CRAIG PADULA v. BRIAN C. WAGNER, et al.
C.A. No. 27509
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 17, 2015
[Cite as Padula v. Wagner, 2015-Ohio-2374.]
WHITMORE, Judge.
STATE OF OHIO ) ss: COUNTY OF SUMMIT ) APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CV-2013-04-2106
Dated: June 17, 2015
WHITMORE, Judge.
{¶1} Appellant, Craig Padula, appeals from orders of the Summit County Court of Common Pleas dismissing his claims against Appellees Brian Wagner and CCG Energy Solutions, Inc. (“CCG“) (collectively, “Appellees“). We affirm.
I
{¶2} Mr. Padula filed a “Re-filed Complaint” (the “Complaint“) on April 22, 2013. The Complaint is the subject of this appeal.1 Mr. Wagner is the President and sole shareholder of CCG. Mr. Wagner is also Mr. Padula‘s brother-in-law.
{¶3} Mr. Padula became employed with CCG in or around July 2011. Mr. Padula claims that Mr. Wagner induced him to resign from his former employment to become employed with CCG in return for certain written promises, including that Mr. Padula: (1) would only be
{¶4} Mr. Padula claims that these promises and the other terms of his employment are contained in three documents attached to the Complaint. They are the: (1) Term Sheet; (2) Covenants of Employee; and (3) Employment Agreement. The Employment Agreement includes a Commission Plan that contains terms of Mr. Padula‘s compensation.
{¶5} Mr. Padula further claims that Appеllees repudiated the promises in these documents when Mr. Wagner presented him with a Transition Agreement and a Consulting Agreement that were intended to materially alter the terms of his employment. Mr. Padula claims that these documents altered the terms of his employment by: (1) terminating his employment with CCG without cause; (2) reducing or eliminating his commission rate, fees, and compensation; (3) eliminating Mr. Padula‘s opportunity to purchase CCG; (4) expanding restrictive covenants placed upon Mr. Padula; (5) and requiring Mr. Padula to waive and release Appellees from liability.
{¶6} Mr. Padula refused to execute the Transition Agreement and the Consulting Agreement. Appellees terminated his employment with CCG effective Dеcember 31, 2012.
{¶7} In his Complaint, Mr. Padula pleads claims related to his termination. He asserts claims for: (1) declaratory judgment; (2) breach of contract; (3) promissory estoppel; (4) quantum meruit/unjust enrichment; and (5) bad faith for alleged breaches of the Term Sheet, Covenants of Employee, and Employment Agreement.
{¶9} Mr. Padula filed a First Amended Complaint. The trial court struck the First Amended Complaint in a June 6, 2014 order, thereby dismissing Mr. Padula‘s claim for compensation. This left pending only Mr. Padula‘s declaratory judgment claim relating to the enforceability of the restrictive covenants. The parties stipulated to a judgment entry dismissing this claim. The judgment entry stated that the trial court‘s orders of January 16, 2014 and June 6, 2014 were final and appealable.
{¶10} This appeal is taken from the trial court‘s orders of January 16, 2014 and June 6, 2014. Mr. Padula raises five assignments of error for our review. We will address the first two assignments of error together.
II
Assignment of Error Number One
THE TRIAL COURT ERRED BY DISMISSING PADULA‘S BREACH OF CONTRACT CLAIMS PURSUANT TO
Assignment of Error Number Two
THE TRIAL COURT ERRED BY DISMISSING PADULA‘S CLAIMS FOR DECLARATORY JUDGMENT PURSUANT TO
{¶11} Mr. Padula‘s first and secоnd assignments of error concern the trial court‘s dismissal of his breach of contract and declaratory judgment claims arising out of the Term
- the Term Sheet was not a contract for the sale of CCG to Mr. Padula;
- Mr. Padula was an employee at-will under the Employment Agreement and Covenants of Employee; and
- CCG owed no further compensation or benefits to Mr. Padula under the Employment Agreement and Covenants.
We disagree.
{¶12} “This Court reviews a trial court‘s decision to grant a motion for judgment on the pleadings under the de novo standard of review.” McLeland v. First Energy, 9th Dist. Summit No. 22582, 2005-Ohio-4940, ¶ 6. “When construing a defendant‘s motion for judgmеnt on the pleadings pursuant to
{¶13} “A copy of any written instrument attached to a pleading is a part of the pleading for all purposes.”
{¶15} Contrary to Mr. Padula‘s argument, the Term Sheet unambiguously expresses the parties’ intent that it is not a binding contract. The first, unnumbered paragraph of the Term Sheet states that it merely reflects the parties’ “present intentions” and that any “binding agreement” for the sale of CCG will be set forth in one or more “definitive agreements.” Specifically, the first paragraph states:
The undersigned agree that this Term Sheet reflects their present intentions with respect to the sale by Brian Wagner (“Wagner“) to Craig Padula (“Padula“) of all of the outstanding capital stock (the “Shares“) of CCG Energy Solutions, Inc. (the “Company“). Wagner and Padula agree that any binding agreement with resрect to the sale will be set forth in one or more definitive agreements (the “Definitive Agreements“) executed by them.
{¶16} Numbered paragraph two of the Term Sheet refers to “draft documents” that will form the basis of the yet-to-be-drafted “Definitive Agreements.” Paragraph two states:
The parties acknowledge that the draft documents (Agreement, Stock Purchase Agreement, Term Note and Pledge Agreement) previously reviewed by the parties, as revised to reflect the contents of this Term Sheet, along with any other required agreements, will be the basis for the Definitive Agreements.
{¶17} Paragraph eleven of the Term Sheet further demonstrates the parties’ intent that any binding agreement pursuant to which the рarties would commit to the sale of CCG was not yet drafted. Paragraph eleven provides that:
The parties will use commercially reasonable efforts to negotiate and finalize the Definitive Agreements within the next 60 days, with the understanding that the Agreement (pursuant to which the parties commit to the planned transaction) will
be signed upon completion, but the other agreements (Stock Purchase Agreement, Note, Pledge Agreement) will not be signed until after the Expiration Date.
This language is clear that the parties intended to give themselves 60 days, after the signing of the Term Sheet, to try to negotiate and finalize a formal, binding contract committing the parties to the sale of CCG.
{¶18} As a general rule, аgreements in principle and preliminary negotiations that refer to subsequent, formal agreements are not binding. See Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 151 (1978). Under well-established Ohio law, courts will give effect to the manifest intent of the parties when clear evidence demonstrates that they do not intend the terms of an agreement to bind them until the agreement is formalized in a written document that both parties sign. Id. This is not to say that Mr. Padula is incorrect in his assertion that an informal document that is sufficiently definite in its terms may constitute a binding agreement if the parties’ manifest intent is to be bound by the mutual promises contained therein. See Normandy Place Assocs. v. Beyer, 2 Ohio St.3d 102, 105-106 (1982) (holding that an agreement to agree is not per se unenforceable, but rather the enforceability of suсh an agreement depends on whether the parties have manifested an intention to be bound by its terms and whether these intentions are sufficiently definite to be specifically enforced). Rather, the law is that when a document unambiguously expresses the parties’ manifest intent to not be bound by its terms until the agreement is formalized at some future date, a contract does not exist.2 Berjian at 151; Mansfield Square, Ltd. v. Big Lots, Inc., 10th Dist. Franklin No. 08AP-387, 2008-Ohio-6422,
{¶19} Here, the Term Sheet plainly states that it is merely an expression of present intentions, and not a binding contract for the sale of CCG. The parties spelled out in clear language their intent to be bound only by finalized and signed definitive agreements to be executed on a future date, and nothing else. The unambiguous provisions of the Term Sheet show that it was not a final, binding agreement, but rather a preliminary step in the process of negotiating a final, formalized contract. The parties did not successfully negotiate or sign a final contract. Under these circumstances, there is no set of facts under which Mr. Padula can establish that the Term Sheet is a contract. As such, judgment on the pleadings is appropriate on Mr. Padula‘s claims for breach of contract and declaratory judgment alleging that the Term Sheet is a contract for the sale of CCG, and that Appellees’ actions breached that contract.
{¶20} Next we turn to Mr. Padula‘s claims for breach of contract and declaratory judgment based on his assertion that, under the Employment Agreement and Covenants of Employee, he was not an employee-at-will, such that Appellees could not terminate his employment except for cause. The parties agree that the Employment Agreement and Covenants of Employee were contracts.
{¶21} Construction of an unambiguous written contract is a matter of law to be determined by the courts. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the syllabus. When the terms in a contract are clear, a court may not create a new agreement by finding a different intent from that which is expressed in the contract. Id. at 246.
{¶22} Here, Sections 7 and 9 of the Employment Agreement expressly incorporate by referеnce the Covenants of Employee. Section 7 states, “The provisions of the Covenants of Employee entered into by the Company and Employee on or about the date hereof are incorporated herein, in full, by reference.” Section 9 states, in relevant part, “This Agreement (including the Covenants of Employee referenced in Section 7) contains the entire agreement between the parties hereto with respect to the employment matters contemplated herein and supersedes all prior agreements or understandings among the parties related to such employment matters.”
{¶23} It is a rule of contract construction that, when one instrument incоrporates another by reference, both instruments must be read together. Christie v. GMS Mgt. Co., Inc., 124 Ohio App.3d 84, 88 (9th Dist.1997). A court must give effect to all parts of a written contract, if this can be done in accordance with the express intent of the parties. Bank One, N.A. v. The Oaks of Medina, 9th Dist. Medina No. 04CA0080-M, 2005-Ohio-3546, ¶ 11.
{¶24} Accordingly, the Covenants of Employee and Employment Agreement, when read together, contain the universe of terms governing Mr. Padula‘s employment with CCG. This Court must read the Employment Agreement and Covenants of Employee together as one
{¶25} When the Employment Agreement and Covenants of Employee are read together, their unambiguous terms establish that Mr. Padula was an at-will employee. The unambiguous, integrated contracts state that either Mr. Padula or Appellees could terminate the employment relationship at any time, for any reason, with or without cause.
{¶26} Section 1 of the Covenants of Employee expressly provides that Mr. Padula‘s employment was at-will. Section 1 of the Covenants of Employee states, in pertinent part:
I understand that my employment is employment at will, and as such may be terminated at any time, with or without Cause (as defined in the Employment Agreement), by either myself or CCG, and any provisions of this Covenant which are applicable after the termination of my employment with CCG will remain binding regardless of whether said termination is with or without cause, voluntary or involuntary.
Thus, the contractual terms of Mr. Padula‘s employment are explicit that: (1) his employment was at-will; (2) he could be terminated either for no reason or for cause, as defined in the Employment Agreement; and (3) he had the mutual ability with Appellees to end the employment relationship at any point, with or without reason or justification.
{¶27} Section 6 of the Employment Agreement also provides that Mr. Padula could be terminated for any reason apart from the specific reasons for termination set forth in Section 3 (death), Section 4 (disability), and Section 5 (“Cause“).3 Section 6 states:
Early Termination: Other than Death, Disability or Cause: In the event the Term of Employment is terminated by either party other than pursuant to Section 3, 4 or 5, Employee will be entitled to recеive any Base Salary and Benefits earned and
accrued but unpaid through the date of termination and any un-reimbursed expenses. The parties will have no further obligation under this Agreement except that Employee will not be relieved of Employee‘s obligations under Section 7 concerning confidentiality and non-competition.
(Emphasis in sic.) Thus, Section 6 of the Employment Agreement establishes that Mr. Padula could be fired, or could end his employment voluntarily, for a reason laid out in the contract, or for any reason “other than” those specified in the parties’ agreement. This is the definition of at-will employment. See Mers v. Dispatch Printing Co., 19 Ohio St.3d 100 (1985), paragraph one of the syllabus (in an at-will employment relationship, either the employer or employee may terminate the employee relationship for any reason which is not contrary to law).
{¶28} Ohio courts recognize a strong presumption of at-will employment, unless the terms of the agreement clearly indicate otherwise. Henkel v. Educational Research Council of Am., 45 Ohio St.2d 249, 255 (1976). Here, the unambiguous terms of the contract provide that Mr. Padula‘s employment was at-will. Nonetheless, Mr. Padula argues that two contract terms cast doubt on his at-will status. The first is Section 5 of the Employment Agreement, which permits termination for cause, as defined therein. The second is a term in the Employment Agreement that states that Mr. Padula‘s employment was for a period of two years. These arguments are not persuasive.
{¶29} First, Section 5 of the Employment Agreement, which allows termination for cause, does not alter Mr. Padula‘s at-will employment status. When an employment contract contains an unambiguous statement that employment is at-will, the fact that the agreement also contains provisions for termination for cause does not negate the manifest intent of the parties to create an at-will relationship. See Cramer v. Fairfield Med. Ctr., 5th Dist. Fairfield No. 2007 CA 00057, 2009-Ohio-3338, ¶ 50.
{¶31} Indeed, the only way to read Section 1 of the Covenants of Employee, Section 6 of the Employment Agreement (termination other than for cause), and Section 5 of the Employment Agreement (termination for cause) together and give effect to each section is to determine that Mr. Padula was an at-will employee who could be terminated at any time, either for cause or for any other reason not contrary to law. A conflicting reading, that Mr. Padula could be fired only for cause, ignores the express at-will provisions in the parties’ agreement, and violates the fundamental tenent of contract construction that all terms of a contract must be given effect in accordance with the express intent of the parties. See Oaks of Medina, 2005-Ohio-3546, at ¶ 11.
{¶32} Moreover, contrary to Mr. Padula‘s argument, the inclusion of a defined term of employment does not presumptively negate at-will status when the parties’ agreement provides that either party may terminate the agreement with or without cause at any time. See, e.g., Ziegler v. Findlay Industries, Inc., 464 F.Supp.2d 733, 736-737, 741-742 (N.D.Ohio 2006). Here, the Employment Agreement provides:
The term of employment will commence on the date of this Agreement and continue for a term of two (2) years unless earlier terminated as provided in this Agreement***.
Thus, the “term of employment” clause is expressly subject to the termination provisions in the Employment Contract and Covenants of Employee. As discussed, the termination provisions in Section 6 of the Employment Agreement and Section I of the Covenants of Employee state that Mr. Padula‘s employment could be terminated at any time. Consequently, the two-year employment term was not guaranteed, but merely was the maximum period for Mr. Padula‘s employment in the event neither he nor CCG terminated the employment relationship earlier. See id. at 742 (holding that an agreement, read in its entirety, clearly showed a presumptive three year employment term which was terminable at an earlier date by either party). Accordingly, the trial court correctly concluded that the parties’ employment relationship was at-will, Mr. Padula‘s presumptive two-year term of employment notwithstanding.
{¶33} Next, we turn to the trial court‘s June 6, 2014 order striking Mr. Padula‘s Amended Complaint and claim for further compensation or benefits. To the extent that Mr. Padula claims that the trial court acted in error (he does not address the trial court‘s June 6, 2014 order in substance in his appellate brief), Mr. Padula is incorrect.
{¶34} In its January 16, 2014 judgment entry, the trial court instructed Mr. Padula to plead facts in support of his breach of contract claim for salary and commissions “accrued and unpaid prior to the date of [his] termination.” Mr. Padula‘s Amended Complaint does not plead any specific facts in support of his breach of contract claim for salary and benefits that both accrued, and were unpaid, before he was terminated. Instead, Mr. Padula vaguely asserts that: (1) he should have been paid based on deals that he worked on that “will amount” to $20 million in revenues and $5 million in gross profit to CCG for the second year of the contracts; (2) shortly
{¶35} “‘A trial court‘s decision to grant a motion to strike will not be overturned on appeal absent an abuse of discretion.‘” Nationwide Life Ins. Co. v. Kallberg, 9th Dist. Lorain No. 06CA008968, 2007-Ohio-2041, ¶ 20, quoting Matthews v. D‘Amore, 10th Dist. Franklin No. 05AP-1318, 2006-Ohio-5745, ¶ 25. The trial court did not abuse its discretion in striking the First Amended Complaint undеr the circumstances.
{¶36} Here, Mr. Padula ignored the trial court‘s January 16, 2014 judgment entry directing him to plead supporting facts, and merely stated an unsupported conclusion that he is owed money. He neither pled what money he is owed, nor provided factual support which would entitle him to any relief. This is insufficient as a matter of law to sustain a claim for unpaid benefits or commissions. See State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324 (1989) (“unsupported conclusions of a complaint are not considered admitted . . . and are not sufficient” to withstand judgment as a matter of law). Accordingly, the trial court did not act in an arbitrary, unreasonable, or unconscionable manner in granting Appellees’ motion to strike the Amended Complaint. See Blakemore, 5 Ohio St.3d at 219 (holding that an abuse of discretion is
{¶37} Moreover, to the extent any facts regarding unpaid compensation are pled in the First Amended Complaint, they appear to relate to monies allegedly owed for deals that closed after, not prior to, Mr. Padula‘s termination. A claim for such monies is barred by the express language of the parties’ integrated contract. Section 2 of the Employment Agreement states that Mr. Padula‘s compensation was payable only “[d]uring the Term of Employment” which, as discussed, was for a presumptive two-year term subject to earlier terminatiоn at any time for any lawful reason. Note 3 of the Commission Plan, which is part of the Employment Agreement, states that an “[i]ndividual must be an employee of the company for commission to be paid.”
{¶38} For all of the reasons discussed, Mr. Padula‘s breach of contract and declaratory judgment claims fail as a matter of law. Mr. Padula‘s first and second assignments of error are overruled.5
Assignment of Error Number Three
THE TRIAL COURT ERRED BY DISMISSING PADULA‘S PROMISSORY ESTOPPEL CLAIMS PURSUANT TO
{¶39} In his third assignment of error, Mr. Padula argues that Appellees should be estopped from ignoring “promises made by inducement - the promise of two years of
{¶40} To succeed on a promissory estoppel claim, a party must shоw (1) a clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and foreseeable; and (4) damages caused by that reliance. Rigby v. Fallsway Equip. Co., Inc., 9th Dist. Summit No. 20985, 2002-Ohio-6120, ¶ 25. Mr. Padula‘s promissory estoppel claim fails for several reasons.
{¶41} First, the Term Sheet does not support a claim for promissory estoppel. This Court has held that it was the parties’ manifest intent to not be bound by the Term Sheet unless a “definitive agreement” was negotiated, drafted, and signed. Under these circumstances, Mr. Padula‘s reliance on the Term Sheet as a promise to sell CCG to him was unreasonable as a matter of law. A promissory estoppel claim based on preliminary negotiations cannot succeed when the preliminary negotiations specify that they are non-binding, and that no contract exists until a final, formal agreement is written and signed. See Mansfield Square, 2008-Ohio-6422, at ¶ 4, 20, 23-24.
{¶42} Mr. Padula‘s promissory estoppel claim fails also with respect to his term of employment and compensation. Promissory estoppel provides an equitable remedy, and does not apply to statements made prior to a written contract when the contract covers the same subject matter. See Olympic Holding Co., L.L.C. v. ACE Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, ¶ 39-40; Borowski v. State Chem. Mfg. Co., 97 Ohio App.3d 635, 643 (8th Dist.1994); Worthington v. Speedway SuperAmerica LLC, 4th Dist. Scioto No. 04CA2938, 2004-Ohio-5077, ¶ 15. As such, Mr. Padula‘s claim that he resigned his former employment and came to CCG
{¶43} It also must be noted that Mr. Padula does not plead that any promise, oral or written, was made outside of the documents attached to the Complaint. The parties agree, and this Court holds, that the Employment Agreement and Covenants of Employee are binding contracts. Promissory estoppel is an equitable remedy that only comes into play when the requisites of a contract are not met, yet the promise should be enforced to avoid injustice. See Olympic Holding Co. at ¶ 39. Indeed, Mr. Padula has pled promissory estoppel only “[i]n the alternative” if the court should determine that the exhibits to the Complaint “do not constitute validly enforceable contracts.” Aсcordingly, no cause of action based in promissory estoppel will lie regarding Mr. Padula‘s term of employment or claim that he was entitled to additional compensation, where valid, binding contacts govern these matters, and no additional or supplemental promises have been alleged.
{¶44} Further, this Court has held that, for the promissory estoppel exception to the at-will employment doctrine to apply, there must be a clear and unambiguous promise of job security.7 Rudy v. Loral Defense Sys., 85 Ohio App.3d 148, 154 (9th Dist.1993). Mr. Padula‘s Complaint does not allege a promise, either oral or written, that clearly and unambiguously
{¶45} Mr. Padula‘s third assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT ERRED BY DISMISSING PADULA‘S UNJUST ENRICHMENT / QUANTUM MERUIT CLAIMS PURSUANT TO
{¶46} In his fоurth assignment of error, Mr. Padula claims that he should be able to pursue a claim for unjust enrichment and quantum meruit where his contract claim has failed. Mr. Padula‘s argument lacks merit.
{¶47} A claim for unjust enrichment, or quantum meruit, is an equitable claim based on a contract implied in law, or a quasi-contract. See Hummel v. Hummel, 133 Ohio St. 520, 525-528 (1938); see Coyne v. Hodge Const., Inc., 9th Dist. Medina No. 03CA0061-M, 2004-Ohio-727, ¶ 5, fn. 3 (the elements of unjust enrichment and quantum meruit are identical). Unjust enrichment occurs under Ohio law “when a party retains money or benefits which in justice and equity belong to another.” Liberty Mut. Ins. Co. v. Indus. Commn. of Ohio, 40 Ohio St.3d 109, 111 (1988), quoting Star-Clean of Lexington, Inc. v. Stanley Steemer International., Inc., 2 Ohio
{¶48} Ohio law does not permit recovery under the theory of unjust enrichment when an express contract covers the same subject. See Ullmann v. May, 147 Ohio St. 468, 475, 478-79 and paragraph four of the syllabus (1947); Wochna v. Mancino, 9th Dist. Medina No. 07CA0059-M, 2008-Ohio-996, ¶ 18. Mr. Padula concedes in his appellate brief that a claim for unjust enrichment cannot be sustained when there is an express contract related to the same subject matter.
{¶49} Mr. Padula‘s unjust enrichment claim contends that, “Defendants unjustly accepted, retained, benefitted and/or been enriched [sic] from the services provided by Plaintiff without paying for them.” Mr. Padula asks to be compensated for the reasonable value оf his services under the equitable unjust enrichment theory. However, the terms of Mr. Padula‘s compensation are set forth in Section 2 of the Employment Agreement and under the Commission Plan that is part of the Employment Agreement. Mr. Padula admits, and pleads in his Complaint, that the Employment Agreement is a binding contract. Thus, by his own admission, Mr. Padula may not seek to recover compensation under an unjust enrichment theory when an express, valid contract governs his compensation.
{¶50} Mr. Padula nonetheless invites this Court to hold that, because the Term Sheet is not a binding agreement, he should be allowed to pursue under an unjust enrichment theory the
Assignment of Error Number Five
THE TRIAL COURT ERRED BY DISMISSING PADULA‘S COMMERCIAL BAD FAITH CLAIMS PURSUANT TO
{¶51} In his fifth assignment of error, Mr. Padula argues that the trial court erred in dismissing his bad faith claim based on obligations of good faith and fair dealing purportedly contained in the parties’ agreеments under
{¶52} The 2001 Official Commentary, Note 1, to
This section does not support an independent cause of action for failure to perform or enforce in good faith. Rather, this section means that a failure to perform or enforce, in good faith, a specific duty or obligation under the contract, constitutes a breach of that contract***. This distinction makes it clear that the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they arе created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.
III
{¶54} Each of Mr. Padula‘s assignments of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals аt which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DANIEL F. LINDNER, Attorney at Law, for Appellant.
STEVEN M. MOSS and ROBERT A. ZIMMERMAN, Attorneys at Law, for Appellees.
KATIE TESNER, Attorney at Law, for Appellees.