affirmative defense in a
1. The Claim Against the Estate
{17} Courts determine the applicable statute of limitations for a claim from the gist of the complaint and not from the label that a party may assign to a set of facts. Rumley v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 641 (10th Dist.1998). See also Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th Dist. No. 98861, 2014-Ohio-25, ¶ 35, citing Hibbett v. Cincinnati, 4 Ohio App.3d 128, 131 (1st Dist.1982). When the gist of a complaint sounds in malpractice, the other duplicative claims, even those labeled as breach of contract and promissory estoppel, are subsumed within the legal malpractice claim. Id.
{18} The one-year statute of limitations contained in
{19} The trial court concluded that the allegations in appellant‘s complaint conclusively established that the one-year limitations period in
{21} Though the trial court found that the cognizable event occurred on August 20, 2002, the trial court did not conclude that appellant‘s cause of action accrued on that date nor did the trial court rule that appellant‘s malpractice claim against the Estate lapsed on August 20, 2003, one year after the cognizable event. Rather, the trial court recognized that the stay order in the forfeiture case had the affect of extending or tolling the limitations period for his legal malpractice claim against the Estate because the attorney-client relationship between appellant and Max Kravitz had not terminated. Along with the discovery rule, the termination rule creates an exception to the general principle that a claim accrues when the wrongful act occurs. Omni-Food. See also Clemens v. Nelson Fin. Group, Inc., 10th Dist. No. 14AP-537, 2015-Ohio-1232, ¶ 48. In determining the accrual date of claims for legal malpractice, courts apply the discovery rule in combinаtion with the termination rule. Id. Under the termination rule, accrual occurs when the attorney-client relationship for a particular transaction or undertaking terminates. Id., citing Omni-Food at paragraph one of the syllabus.
{22} There is no dispute that Max Kravitz died in 2007. ” ‘Death is a tyrant that disregards all the relations between attorney and client; his stroke dissolves them.’ ” England v. Barstow, 30 Ohio App.2d 42, 44 (4th Dist.1972), quoting Cisna‘s Admr. v. Beach, 15 Ohio 300, 301 (1846). Because the attorney-client relationship is a personal one, the death of either the client or the attorney terminates the attorney-client relationship. Id. See also Liberty Mut. Ins. Co. v. Paris, 8th Dist. No. 74064 (May 20, 1999). “[A] lawyer‘s actual authority to represent a client ends when * * * the lawyer dies.” Restatement of the Law 3d, The Law Governing Lawyers, Section 31(2)(d) (2000).
2. The Claim Against Kravitz Individually
{24} Appellant does not allege that Kravitz represented him in the forfeiture case or that she performed any legal work in that case. Accordingly, аppellant‘s claim of legal malpractice against Kravitz is vicarious in nature. Under Ohio law, “a law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice.” Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, ¶ 26. “The vicarious liability of a law firm and its principals * * * presupposes that a firm principal or employee is liable on one or more claims * * * and considers when the firm itself and each of its principals share in that liability.” (Emphasis sic.) Id. at ¶ 25, quoting Restatement of the Law 3d, The Law Governing Lawyers, Section 58, Comment a (2000).
{25} As we have affirmed the trial court‘s determination that
{26} For the foregoing reasons, appellant‘s first assignment of error is overruled.
B. Second Assignment of Error
{27} In appellant‘s second assignment of error, appellant takes exception to the trial court‘s alternative holding that
{28} The Estate argues that
{29}
Nothing in this section or in section 2117.07 of the Revised Code shall be construed to reduce the periods of limitation or periods prior to repose in section 2125.02 or Chapter 2305. of the Revised Code, provided that no portiоn of any recovery on a claim brought pursuant to that section or any section in that chapter shall come from the assets of an estate unless the claim has been presented against the estate in accordance with Chapter 2117. of the Revised Code.
{30} In overruling appellant‘s first assignment of error, we held that the trial court did not err when it determined that
{31} Accordingly, appellant‘s second assignment of error is overruled.
C. Third Assignment of Error
{32} In appellant‘s third assignment of error, appellant contends that the trial court erred when it granted summary judgment in favor of Merkle. We disagree.
{34} Appellate review of summary judgments is de novo. Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935. “When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination.” Id., citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). “We must affirm the trial court‘s judgment if any of the grounds raised by the movant in the trial court are found to support it, even if the trial court failed to consider those grounds.” Id., citing Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio-4335, ¶ 7, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
{35} “To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss.” Vahila v. Hall, 77 Ohio St.3d 421 (1997), syllabus. “If the party moving for summary judgment in a negligence action can point to evidence illustrating that the nonmoving party will be
{36} In McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112 (1984), the Supreme Court of Ohio held that in а legal malpractice case, expert testimony is generally required in order to prove breach of the duty that the attorney owed to the plaintiff, unless the claimed breach of professional duty is “well within the common understanding of * * * laymen.” Id. at 113. ” ‘Expert testimony is required so that the trier of fact does not have to speculate on the standard of care, particularly in a complex case involving [matters] which are normally not within the realm of understanding of the layman.’ ” Lundeen at ¶ 17, quoting Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 512 (10th Dist.1989). Accordingly, ” ‘[i]n all but a few cases, expert testimony is required to support allegations of professional malpractice.’ ” Lundeen at ¶ 17, quoting Party Dock, Inc. v. Nasrallah, 10th Dist. No. 99AP-1345 (Oct. 5, 2000), citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 130 (1976).
{37} ” ‘The duty of an attorney to his client is to “* * * exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent in discharging the duties he has assumed.” ’ ” Yates v. Brown, 185 Ohio App.3d 742, 2010-Ohio-35, ¶ 17 (9th Dist.), quoting Palmer v. Westmeyer, 48 Ohio App.3d 296, 298 (6th Dist.1988), quoting 67 Ohio Jurisprudence 3d, Malpractice, Section 9, at 16 (1986). Here appellant alleges that his attorneys, including Merkle, breached a duty of care owed to him by failing to enter written fee agreements, failing to properly allocate fees between his criminal case and forfeiture case, failing to move the court for the return of his vehicle on the completion of his criminal case on October 30, 1998, improperly seeking a stay in the forfeiture case, and failing to request the stay be lifted on August 2, 2000. Appellant also alleges that the liability of each attorney who represented him in his forfeiture case is joint and several.
{38} In his motion for summary judgment, Merkle relied on his own affidavit in support оf his motion for summary judgment. Merkle‘s co-defendant, Kravitz, submitted
2. I am an attorney duly licensed to practice law in the state of Ohio since 1979.
* * *
5. In 1997, I, along with Max Kravitz (“Max“), were retained by the parents of Shawn Brust to represent him in relation to a criminal charge against him for aggravated murder, among other things.
6. In addition to the criminal case, a civil forfeiture action was filed in which Mr. Brust‘s 1986 Isuzu Trooper (“Vehicle“) was sought to be forfeited by the State of Ohio (“Forfeiture Action“).
7. Following a criminal jury trial, Mr. Brust was convicted of the lesser charge of murder and sentenced by the Court to 18 years to life in prison.
8. Following his conviction for murder, Mr. Brust expressed no desire or concern to me about the status of the Vehicle or the return of it to him.
9. Despite the fact that the Vehicle was not returned to Mr. Brust immediately following the criminal trial, the State of Ohio was under no obligation to dismiss or drop the Forfeiture Action and could have elected to proceed in the Forfeiture Action.
10. Based on this, it is unlikely that the Vehicle would have been returned to Mr. Brust immediately following the criminal case.
11. Mr. Brust has suffered no damage as the vehicle was ultimately released to him after the State of Ohio dismissed its Forfeiture Action.
* * *
13. Based upon my knowledge, experience, training, and education, the actions undertaken by both Max and me on behalf of Mr. Brust in handling his mаtters were at or above the standard of care for such representation in the legal community. 14. The opinions expressed herein are made with a reasonable degree of professional certainty.
(Emphasis added.) (Merkle Aff. at 1-2.)
{39} An affidavit from the acting attorney is a legally sufficient basis on which to grant a motion for summary judgment in a legal malpractice action absent any opposing affidavit of a qualified expert witness for the plaintiff. Yates at ¶ 17. The trial court determined that Merkle‘s affidavit provided the necessary evidentiary support for Merkle‘s argument that he met the applicable standard of care in his representation of appellant in the forfeiture case. The trial court granted summary judgment in favor of Merkle because appellant failed to produce rеbuttal testimony from a legal expert establishing the applicable standard of care, a breach of the standard of care by Merkle, and damages proximately caused thereby.
{40} Appellant‘s position throughout this litigation has been that expert testimony is not required for him to satisfy the elements of his claim for legal malpractice. Consequently, in opposing summary judgment, appellant has produced no expert opinion testimony that Merkle breached a duty of care owed to appellant. Nor has appellant presented the testimony of an expert witness in support of his claim that Merkle may be held jointly and severally liable to him, under the circumstances of this case, for any breach of the applicable standard of care by Max Krаvitz.
{41} As noted above, expert testimony is not required only in cases in which the breach is ” ‘so obvious that it may be determined by the court as a matter of law,’ ” Bloom v. Dieckmann, 11 Ohio App.3d 202 (1st Dist.1983), quoting Annotation, 14 A.L.R.4th 170, 173 (1982), or where the claimed breach of a professional duty is within the common understanding of a layman. Lundeen at ¶ 17, citing McInnis at 113. For example, “[t]he failure to abide by a client‘s specific instructions may be sufficient to establish a breach of a professional duty without expert testimony.” Dimacchia v. Burke, 904 F.2d 36 (6th Cir.1990), citing McInnis at 113. Similarly, expert testimony may not be necessary to
{42} In Yates, the plaintiff brought a malpractice action against Brown, an attorney who represented her in her divorce action. Plaintiff alleged that Brown was negligent in the performance of his duties. Plaintiff also filed a сomplaint for malpractice against another attorney who had represented her in the same divorce action. The trial court granted summary judgment in favor of Brown because he had presented evidence that the plaintiff had not produced expert testimony in support of her claim. In affirming the trial court‘s ruling, the Ninth District Court of Appeals stated:
Where multiple attorneys were involved in the underlying representation, and where the plaintiffs have alleged negligent representation by more than one attorney, the trial court did not err by concluding that expert testimony was necessary to establish a prima facie case of legal malpractice in regard to an individual attorney. In fact, expert testimony would be critical under these circumstances tо determining causation and either parsing or eliminating liability.
{43} Appellant has not alleged that he gave any specific instructions to Merkle regarding the forfeiture case. Nor has appellant alleged that his property was forfeited due to Merkle‘s failure to take any particular action in his forfeiture case. Additionally, appellant‘s allegations regarding attorney fees are not within the common understanding of laymen or so obvious that it may be determined by the court as a matter of law. Nor is the appropriate legal strategy in the defense of a civil forfeiture case. Given the allegations of legal malpractice raised by appellant in this case, we hold that the trial court did not err when it determined that appellant was required to prоduce expert testimony to both support his prima facie case for legal malpractice and to overcome Merkle‘s properly supported motion for summary judgment.
{44} Additionally, as was the case in Yates, appellant has sued several attorneys who represented him in the forfeiture case. Like the plaintiff in Yates, appellant has failed to produce expert testimony in support of his claim of legal malpractice. Moreover, each of the attorneys who represented appellant in this case, with the exception of decedent,
{45} In order to avoid the impact of Merkle‘s affidavit and appellant‘s own failure to produce expert testimony in support of his malpractice claim, appellant‘s third assignment of error challenges the admissibility of Merkle‘s affidavit and argues that the trial court prematurely ruled on Merkle‘s motion for summary judgment.
{46} Appellant first contends that the affidavits filed by Merkle in support of his motion for summary judgment contain conclusory assertions that are not admissible in evidence. We disagree.
{47} “When an affidavit containing opinions is made part of a motion for summary judgmеnt, it is properly considered by a trial or reviewing court when it meets the requirements set forth in
{48} In this instance, Merkle avers that he is an attorney licensed to practice law in the state of Ohio, he has personal knowledge оf the relevant facts and circumstances underlying his representation of appellant in both the criminal case and the forfeiture case, and his opinions regarding the applicable standard of care and breach are based on his knowledge, experience, training, and education as an attorney. Thus, the averments in Merkle‘s affidavits are admissible opinions and not unsupported conclusions.
{49} Appellant next argues that the trial court violated Loc.R. 57.02 of the Court of Common Pleas of Franklin County, General Division, and abused its discretion when it considered Merkle‘s affidavit because it was not attached to his motion for summary judgment. We disagree.
{50} Loc.R. 57.02 provides that “[a]ll affidavits, depositions, and other evidentiary materials permitted by
{51} There is nothing in the Ohio Rules of Civil Procedure or the Local Rules of the Franklin County Court of Common Pleas that expressly prohibits a party from joining a motion filed by a co-defendant or incorporating evidentiary materials filed by a co-defendant. Appellant‘s literal interpretation of Loc.R. 57.02 is inconsistent with
{52} Appellant next contends that the trial court violated Loc.R. 21.01 when it prematurely ruled on Merkle‘s motion for summary judgment. Loc.R. 21.01 provides as follows:
All motions shall be accompanied by a brief stating the grounds and citing the authorities relied upon. The opposing counsel or a party shall serve any answer brief on or before the 14th day after the date of service as set forth on the certificate of service attached to the served copy of the motion. The moving party shall serve any reply brief on or before the 7th day after the date of service as set forth on the certificate of service attached to the served copy of the answer brief. On the 28th day after the motion is filed, the motion shall be deemed submitted to the Trial Judge.
(Emphasis added.)
{53} As noted above, Merkle filed his motion for leave on January 21, 2016. Appellant opposed the motion and moved to strike Merkle‘s first affidavit. On February 22, 2016, the trial court granted Merkle‘s motion for leave instanter and denied the motion to strike. Accordingly, Merkle‘s motion for summary judgment was deemed filed on January 21, 2016. Under Loc.R. 21.01, Merkle‘s motion for summary judgment was deemed submitted on February 18, 2016. Thus, the trial court did not violate Loc.R. 21.01 when it ruled on the motion on February 22, 2016.
{54} To the extent that appellant argues that he was unfairly prejudiced by the trial court‘s consideration of Merkle‘s second affidavit filed on February 10, 2016, there is no indication in the trial court‘s decision that it considered the second affidavit. The trial
{55} Finally, to the extent that appellant claims that the trial court failed to consider evidence appellant submitted in opposition to the motion for summary judgment, we note that the trial court decision contains a detailed recitation of the evidentiary materials submitted by appellant. Thus, the record demonstrates that the trial court considered appellant‘s evidence but found it to be insufficient to create a genuine issue of material fact in light of the unrebutted expert testimony submitted by Merkle.
{56} For the foregoing reasons, appellant‘s third assignment of error is overruled.
D. Fourth Assignment of Error
{57} In appellant‘s fourth assignment of error, appellant contends that the trial court erred when it granted summary judgment in favor of the clinic defendants. We disagree.
{58} The clinic defendants timely filed their own affidavits in opposition to appellant‘s motion for leave to file a motion for summary judgment instanter. The trial court relied on the affidavits in granting summary judgment. McCaughan‘s affidavit prоvides, in relevant part, as follows:
3. I am a licensed attorney in Ohio * * *.
4. I am a Professor of Clinical Studies for the Capital University Law School and co-director of the Capital Legal Clinic * * *
* * *
6. In the fall of 1999, Columbus attorney Max Kravitz approached the Capital Legal Clinic for assistance with drafting and serving discovery in a civil forfeiture action
related to a criminal matter that he and attorney Tim Merkle had been handling for a criminal defendant named Shawn Brust. * * *
8. Mr. Kravitz asked if Danny Bank and I would agree to assist (pro bono) in drafting and serving discovery in the civil forfeiture matter, which we agreed to do. The sole purpose for which my services were engaged was to pursue discovery in the civil forfeiture action.
9. Accordingly, Mr. Bank and I drafted discovery requests, filed a notice of appearance in the civil forfeiturе action on October 19, 1999, and served discovery requests that same day on the Franklin County Prosecutor‘s Office.
10. We received responses to the discovery requests that we served.
11. We had no further involvement with this matter * * *.
12. Although I understand that Mr. Kravitz was paid for his work on the criminal matter, neither I nor the Capital Legal Clinic received any financial payment of any kind in return for our services in drafting and serving discovery in the civil forfeiture matter. We performed the work pro bono.
* * *
16. * * * I believe to a reasonable degree of professional certainty that my actions in representing Mr. Brust in a limited capacity in the forfeiture action met the acceptable standard of professional care.
(Emphasis added.)3 (Jan. 25, 2016 Memo. in Opp., Ex. B at 1-2.)
{59} As noted above, appellant failed to produce expert testimony in support of his legal malpractice claim. Appellant argues that expert testimony is not necessary to create an issue of fact regarding either a breach of the applicable standard of care by the clinic defendants or a causal connection between the alleged breach and appellant‘s damages. As noted in connection with appellant‘s third assignment of error, appellant‘s
{60} The clinic defendants have presented undisputed evidence that they agreed to represent appellant in the forfeiture case for the limited purpose of drafting and serving written discovery. The clinic defendants also produced undisputed expert opinion testimony that in representing appellant in a limited capacity in the forfeiture case that thеy met the acceptable standard of professional care performing legal work for appellant. Appellant failed to produce any competent evidence to rebut the expert opinion testimony of Bank and McCaughan. Accordingly, we hold that the trial court did not err when it granted summary judgment in favor of the clinic defendants. Appellant‘s fourth assignment of error is overruled.
IV. CONCLUSION
{61} Having overruled appellant‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.