Bailey Martin, et al., Plaintiffs-Appellants, v. Ohio University, et al., Defendants-Appellees.
Case No. 22CA14
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
RELEASED 7/19/2023
[Cite as Martin v. Ohio Univ., 2023-Ohio-2511.]
Hess, J.
Thomas W. Connors, Warner Mendenhall, and John Pfleiderer, Mendenhall Law Group, Akron, Ohio for plaintiffs-appellants.
Michael H. Carpenter, Michael N. Beekhuizen, and Gregory R. Dick, Carpenter Lipps and Leland LLP Columbus, Ohio Special Counsel for defendants-appellees.
DECISION AND JUDGMENT ENTRY
Hess, J.
{¶1} Plaintiffs-Appellants Bailey Martin along with 13 other Ohio University students and Mary Thomas, an Ohio University employee, appeal the trial court‘s judgment in favor of the appellees-defendants Ohio University and members of the Board of Trustees of the Ohio University dismissing the amended complaint on the grounds that appellants lack standing, their claims are moot, and they fail to state a claim upon which relief can be granted. Appellants contend the trial court erred on all three bases: standing, mootness, and failure to state a claim.
{¶2} We find that the trial court erred when it dismissed appellants’ discrimination claim under
I. FACTS AND PROCEDURAL BACKGROUND
{¶3} On August 31, 2021, Ohio University, a state institution of higher education, issued “Community Health Directives” for “[a]ll community members at any Ohio University campus or location” and amended the prior Directives issued November 16, 2020. The Directives covered masks, physical distancing, symptom assessment, quarantine and isolation, tracing efforts, COVID-19 testing, and the COVID-19 vaccine requirement. All individuals were required to wear masks (which were defined as surgical, N95, or two-layered, washable, handmade cloth) indoors on public campus spaces and on public transportation. Persons could apply for an exemption to the mask requirement “due to extraordinary circumstances” or, if disabled, could apply for a reasonable accommodation as needed. All individuals were required to physically distance by following posted seating arrangements in classrooms. In all other indoor public university spаces only unvaccinated persons were required to maintain a distance of at least six feet from others. All individuals had to measure their body temperature and complete a daily COVID symptom assessment. All individuals were required to participate in tracing efforts and to comply with directives and guidelines related to quarantine or isolation. All individuals were required to select one of two testing “pathways“: (1) fully vaccinated persons would not be required to participate in weekly asymptomatic testing if they selected the “Vaccination Pathway” and provided proof of vaccination or (2) vaccinated persons who select “Weekly Testing Pathway,” unvaccinated persons, and undecided
{¶4} The Directives also included the following COVID-19 vaccination requirement:
Ohio University requires all students, faculty, and staff to be vaccinated against COVID-19 by November 15, 2021 or have an approved exemption. For vaccines that require two doses, both doses must be complete by November 15. This applies to all employees, including those working remotely, and all students except those enrolled exclusively in fully online programs and coursework who will not access University facilities on any campus in person. Students, faculty and staff can apply for an exception for the vaccine requirement for medical reasons or for reasons of conscience, including ethical and moral belief or sincerely held religious beliefs. Any exemption request must be approved and confirmed in writing prior to November 1, 2021. (Emphasis sic.)
{¶5} The Directives warned that student violations of any of the terms of the Directives “will be adjudicated through the Student Code of Conduct, thereby incurring disciplinary action up to and including suspension or expulsion.” Faculty and staff violations “will be addressed through the appropriate University disciplinary processes based on an employee‘s classification. Disciplinary action may vary, up to and including termination of employment.”
{¶6} Ohio University issued an additional Community Health Dirеctives on January 6, 2022 which stated that it amended “the prior Directives issued November 16, 2020 Directive.” No specific reference was made to the August 31, 2021 Directives. The January 6, 2022 Directives maintained the same mask mandate and exemptions as the August 31, 2021 Directives (but changed the definition of mask to “a surgical, KN95[,] N95, or KF94 mask or a similarly fitted face covering that is made of three or more layers of fabric or other material“). Physical distancing requirements were removed. All
{¶7} An additional “updated COVID-19 guidance for Spring Semester” was shared with the Ohio University community three days later on January 9, 2022. It announced that weekly asymptomatic testing would begin on January 14, 2022 for all students in university housing and all residents of sorority/fraternity properties, regardless of their vaccination status. Weekly asymptomatic testing would continue as previously
{¶8} The university also provided COVID-19 protocol concerning what to do if a person tests positive, experiences symptoms, or is exposed to COVID-19. Protocols for persons testing positive or experiencing symptoms were the same for all. However, the protocols for persons exposed to COVID-19 differed depending upon whether the person was vaccinated and/or boosted, and the time periods that had expired since vaccination. Unvaccinated persons and those who had been vaccinated over six months ago and not boosted (in the case of Pfizer or Moderna) or those who had been vaccinated over two months ago and not boosted (Johnsоn & Johnson (J&J)) were all required to quarantine for five days and mask for the remaining five days (assuming negative asymptomatic test results on day five post exposure). Those who had been boosted or vaccinated within the past six months (Pfizer and Moderna) or two months (J&J) were not required to quarantine but were required to mask for 10 days (assuming negative asymptomatic test results on day five post exposure).
{¶9} On December 7, 2021, appellants (plus two others who have since dismissed their claims) filed a complaint against the appellees, the appellees filed a motion to dismiss the complaint, and the appellants filed an amended complaint on January 19, 2022. The amended complaint sought declaratory and injunctive relief against the appellees.
{¶11} Thirteen appellants described themselves as students and one described herself as an employee. All alleged that they had applied for and received either religious, conscious, or medical exemptions from the vaccination requirement. They alleged, “No Plaintiffs have received a religious or medical exemption from the masking or testing mandate because they do not have a medical or religious reason to qualify for such exemptions under the Mandates.”2
{¶12} The amended complaint contained a claim for declaratory judgment and sought injunctive relief. The claim for declaratory judgment sought a judicial declaration on four issues: (1) that appellees lacked authority under
{¶13} The amended complaint included four exhibits: (1) the August 31, 2021 Community Health Directives; (2) the January 6, 2022 Community Health Directives; (3) the January 9, 2022 updated COVID-19 guidance for spring semester; and (4) the university protocol for positive tests, symptoms, and exposure. These four exhibits were collectively referred to by appellants as the “Mandates.”
{¶14} Appellees filed a motion to dismiss the amended complaint. The appellees argued that the appellants lacked standing because they all applied for and received vaccination exemptions and they failed to allege whether they had applied for a mask exemption. The appellees also contended that the complaint failed to state a claim for which relief can be granted. They argued that the Moderna and Pfizer vaccines have both received full FDA approval and therefore
{¶15} Appellants opposed the motion and argued that even though they have all received vaccine exemptions, they have standing to assert their discrimination claim and their claims that the mask and testing requirements violate their constitutional right to refuse medical treatment and constitute criminal coercion. Appellants assert that, contrary to appellees’ assertions, masks are medical devices intended for a medical purpose which are regulated by the FDA and, as such, are a form of medical treatment they have a constitutional right to refuse. Appellants also argued that only the Pfizer, Moderna, and J&J vaccines are currently available and are not fully FDA approved. They contended that “[t]wo COVID-19 vaccines that have been fully authorized by the FDA, Comirnaty on August 23, 2021 and Spikevax on January 31, 2022, but are not currently available.”
{¶16} Appellants submitted a number of additional documents with their opposition memorandum including: (1) an FDA letter concerning “filtering facepiece respirators“; (2) a CDC document discussing masks and respirators; (3) an FDA
{¶17} The trial court granted appellees’
For the reasons advanced by defendants in their motion, and finding itself concurring with the well-reasoned opinions of several other courts dismissing identical, or nearly identical, claims against other Ohio public universities, the Court hereby dismisses plaintiffs’ claims in their entirety.
Plaintiffs lack standing, their claims are moot, and they state no viable claims based upon constitutional grounds, Ohio statutory law, or otherwise. See Siliko v. Miami University, Butler Co. C.P. No. CV2021 10 1467 (Dec. 6, 2021); Lipp v. University of Cincinnati, Hamilton Co C.P. No. A2104238 (June 14, 2022); and Hoerig v. Bowling Green State University, Wood Co. C.P. No. 2021CV0456 (Feb. 28, 2022 & July 15, 2022). Accordingly, defendants’ motion is granted, and plaintiffs’ amended complaint is dismissed without prejudice.
II. ASSIGNMENTS OF ERROR
{¶18} Appellants identify three assignments of error for review:
I. The trial court erred in dismissing appellants’ first amended complaint for failure to state facts establishing standing, since there is a set of facts consistent with the complaint which would establish such standing.
II. The trial court erred in dismissing appellants’ first amended complaint for mootness, since the University did not meet its heavy burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.
III. The trial court erred in dismissing appellants’ first amended complaint for failure to state a claim for declaratory relief.
For convenience, we will address appellants’ assignments of error together.
III. Review of Civ.R. 12(B)(6) Motion to Dismiss
A. Jurisdiction over a “Without Prejudice” Dismissal Entry
{¶19} Before we address the merits of the appeal, we must decide whether we have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district[.]”
{¶20} Here the trial court dismissed appellants’ amended complaint pursuant to appellees’ ”
{¶21} Despite the trial court‘s statement that the order was “without prejudice,” the Supreme Court of Ohio has held, “[A] dismissal grounded on a complaint‘s ‘failure to state a claim upon which relief can be granted’ constitutes a judgment that is an ‘adjudication on the merits.’ As a result, res judicata bars refiling the claim.” State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009–Ohio–4176, 914 N.E.2d 170, ¶ 15. Thus, Arcadia Acres held that a dismissal pursuant to
{¶22} In Fletcher, the Court held that “a dismissal for failure to state a claim is without prejudice except in thosе cases where the claim cannot be pleaded in any other
{¶23} Based on the Supreme Court of Ohio precedent, we find that the trial court‘s order granting appellees’
Here it is unclear whether Bland and Lasky potentially could plead differently to state a breach-of-contract claim against Toyota Motor Sales. Resolution of that issue likely depends, at least in part, on the existence or non-existence of facts that are known to them. For present purposes, however, we will presume that Bland and Lasky are incapable of pleading differently to overcome the deficiencies found by the trial court. If that were not so, they likely would have re-filed their complaint rather than appealing the dismissal. Accordingly, we will proceed to the merits of the appeal.
Bland at ¶ 8. Similarly, here though we cannot decisively determine whether the appellants might conceivably plead their claims differently, we note they filed an amended complaint in response to appellees’ first motion to dismiss, which shows that they have already attempted to do so. We presume that appellants put forth their most capable efforts in re-filing their amended complaint and are incapable of pleading differently to overcome the deficiencies found by the trial court. This is particularly true where the deficiencies are in the appellants’ standing to bring the claims. Accordingly, we find that the trial court‘s order was a final, appealable order notwithstanding the “without prejudice” language and we will proceed to the merits of the appeal.
B. Standard of Review
{¶24} We review dismissals pursuant to
{¶25} Even though appellees filed a
When a trial court considers a
Civ.R. 12(B)(6) motion to dismiss, it * * * “cannot rely on evidence or allegations outside the complaint to determine aCiv.R. 12(B)(6) motion.” When a party presents evidence outside the pleadings, the trial court bears the “responsibility either to disregard [the] extraneous materiаl or to convert [the] motion to dismiss into a motion for summary judgment * * *.” If the court converts the motion to dismiss to one for summary judgment, the court must give the parties notice and a reasonable opportunity to present all of the available evidence thatCiv.R. 56(C) permits.Civ.R. 12(B) .
C. Standing
{¶27} Before a court can consider the merits of a legal claim, “the person or entity seeking relief must establish standing to sue.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. Under common-law standing, a plaintiff must demоnstrate: (1) an injury; (2) that is traceable to the defendant‘s allegedly unlawful conduct, and (3) is likely to be redressed by the requested relief. Ohioans for Concealed Carry, Inc. v. Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 12. “[T]he question of standing depends upon whether the party has alleged such a ‘personal stake in the outcome of the controversy,’ as to ensure that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.’ ” (Citations omitted.) Sierra Club v. Morton, 405 U.S. 727, 732, 31 L.Ed.2d 636, 92 S.Ct. 1361, 1364 (1972). Standing “must be demonstrated for each claim and each form of relief.” Ohioans for Concealed Carry at ¶ 13. ” ‘[S]tanding is to be determined as of the commencement
{¶28} Appellants assert they have standing under common-law standing principles and under the Declaratory Judgment Act,
* * * any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
“The three prerequisites to declaratory relief include ‘(1) a real controversy between the parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the parties’ rights.’ ” Ohioans for Concealed Carry at ¶ 30, quoting ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 19.
Although a declaratory-judgment action generally contemplates that the action is brought before an injury-in-fact has occurred, a plaintiff must nonetheless demonstrate “actual present harm or a significant possibility of future harm to justify pre-enforcement relief.” Peoples Rights Org., Inc. v. Columbus, 152 F.3d 522, 527 (6th Cir.1998). Certain impending injury is sufficient to obtain preventative relief; a plaintiff need not wait for an injury to actually occur. Id.
Ohioans for Concealed Carry, Inc. at ¶ 32.
{¶29} Appellants’ claim for declaratory relief sought four different declarations: (1) that the appellees lacked authority under
1. University Authority under R.C. 3337.01 , R.C. 3345.021 and R.C. 3709.212
{¶30} Appellants alleged that the university lacked authority to issue the Mandates under
{¶31} First, we can readily dispense with the claim involving
{¶32} As for the claims involving
{¶33} Here, not only have none of the appellants sought a mask exemption, but they also failed to allege that it would be futile to do so. The Mandates provide for a mask exemption “due to extraordinary circumstances.” Appellants alleged that they had no “religious” or “medical” basis to apply for a mask exemption, but the amended complaint
{¶34} This leaves only the question of whether the appellants have standing to challenge the Mandates’ testing requirements as being beyond the scope of appellees’ authority under
{¶35} In their brief, appellants argue that to show “standing for claims of lack of authority, the U.S. Supreme Court has ‘found it sufficient that the challenger “sustain[s] injury” for an executive act that allegedly exceeds authority.’ ” They cite Seila Law LLC v. Consumer Fin. Protection Bur., 207 L.Ed.2d 494, 140 S.Ct. 2183, 2196 (2020) and contend that their injury is the threat of “suspension or expulsion if they don‘t comply with the Mandates.” However, they do not allege that they have been expelled or suspended or – much less – that any disciplinary procedures have been initiated against them.
{¶36} Seila does not help appellants because the Seila case requires an actual concrete injury, which appellants do not have. Seila is the Supreme Court decision that held that the structure of the Consumer Financial Protection Bureau (CFPB) violated the separation of powers because the President could not fire the director at will. When Congress created the CFPB, it was given broad regulatory powers over consumer financial transactions, including fair debt collection practices and consumer credit. “The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S.
[P]etitioner‘s [Selia‘s] appellate standing is beyond dispute. Petitioner is compelled to comply with the civil invеstigative demand and to provide documents it would prefer to withhold, a concrete injury. That injury is traceable to the decision below and would be fully redressed if we were to reverse the judgment of the Court of Appeals and remand with instructions to deny the Government‘s petition to enforce the demand.
Seila Law LLC v. Consumer Financial Protection Bur., 207 L.Ed.2d 494, 140 S.Ct. 2183, 2196 (2020).
{¶37} Here, although appellants allege they are under the authority of a questionable Mandate and Selia alleged it was under the authority of a questionable federal bureau, that is where the similarities end. Selia had been placed under investigation for allegedly violating a regulation enforced by the questionable bureau and was being compelled to respond to its document demands. Appellants, to the contrary, have not alleged that they are being investigated or disciplined for violating the testing Mandates. Unlike the Seila law firm, appellants have alleged no concrete injury. A concrete injury or “injury in fact” is “(a) concrete and particularized, and (b) ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical,’ ” (Citations omitted.) Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 119 L.Ed.2d 351, 112 S.Ct. 2130, 2136 (1992). Appellants do not have standing to challenge the appellees’ Mandates as it relates to the testing
{¶38} In sum, appellants do not have standing to challenge the appellees’ vaccine and mask Mandates because they have obtained vaccine exemptions and have not sought mask exemptions and therefore do not have an injury or real justiciable controversy. Appellants do not have standing to challenge the testing Mandates because they have alleged no injury traceable to the testing Mandates. The “testing” itself is not an injury and the possible threat of expulsion or suspension is purely conjectural. The trial court properly dismissed appellants’ claim for declaratory relief based on lack of authority under
2. Discrimination under R.C. 3792.04 6
{¶39} In October 2021,
(B) Notwithstanding any conflicting provision of the Revised Code, a public school or state institution of higher education shall not do either of the following:
(1) Require an individual to receive a vaccine for which the United States food and drug administration has not granted full approval;
(2) Discriminate against an individual who has not received a vaccine described in division (B)(1) of this section, including by requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.
(C) This section does not apply to a hospital or other health care facility that is owned or operated by, or affiliated with, a state institution of higher education.
{¶40} Appellants alleged that the COVID-19 vaccines currently available to be administered as of January 19, 2022 when they filed their amended complaint were J&J, Moderna, and Pfizer and those vaccines had only received emergency use authorization (EUA) from the FDA. They alleged Comirnaty was a COVID-19 vaccine that was fully approved by the FDA on August 23, 2021, but that it was not available. They alleged, “The only COVID-19 vaccines available to fulfill the Mandates are EUA vaccines that have not been fully approved by the FDA.” For purposes of analyzing a
{¶41} Appellants alleged that appellees discriminated in violation of
{¶42} In their motion to dismiss, appellees argued that
{¶43} Appellees also argued that
{¶44} Based on the allegations set forth in the amended complaint, we find that appellants have sufficiently alleged facts establishing standing to bring a discrimination
{¶45} The trial court erred in dismissing this claim for lack of standing or for failure to state a claim upon which relief can be granted. Additionally, to the extent the trial court dismissed this discrimination claim under
3. Mask Mandates and the Right to Refuse Medical Treatment
{¶46} For their third claim for declaratory relief, appellants alleged that they have a right under
The right to refuse medical treatment is a fundamental right in our country, where personal security, bodily integrity, and autonomy are cherished liberties. These liberties were not created by statute or case law. Rather, they are rights inherent in every individual.
Section 1, Article I of the Ohio Constitution provides that “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.” (Emphasis added.) Our belief in the principle that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” is reflected in our decisions.
(Citations omitted.) Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 180–81, 736 N.E.2d 10, 15–16 (2000). Appellants couched their mask claim in the context of an Ohio constitutional right to refuse medical treatment as there is no general constitutional right to refuse to wear a mask:
[T]here is no general constitutional right to wear, or to refuse to wear a face mask in public places. While the government typically does not regulate what an individual must wear in the privacy of his or her own home, federal, state and local governments may govern what must be worn in public spaces, particularly when the health and safety of the general public are at issue. Wearing a face mask in the time of a global pandemic is a matter of public health. In fact, other federal courts that have considered the mask requirement have upheld it.
(Citations omitted.) Whitfield v. Cuyahoga Cty. Pub. Library Found., N.D.Ohio No. 1:21 CV 0031, 2021 WL 1964360, *2 (May 17, 2021); Klaassen v. Trustees of Indiana Univ., 549 F.Supp.3d 836, 889 (“there is no fundamental constitutional right to not wear a mask * * * nor is there a fundamental constitutional right not to be tested for a virus before entering a place of public accommodation.“)
{¶49} The trial court properly dismissed this claim for lack of standing.
4. Coercion under R.C. 2905.12
{¶50} For their fourth and last claim, appellants seek a declaration that the appellees are coercing them in violation of the criminal coercion statute,
(A) No person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall do any of the following: * * * (5) Take, withhold, or threaten to take or withhold official action, or cause or threaten to cause official action to be taken or withheld.
{¶51} The appellants’ amended complaint alleges, “The Mandates involves [sic] taking or withholding official action to coerce Plaintiffs to accept medical treatment which Plaintiffs have the legal freedom to refuse under
{¶52} The coercion statute is a criminal statute. It gives rise to a right of prosecution by the state but does not create a private right of action.
“[A] claim of coercion is not a ‘cognizable civil cause of action.’ ” “In the absence of a specific provision to the contrary, criminal statutes generally do not create а private cause of action, but give rise only to a right of prosecution by the state.”
(Citations omitted.) Siliko v. Miami Univ., 12th Dist. Butler No. CA2021-12-162, 2022-Ohio-4133, ¶ 37, appeal not allowed, 169 Ohio St.3d 1459, 2023-Ohio-758; Klaassen, 549 F.Supp. at 870-871 (“The university is presenting the students with a difficult choice – get the vaccine or else apply for an exemption * * * or forego school for the semester or altogether. But this hard choice doesn‘t amount to coercion.“). A claim of coercion is not a cognizable civil cause of action, appellants do not have standing to bring a claim under
{¶53} We sustain in part and overrule in part appellants’ first assignment of error. To the extent that appellants have sufficiently alleged facts establishing standing to bring their discrimination claim under
{¶54} We have addressed appellants’ second and third assignment of errors as they relate to the discrimination claim under
App.R. 12(A)(1)(c) states that “[u]nless an assignment of error is made moot by a ruling on another assignment of error,” a court of appeals shall “decide each assignment of error and give reasons in writing for its decision.” An assignment of error is moot when it cannot have ” ‘any practical legal effect upon a then-existing controversy.’ ” Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82 (7th Dist.1948), quoting Ex parte Steele, 162 F. 694, 701 (N.D.Ala.1908). Put differently, an assignment of error is moot when an appellant presents issues that are no longer live as a result of some other decision rendered by the appellate court.
State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26. Because we find that the appellants’ remaining claims were properly dismissed by the trial court because appellants lacked standing, it is not necessary to determine whether they were improperly dismissed on other grounds. In re D.H., 4th Dist. Gallia No. 09CA11, 2009-Ohio-6009, ¶ 54; BND Rentals, Inc. v. Dayton Power & Light Co., 2020-Ohio-4484, 158 N.E.3d 993, ¶ 65 (2d Dist.) (“A decision that achieves the right result must be affirmed, even if the wrong reasoning is used to justify the decision, because an error in reasoning is not prejudicial.“).
IV. CONCLUSION
{¶55} We sustain appellants’ assignments of error in part and overrule in part. To the extent appellants have sufficiently alleged facts establishing standing to bring their discrimination claim under
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND MATTER REMANDED FOR FURTHER PROCEEDINGS.
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART, AND MATTER REMANDED FOR FURTHER PROCEEDINGS, and that appellee and appellant shall pay the costs equally.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant tо 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.