[Cite as Erwin v. Erwin,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

LISA M. ERWIN C.A. No. 13CA0009

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE VINCENT LEE ERWIN COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 10-DI-0219

DECISION AND JOURNAL ENTRY

Dated: March 10, 2014

MOORE, Presiding Judge.

{¶1} Vincent L. Erwin (“Husband”) appeals from the judgment of the Wayne County

Court of Common Pleas. This Court affirms.

I.

{¶2} On July 26, 2010, the trial court issued a decree dissolving the marriage between

Husband and Lisa M. Erwin (“Wife”). The decree of dissolution incorporated the parties’

separation agreement. In the separation agreement, the parties agreed that Husband would retain

the marital residence on the condition that he would refinance or remove Wife’s name from any

mortgages associated with the residence within ninety days and that, until such time as he

obtained a release of Wife’s liability on such mortgages, he would hold Wife “harmless on the

obligations of the mortgage(s)[.]” The parties agreed that if Husband failed to obtain a release of

Wife from all further liability within ninety days, then the marital residence would “be 2

immediately offered for sale through public auction,” and the terms of the auction would “be

agreed upon and determined through an auction contract executed by both parties.”

{¶3} Further, in the separation agreement, the parties agreed to the division of their

retirement benefits as follows:

The parties acknowledge that both parties have accumulated retirement funds in both public and private accounts in their sole names through their respective employment positions and have agreed upon the division of these accounts as follows:

A. A Qualified Domestic Relations Order (QDRO) shall issue equally dividing the vested value of Wife’s retirement account accumulate[d] through Wooster Eye Center, as of the date of the court order which terminates her marital relationship or the nearest date of value established by the plan administrator, minus the amount of any unpaid loan proceeds on the account. Wife shall assume full responsibility of the repayment of the loan thereupon in the approximate amount of $5,300[ ]without further liability upon by Husband;

B. A Qualified Domestic Relations Order (QDRO) shall issue equally dividing the value of Husband’s retirement account accumulated through Morton Salt, as of the date of the court order which terminates his marital relationship or the nearest date of value established by the plan administrator. Husband shall assume full responsibility for repayment of any and all loans thereupon without further liability by Wife[.]

***

D. The parties acknowledge this to be a fair and equitable division of their retirement accounts.

After the decree was issued, the parties prepared two QDROs, one dividing Wife’s plan known

as “Wooster Ophthalmologists, Inc. Retirement Savings Plan” and one dividing Husband’s plan

known as “K+S/Morton Salt 401(k) Savings Plan.”

{¶4} In 2012, Wife filed a motion in the trial court asking that Husband be found in

contempt for his failure to make timely mortgage payments on the mortgages securing the

marital residence, his failure to secure a release of Wife from liability on the mortgages, his

failure to pay her one half of the equity in the marital residence, and his failure to divide a 3

pension account. Wife further asked the court to order an auction of the marital residence in

accordance with the terms of the separation agreement.

{¶5} The trial court held a hearing before a magistrate on Wife’s motion, and the

magistrate issued a decision on August 30, 2012. On the same date that the magistrate issued his

decision, the trial court issued an order adopting the magistrate’s decision and independently

entering judgment. The trial court found Husband in contempt for failing to comply with the

decree in regard to holding Wife harmless on the mortgages, and ordered that the property be

listed and processed for auction. The court ordered Husband to pay a fine of $500, which the

court suspended on the condition that he comply with the orders of the court in regard to the

marital residence. The court further ordered the parties to prepare a QDRO dividing Husband’s

marital portion of his pension plan. The court then ordered that Husband be responsible for

$1,500 of Wife’s attorney fees.

{¶6} Thereafter, Husband filed objections to the magistrate’s decision. On February 8,

2013, the trial court issued an order stating, “Each of [Husband]’s objections have been

considered and are overruled. The [m]agistrate’s [d]ecision is correct as a matter of law and

supported by the evidence. The [m]agistrate’s [d]ecision is adopted by the court in its entirety.”

On February 22, 2013, Husband filed a motion in the trial court requesting that it issue a final,

appealable order. On the same date, Husband filed a notice of appeal from the February 8, 2013

order. On March 8, 2013, the trial court issued another order pursuant to Husband’s motion for a

final appealable order. Husband now presents three assignments of error for our review. We

have consolidated our discussion of Husband’s second and third assignments of error to facilitate

our review. 4

II.

{¶7} Initially, we note that Appellee has argued that the February 8, 2013 order is not a

final, appealable order. Section 3(B)(2), Article IV of the Ohio Constitution limits this Court’s

appellate jurisdiction to the review of final, appealable orders. In the absence of a final,

appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction. Lava

Landscaping, Inc. v. Rayco Mfg., Inc., 9th Dist. Medina No. 2930-M,

, *1 (Jan.

26, 2000).

{¶8} A trial court may not effectuate a final appealable order simply by adopting a

magistrate’s decision. Harkai v. Scherba Industries, Inc.,

(9th

Dist. 2000) (“The judge is not permitted to conclude the case by simply referring to the

magistrate’s decision, even though it may appear more expedient to do so.”). Instead, “matters

initially heard by a magistrate are not final until a judge ‘separately enter[s] his or her own

judgment setting forth the outcome of the dispute and the remedy provided.’” Thompson v.

Thompson, 9th Dist. Medina No. 07CA0023-M,

, quoting

.

{¶9} Here, the trial court independently entered judgment through its August 30, 2012

order, which was stayed upon Husband’s filing of his objections pursuant to Civ.R. 53(D)(3)(i).

We are aware of no requirement for the court to enter independent judgment again in its

February 8, 2013 order, in which it overruled the objections to the magistrate’s decision. See

Miller v. Miller, 9th Dist. Medina No. 10CA0034-M,

. Accordingly, the March

8, 2013 order was superfluous, and was entered without the trial court having jurisdiction to do

so, as the notice of appeal from the February 8, 2013 order had already been filed. See State ex

rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas,

,

(“the filing of the notice of appeal divests the trial court of 5

jurisdiction to proceed with the adjudication during the pendency of the appeal”). As the

February 8, 2013 order was a final appealable order, we conclude that we have jurisdiction

relative to this appeal.

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S DECISION TO DIVIDE [HUSBAND]’S SECOND PENSION IS AN ABUSE OF DISCRETION, IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW.

{¶10} In his first assignment of error, Husband maintains that the trial court erred in

adopting the magistrate’s decision, which he claims modified the terms of the parties’ separation

agreement in regard to the division of their retirement accounts. We disagree.

{¶11} “[T]he decision to adopt, reject, or modify a magistrate’s decision lies within the

discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.”

Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055,

, ¶ 5. However, “we

consider the trial court’s action with reference to the nature of the underlying matter.” Tabatabai

v. Tabatabai, 9th Dist. Medina No. 08CA0049-M,

, ¶ 18.

{¶12} “A trial court is without authority to modify a property division in a separation

agreement which has been incorporated into a dissolution of marriage decree.” Bond v. Bond,

(9th Dist. 1990). “Where there is confusion over the interpretation of a

particular clause in a separation agreement, the trial court has the power to hear the matter,

clarify the confusion, and resolve the dispute.” Musci v. Musci, 9th Dist. Summit No. 23088,

, citing In re Dissolution of Marriage of Seders,

(9th Dist. 1987).

{¶13} In a footnote in Husband’s brief, he indicates that “[t]here is no clear indication in

the trial court’s decision as to what its rational[e] was for ordering the division of the defined 6

benefit pension. The court merely ordered that it be done, but did not explain whether this was a

modification, an interpretation or some other legal device.” In the magistrate’s decision, the

magistrate noted that Husband had accumulated both a 401k and a pension through his

employment at Morton Salt. However, the provision pertaining to Husband’s retirement account

did not specify which of these retirement accounts was subject to division. Husband maintained

that the provision covered only the 401k, and that, to modify this provision, Wife would have

been required to file a motion pursuant Civ.R. 60(B). The magistrate responded to this argument

by stating that the court had “discretion to review the agreement and based upon the evidence

and testimony, reach a decision on what the parties’ intent was at the time of the agreement.”

The magistrate determined that the parties intended to equally divide the marital portions of their

retirement benefits. Based upon the analysis utilized by the magistrate and adopted by the trial

court, we conclude that the court divided the pension based upon its power to resolve an

ambiguity contained in a separation agreement. Therefore, we will first address whether the

provision at issue was ambiguous.

Ambiguity

{¶14} “Separation agreements are contracts, subject to the same rules of construction as

other contracts, to be interpreted so as to carry out the intent of the parties.”

, citing

Brown v. Brown,

(11th Dist. 1993). “The intent of the parties is

presumed to reside in the language they chose to use in their agreement.” Hare v. Isley, 9th Dist.

Summit No. 26078,

, quoting Graham v. Drydock Coal Co.,

(1996). Accordingly, when that language contained within the contract is

unambiguous, “a court may look no further than the writing itself to find the intent of the

parties.” Sunoco, Inc. (R & M) v. Toledo Edison Co.,

,

, ¶ 7

37. Ambiguity refers to “the condition of admitting of two or more meanings, of being

understood in more than one way, or of referring to two or more things at the same time[.]”

Robinson v. Beck, 9th Dist. Summit No. 21094,

, ¶ 25, quoting Boulger v.

Evans,

(1978). The determination of whether a contract is ambiguous is

a question of law that this Court reviews de novo. Salter v. Salter, 9th Dist. Summit No. 26440,

, quoting Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M, 2012-Ohio-

2001, ¶ 9.

{¶15} Here, Husband maintains that the separation agreement unambiguously provided

for the division of his 401K account and not his pension plan. In support, Husband notes that the

phrase “retirement account” is singular, and the provision refers to loans that may exist on the

account. Husband maintains that no loans could have existed against his pension account.

Therefore, Husband argues that the singular “retirement account” referenced in the separation

agreement unambiguously refers to his 401k account.

{¶16} Based upon our review of the parties’ separation agreement, we conclude that the

term “retirement account” was ambiguous, as this term could be viewed as contemplating the

division of the entirety of the Morton Salt retirement account rather than one specific 401(k)

account. Neither the names nor the types of Husband’s specific retirement accounts are listed in

the provision dividing the retirement accounts. Compare Semmelhaack v. Semmelhaack, 9th

Dist. Wayne No. 12CA0035,

(separation agreement not ambiguous as

to which plans were subject to division where it provided that the parties would equally divide

Husband’s “interest in a pension provided through his employer, UPS, said Plan being known as

the UPS/IBT Full-Time Employee Pension Plan.”). We do not agree with Husband that the

singular form of the phrase “retirement account” and the reference to potential loans on the 8

account unambiguously requires division of his 401k account and not his pension plan. Both of

these accounts were retirement accounts which Husband accumulated through Morton Salt, and

both could be viewed as comprising the entirety of the retirement account through Morton Salt.

Accordingly, we conclude that this term of the separation agreement was ambiguous.

Testimony of Intent

{¶17} Husband next argues that the trial court’s determination as to the parties’ intent

relative to the retirement accounts was against the manifest weight of the evidence. In

determining whether a trial court’s ruling is against the weight of the evidence:

[t]he [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.

(Internal quotations and citations omitted.) Eastley v. Volkman,

, 2012-Ohio-

2179, ¶ 20. “In weighing the evidence, the court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Id. at ¶ 21.

{¶18} At the hearing before the magistrate, Husband affirmed that he has two types of

retirement accounts through Morton Salt: a 401k and a pension. Husband maintained that Wife

was aware of the existence of both accounts. He further testified that the parties discussed the

pension plan during their negotiations prior to entering into the separation agreement, and the

parties agreed that Husband would retain the pension plan in exchange for Wife receiving certain

benefits relative to their minor son. However, Wife testified that she was not aware of the

existence of Husband’s pension plan at the time they entered into the separation agreement, and

she did not become aware of the pension plan until months after the decree was issued, when a

third party informed her of the plan’s existence. The magistrate specifically found Wife’s 9

testimony more credible. In making this determination, the magistrate also noted that, had the

parties agreed for Husband to retain his pension account, the parties could easily have specified

this in the separation agreement. We cannot say that the trial court’s decision to credit Wife’s

version of these events was against the manifest weight of the evidence. See

.

Clarifying the Ambiguity

{¶19} After considering the parties’ intent along with the provisions of the separation

agreement, the court clarified the ambiguity in regard to the retirement accounts by interpreting

the separation agreement as dividing all of the marital portions of the parties’ retirement accounts

by QDRO. Husband argues that the trial court erred in this clarification. “The trial court has

broad discretion in clarifying ambiguous language [in a separation agreement] by considering not

only the intent of the parties but the equities involved.” Musci,

, citing

In re Marriage of Seders,

. Therefore, “[a]bsent a showing of an abuse of

discretion, an interpretive decision by the trial court cannot be disturbed upon appeal.”

, citing Blakemore v. Blakemore,

(1983). An abuse of discretion

connotes that a trial court was unreasonable, arbitrary or unconscionable in its ruling.

.

{¶20} Here, Husband’s argument focuses on the trial court’s reliance on Wife’s

testimony that she was unaware of the pension plan. From this, he concludes that neither party

intended to divide the pension, and thus the court could not have interpreted the separation

agreement as dividing what Wife claims to be an unknown asset. However, we do not read the

magistrate’s decision as finding that the parties’ specifically intended to divide the pension;

instead, the magistrate determined that the parties’ intended to divide all of the retirement

accounts accumulated during marriage. In making this determination, the magistrate referenced 10

two other terms of the separation agreement and the parties’ testimony. First, the separation

agreement provides that the parties desired to “fully and completely compromise, settle and

adjust between themselves all marital rights and claims respecting the property of each other[.]”

Second, the agreement provided that it was a “full and complete settlement of all spousal support

and property rights between the parties.” The magistrate concluded that these provisions, when

read in combination with the retirement provision, and when taking into consideration that

testimony and credibility of the parties, served as the basis for clarifying the separation

agreement to provide for a global division of the parties’ retirement accounts accumulated

through their employers. Therefore, it appears that the magistrate read the separation

agreement’s reference to Husband’s “retirement account” as a classification of all property fitting

this description as opposed to a reference to a particular account. Although Wife may have been

unaware of which specific accounts comprised this class of property, the trial court reasonably

could have interpreted the parties’ intent as equally dividing the marital portions of all property

contained within this classification. Accordingly, we cannot say that the trial court’s

clarification was an abuse of discretion.

{¶21} Accordingly, Husband’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN ORDERING THAT THE PARTIES’ MARITAL RESIDENCE BE SOLD, IN REQUIRING [HUSBAND] TO PAY [WIFE] ONE HALF OF THE EQUITY PRESENT THEREIN, AND IN FAILING TO FIND THAT A NOVATION HAD OCCURRED BETWEEN THE PARTIES. SUCH DETERMINATION IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, IS CONTRARY TO LAW, AND CONSTITUTES AN ABUSE OF DISCRETION.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN FINDING [HUSBAND] IN CONTEMPT OF COURT AND IMPOSING SANCTIONS AND IN REQUIRING HIM TO PAY 11

ATTORNEY FEES TO [WIFE]. SUCH DECISION CONSTITUTES AND ABUSE OF DISCRETION, IS CONTRARY TO LAW, AND CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶22} In Husband’s second and third assignments of error, he argues that the trial court

erred by ignoring a post-decree novation, finding him in contempt of court, and enforcing the

original provisions of the separation agreement in regard to the marital residence. Additionally,

in his third assignment of error, Husband argues that the trial court erred in ordering that he pay

$1500 of Wife’s attorney’s fees.

{¶23} Although a trial court’s action on a magistrate’s decision lies within the discretion

of the trial court, we consider that action “with reference to the nature of the underlying matter.”

Barlow,

, at ¶ 5; Tabatabai,

, at ¶ 18.

{¶24} In his second and third assignments of error, Husband premises the majority of his

arguments on the existence of a novation relative to the parties’ agreement as to the marital

residence. He maintains that the existence and terms of this novation were established by the

weight of the evidence, and the trial court erred in failing to find that a novation was created. As

Husband’s arguments pertain to the weight of the evidence, we must “weigh[] the evidence and

all reasonable inferences, consider[] the credibility of witnesses and determine[] whether in

resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”

(Internal quotations and citations omitted.) Eastley, 132 Ohio St.3d at ¶ 20.

{¶25} In regard to contracts of novation, in Williams v. Ormsby,

,

, the Ohio Supreme Court explained that:

A contract of novation is created where a previous valid obligation is extinguished by a new valid contract, accomplished by substitution of parties or of the undertaking, with the consent of all the parties, and based on valid consideration. A novation can never be presumed but must be evinced by a clear and definite 12

intent on the part of all the parties to the original contract to completely negate the original contract and enter into the second.

(Internal quotations and citations omitted.) See also Isley v. Isley, 9th Dist. Summit No. 26078,

.

{¶26} Here, Husband concedes that “[i]t is clear that the original [s]eparation

[a]greement which awarded [Husband] the parties’ marital residence also imposed upon him the

obligation to remove [Wife]’s name from the indebtedness thereupon, or cause the home to be

sold in accordance with the terms of the [s]eparation [a]greement.” The separation agreement

provided that if Husband did not remove Wife from liability associated with the home, then the

home would be sold through auction. However, Husband maintains that the trial court erred

ordering the auction of the marital residence and in finding him in contempt because, after the

decree was issued, the parties entered into a novation, in which they agreed that Husband would

sell the house once the housing market had improved and once he had completed repairs on the

house. Husband then maintains that, because the court erred in finding him in contempt, it also

erred in imposing sanctions and requiring him to pay Wife’s attorney’s fees.

{¶27} At the hearing before the magistrate, Husband acknowledged that, after the decree

was issued, he had made one house payment in August of 2010. However, he then quit making

monthly mortgage payments, resulting in the lender filing a complaint in foreclosure on April 13,

2011, and he did not again begin making mortgage payments until July of 2011. After

foreclosure proceedings commenced, Wife agreed to sign an application for a loan modification

submitted to her by Husband. Foreclosure proceedings were terminated on November 9, 2011.

Husband maintains that Wife’s approval of the mortgage loan modification evidences the parties’

novation. 13

{¶28} Wife testified that she was served with foreclosure papers in April of 2011, and

she was unaware at that point that Husband had not been making payments on the mortgage.

Wife acknowledged that she signed the loan modification agreement because Husband had

informed her that if she did not sign, he was not going to make the mortgage payments, and she

did not want the house to be foreclosed. Wife acknowledged that, in several discussions she had

with Husband after the decree was issued, she agreed with Husband that he should improve the

house prior to placing it for sale.

{¶29} The magistrate noted that, although the parties may have agreed to delay the sale

of the property, it should be sold in a timely fashion. Accordingly, the magistrate rejected

Wife’s request to have the property listed for sale, and instead recommended that the real estate

be auctioned immediately in accordance with the separation agreement. The magistrate also

concluded that even if the court were to accept Husband’s argument that Wife had agreed that

the mortgage payments did not have to be made in a timely fashion, there was no evidence that

Wife agreed to a foreclosure, and Husband did not dispute Wife’s testimony that, as a result of

the foreclosure, Wife’s credit had suffered. Further, the magistrate noted that there was no

evidence presented on whether, if Husband had attempted to make good faith payment on the

mortgage, the foreclosure proceedings could have been prevented. The magistrate recommended

that Husband be found in contempt on the violation of the provision to hold Wife harmless. The

trial court adopted the magistrate’s decision, finding him in contempt, and sanctioning him to a

suspended $500 fine.

{¶30} Assuming without deciding that the parties could properly modify a separation

agreement incorporated in a dissolution decree through a novation of the nature alleged by

Husband, we cannot say that the trial court’s failure to determine that there existed a novation 14

was against the weight of the evidence. Upon weighing the credibility of the testimony of the

parties, the trial court determined that Wife did not intend to modify the separation agreement so

as to eliminate husband’s obligation to ultimately refinance the mortgage, hold her harmless on

the obligation, and pay her share of equity in accordance with the separation agreement.

Husband does not explain how the trial court lost its way in making its determination. See

Eastley,

(in making credibility determinations, court of appeals must

be mindful of the presumption in favor of the finder of fact). Moreover, in order for a novation

to exist there must be consideration. See Williams,

. Husband maintains

that Wife received consideration by the cessation of foreclosure proceedings. However, we fail

to see how this benefit could serve as consideration where the separation agreement already

obligated Husband to hold Wife harmless on the mortgage and remove her from liability on the

home. Although Husband and Wife testified that they had agreed to Husband postponing the

sale so that he could make improvements on the home to effectuate a better sale price, from

which Wife would benefit, it does not appear from the record that Wife meant for this agreement

to negate the terms of the separation agreement as to holding her harmless on the mortgages.

Instead, Wife testified that she was not aware that Husband had stopped making mortgage

payments prior to receiving the notice of the foreclosure proceedings, and there was no evidence

that she consented to foreclosure proceedings. Thus, we conclude from the record that the trial

court did not lose its way given the absence of a clear and definite intent on the part of Wife to

completely negate the terms of the separation agreement. See id. at ¶ 18 (“A novation can never

be presumed but must be evinced by a clear and definite intent on the part of all the parties to the

original contract to completely negate the original contract and enter into the second.”). To the 15

extent that Husband argues in his second and third assignments of error that the trial court erred

in this respect, his assignments of error are overruled.

{¶31} Husband further argues that, even if there existed no valid novation, he in good

faith believed that the parties’ had reached an understanding that he postpone sale of the home.

Therefore, he argues that the trial court should not have found in him in contempt. Husband

does not fully develop this argument with citations to authority and references to the record. See

App.R. 16(A)(7) (Appellant’s argument in his brief to include “citations to the authorities,

statutes, and parts of the record on which appellant relies.”). Nevertheless, we find Husband’s

argument misplaced. The trial court did not find Husband in contempt for his failure to sell, or to

remove Wife from liability on, the house within ninety days. Instead, the trial court found

Husband in contempt for failing to abide by the provision that he hold Wife harmless on the

mortgages until such time as she was removed from liability. We can locate nothing in the

record demonstrating any understanding on the part of Husband that he believed in good faith

that Wife agreed for him to cease making home mortgage payments. Accordingly, as Husband

has limited his argument regarding the contempt finding to the evidence of novation or his

understanding of a post-decree agreement, his second and third assignments of error are

overruled to this extent.

{¶32} Husband also argues that the trial court erred in awarding Wife attorney fees.

However, Husband’s sole argument in support pertains to our decision in Miller v. Miller, 9th

Dist. Wayne No. 09CA0025,

. Husband maintains that Miller stands for the

proposition that a court cannot sanction a party without a finding of contempt. However, Miller

is inapposite. In Miller, the trial court did not make a contempt finding, whereas here, the trial

court did find Husband in contempt. See id. at ¶ 26-27. As Husband has limited this argument 16

to his reliance on Miller, his third assignment of error is overruled to the extent he argues that the

trial court erred in awarding attorney’s fees to Wife.

{¶33} Accordingly, Husband’s second and third assignments of error are overruled.

III.

{¶34} Husband’s assignments of error are overruled. The decision of the trial court 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 Wayne, 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 at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT 17

BELFANCE, J. CONCURS.

CARR, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

LON R. VINION, Attorney at Law, for Appellant.

RENEE JACKWOOD, Attorney at Law, for Appellee.