concurring. I concur in the determination of the majority to withdraw the opinion previously voted off the calendar, but do so on the basis of my prior dissent to such majority opinion. I would withdraw the prior opinion and redraft such, affirming the court of appeals as set forth and discussed within my dissent.

The previous opinion in the above-captioned matter, 64 Ohio St.3d 60, 591 N.E.2d 1228, is hereby withdrawn and further consideration of the cause by this court is being taken sua sponte based upon the briefs and documents previously submitted.