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Home , Assumption of risk, Intervening cause, Rescue doctrine

IN TIIE SUPREME COURT OF OHIO

KIRK DUQUETTE, et. al.

Appellants On Appeal from the Hamilton County Court of Appeals, First Appellate District V.

CATHERINE M. HUEBNER, et. al. Court Appeals Case No. C-o9o522 Appellees

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPFI LANTS KIRK DUOUETTF AND VIRGINIA DUOUE'I"rL'

Derek W. Gustafson 005144 Suite i9r9 1014 Vine St. Cincinnati, Ohio 45202 Tel. 513-241-7880 Fax. 513-768-4342

COUNSEL FOR APPELLANTS, KIRK AND VIRGINIA DUQUETTE

Stephen Patsfall, Esq. Patsfall, Yeager & Pflum LLC Suite 128o Textile Bldg. 205 W. Fourth St. Cincinnati, Ohio 45202 (513) 721-4500 Fax No. (513) 639-7554

COUNSEL FOR APPELLEE CATIIERINE M. HUEBNER TABLE OF CONTENTS

Page

EXPLANATION OF WI3Y THIS CASE IS A MATTER OF GREAT PUBLIC AND GENERAL INTEREST 1

STATEMENT OF THE CASE AND FACTS 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF 6

Proposition of Law No. i: The of an based upon plaintiff's alleged negligent conduct is merged with the defense of comparative . 6

Proposition of Law No. a It is foreseeable that a homeowner would attempt to repair or mitigate damage to his home. 7

Proposition of Law No. 3: A plaintiff's repair of property damage is not an intervening cause where the property damaged by defendant's negligence contributes to the mechanism of plaintiffs injury. 8

Proposition of Law No. 4: Where both parties are negligent a material issue of fact remains for resolution by a jury as to who's negligence was the of the injury. 11

CONCLUSION 12

CERTIFICATE OF SERVICE 13

APPENDIX Amx. Page

Opinion and Judgment Entry of Hamilton County Court of Appeals (March 17,2010) EXPLANATION OF WHY'I'HIS CASF. IS A MATER OF GREAT PUBLIC AND GENERAL INTERES'I'

This case presents the issue of whether the defense of intervening or superseding cause based upon allegations of a plaintift's negligent conduct merge with the principles of .

Ohio adopted comparative negligence in i98o.' Since then, this Court has ruled that assumption of the risk merged with comparative negligence.2 The lower courts of Ohio have also held that the doctrines of and rescue also merge with comparative negligence.3

The doctrine of intervening or superseding cause continues to exist. While an inteivening or superseding cause can be the act of someone other than the injured party, since the adoption of the comparative negligence statute a number of cases have arisen where the superseding cause is alleged to be the plaintiff s actions.4 Appellants submit that these cases are merely attempts by defendants to avoid the operation of the comparative negligence statute.

Under comparative negligence principles, a plaintiff may recover as long as his/her negligence does not exceed the negligence of the defendant. As this

Court noted in ruling that assumption of the risk merged with comparative negligence a defendant can circumvent the comparative negligence statute

1 See former O.R.C. 2315.19, currently O.R.C. 2315-33• z!fnderson v. Ceecardi, 6 Ohio St.3d iio, 451 N.E.2d 78o (1983) 3 State FarTn v. Ballentine, 2oo1 WL 20548 (ltti, Dist. 2000); Pleasant v. Harbourt, 2000 WL 1824887 (3rd Dist. 2000); Asbrock v. Brown, 1997 WL 665881 (12th Dist. 1997); Croft v. B. & O. Railroad, 1986 WI, 5398 (9th Dist. 1986); Mitchell v. Ross, 14 Ohio ApP.3d 75, 47o N.E.2d 245 (8th Dist. 1984); Bradley v. Snyder, 1988 WL 65607 (4t Dist. 1988). 4 For example see State Farrn v. Vanhoessen, 114 Ohio App.3d lo8, 682 N.E.2d 1048 (1996); Knisley v. Bray, 2004 Ohio App. Lexis (Zott, Dist. 2004)

l entirely by asserting the assumption of the risle defense alone.5 Further, in holding that the last clear chance doctrine merged with comparative negligence the Eighth District Court of Appeals stated that the intent of the legislature in enacting the comparative negligence statute was to impose liability upon the party whose negligence was greater, ratller than the party whose negligence was last in time.6 In this particular case and others in Ohio defendants have circumvented the comparative negligence statute by recasting the coniparative negligence of the plaintiff as an inteivening cause depriving the plaintiff of the benefit of the statute.7

By allowing a defendant to plead a plaintiffs negligence as an inteivening cause the decisions of the lower courts of this state have reached inconsistent results. In some cases plaintiffs have had there right determined under comparative negligence principles while others have had there complaints dismissed upon a judicial finding that their own conduct was an inteivening cause.8

In this matter, the Court of Appeals affirmed the granting of summary judgment on the basis that appellant's act of repairing the property damage to his

home was an intervening cause denying appellants the benefit of the comparative

negligence statute.

5 Anderson v. Ceecardi, 6 Ohio St.3d iio at 113, 451 N.E.2d 78o at -783 (1983) 6 Mitchell v. Ross, 14 Ohio App.3d 75 at 75, 47o N.E.2d 245, at 246 (8th Dist. 1984); 7 Anderson v. Ceccardi, 6 Ohio St.3d 1.10 at 113, 451 N.E.2d 78o at'783 (1983) 8 Compare State Farin v. Vanhoessen, 114 Ohio App.3d 1o8, 682 N.E.2d 1048 (1996) wherein the case was remanded for decision under comparative negligence principles with Knisley v. Bray, 2004 Ohio App. Lexis (ioth Dist. 2004) summary judgment granted on principle of intervening cause.

2 Further, the Court of Appeals opinion stated that it was not foreseeable that the appellant would repair the damage establishing by implication that a property owner does not have the right to repair damage to their own property.

'rhis case presents the opportunity to reiterate that property owners have the right to take reasonable steps to repair and or preserve their property.9

This case also provides an opportunity for this Court to further develop the law as to an intervening cause. Under Ohio law an intervening act must be capable of producing the injury without the original negligence, not be set in motion by the original negligence and not be a condition through which the original negligence operate to produce the injuiy.10 While these principles are well established there are few cases wherein appellate courts have applied these principles to particular facts leaving little guidance for trial courts. This case provides an opportunity for this Court to clarify when the original negligence produces an injury, when the intervening act is set in motion by the original

negligence and/or is a condition through which the original negligence operates

to produce an injury. For all of these reasons this Court should accept this case

for review.

STATEMENT OF THE CASE AND FACTS

On April 12, 2007 appellee was operating a motor vehicle. Appellee

stopped in appellants' driveway for the purpose of turning around. After

9 See Lake Shore &Michigan Southern Railway Co. v. Beall, 6 Ohio C.D. 250 (1895) affd. 53 O.S. 674. lo Reed v. Weber, 83 Ohio App.3d 437, at 442, 615 N.E.2d 253 at 256 (r5t Dist. 1992); See also Mudrich v. Standard Oil Co. 153 Ohio St. 31, 9o N.E.2d 859 (1950).

3 stopping, appellee failed to put the car into reverse and inadvertently accelerated forward striking appellants' vehicle wliich was parked in the driveway. The force of the collision pushed appellants' vehicle several feet forward and three to four feet through the garage door of appellants' home. Plaintiffs car has a standard transmission and was in gear with the parking brake on at the time of the incident.

Police were called to the scene and an accident report was talcen. Appellee offered no assistance to repair the damage to the garage door or car and did not call anyone to repair the damage. Appellee left appellants' home leaving them to repair the damage she caused.

Appellants' garage door was a multi-panel door which opened and closed with the assistance of springs. The door was attached to an electric garage door opener.

Later in the day appellant Kirk Duquette attempted to remove the vehicle from the garage door to permit the vehicle to be towed and in attempt to secure the garage area. Appellant was unable to lift the door with the electric garage door opener because the mechanism was damaged in the accident. Additionally, the spring system was damaged in the accident.

Appellant pushed the garage door up with one hand while pushing the vehicle with the other hand. Appellant chose to remove the car in this manner to avoid further damage to the garage door and car. The garage door lifted up and then came back down pinning his right hand between the garage door and the hood of the car. Appellant sustained four broken bones in his right hand.

Appellant has undergone two surgeries to repair the broken bones in his hand

4 during which four plates were inserted into appellant's hand to reduce the fractures.

On October 28, 2oo8 appellants filed a complaint for personal injuries

against appellee. The complaint alleged that appellee was negligent in the

operation of her automobile. The cosnplaint also requested the court determine

the subrogation rights of appellants' health insurance carrier.

Appellee filed an answer to appellants' complaint asserting as an

an intervening cause. Medical Mutual, appellants' health

insurance carrier, filed an answer, counterclaim and cross claim. The

counterclaim and cross claim alleged Medical Mutual was entitled to recover

benefits paid to appellants pursuant to contractual subrogation rights.

Appellee filed a motion for sLUnmary judgment. The trial court granted

appellee's motion as to appellants on .Junc 30, 2009. On July 22, 2009 the trial

court granted summary judgment in favor of appellants and appellee on Medical

Mutual of Ohio's subrogation claims. Appellants filed a timely notice of appeal to

the First District Court of Appeals.ll

On March 17, 2010 the Court of Appeals affirmed the trial court holding

that appellant's action of moving the vehicle was an intetvening cause.

11 No appeal of the trial court's decision was filed by Medical Mutual.

5 ARGUMENT IN SUPPORT OF PROPOSI'PIONS OF LAW

Proposition of Law No. 1: The defense of an intervening

cause based upon a plaintiffs alleged negligent conduct is

merged with the defense of comparative negligence.

This Court has ruled that the defense of assumption of the risk has merged with comparative negligence.12 In reaching that decision this Court noted that where a plaintiffs conduct constitutes both and continued adherence to the doctrines would lead to the anomalous situation where a defendant could circumvent the comparative negligence statute by assei-ting assumption of risk alone.13 The Court stated that such a result was contraty to the intent of the legislature in enacting the comparative negligence statute.14

Appellate Courts of Ohio have also merged the last clear chance doctrine with comparative negligence based upon the rationale of Anderson,supra.15 The has also been determined to merge based upon this rationale.16

To permit defendants to argue that a plaintiffs negligent conduct constitutes an intervening cause allows them to ignore the intent of the legislature in adopting comparative negligence.

12 Anderson v. Ceccardi, 6 Ohio St.3d 110, 451 N.E.2d 780 (1983) 13 Id, at 113,451 N.E.2d 783. 14 Id. 15 State Farni v. Ballentine, 2001 WL 20548 (iltti Dist. 2000); Pleasant v. Harbourt, 2000 WL 1824887 (3rd Dist. 2000); Asbrock v. Brown, 1997 WL 665881(12th Dist. 1997); Croft v. B. & O. Railroad, 1986 WL 5398 (9th Dist. 1986); Mitchell v. Ross, 14 Ohio App.3d 75, 47o N.E.2d 245 (8th Dist. 1984); 16 Bradley v. Snyder, 1988 WL 65607 (4t Dist. 1988)

6 Further, it is clear that the trial court and appellate court failed to apply comparative negligence principles in granting summary judgment to appellee.

The First District Court of Appeals held that appellant's actions in moving the vehicle was an intervening cause because it was not foreseeable that he would on his own attempt to remove the vehicle. Clearly, appellants have been denied the benefit of the comparative negligence statute.17 In order to effect the intent of the legislature the defense of inteivening cause based upon a plaintiffs conduct must be merged with the defense of comparative negligence.

Proposition of Law No. 2 It is foreseeable that a

homeowner would attempt to repair or mitigate damage

to his home.

The First District Court of Appeals found that it was not foreseeable that

appellant would attempt to remove the vehicle from its entanglement with the

garage door. This decision in this case by implication stands for the proposition

that a homeowner may not attempt to repair or mitigate damage done to his/her

home. Ohio has long held that a person may take reasonable steps to preserve

property from damage.18

Further, appellant testified in his deposition that in moving the vehicle he

was attempting to secure the garage area from intruders and to protect his

property from further damage. Appellee admitted that a homeowner would want

their garage area secure from intruders. Despite this testimony in the record the

17 See current O.R.C. 2315•33• i$ Lake Shore &Michigan Soutliern Railway Co. v. Beall, 6 Ohio C.D. 250 (1895) affcl. 53 O.S. 674.

7 First District Court of Appeals held that while it was foreseeable that a repair would be made it was not foreseeable that appellant would attempt any repair.19

The concept that a homeowner is not legally allowed to take reasonable steps to

repair and preserve one's own property is completely foreign to American private

property concepts.

Additionally, as the eloquent Justice Cardozo once wrote: "Danger invites

rescue."20 Certainly, as a corollaiy damage requires repair. Appellant submits

that is foreseeable that he or someone at his request would repair the damage to

his home and car. His attempt to secure the garage of his home from intruders

and to make his vehicle available to be towed was foreseeable.

Pro_position of Law No. t: A plaintifPs repair of property

damage is not an intervening cause where the propertp

damaged by defendant's negligence contributes to the

mechanism of plaintifl's injury.

The lorver courts granted judgment in favor of appellee on the basis that

appellant Kirk Duquette's actions constituted an intervening cause. Under Ohio

law when an injury is the natural and probable consequence of negligent conduct,

the negligence of others which unites with the original offender does not relieve

the original offender from liability.21 To break a chain of causation, an

intervening act must be disconnected for the original negligence and must be an

efficient, independent and self-producing cause of the injury not foreseeable by

19 See decision of Court Appeals at page 3. 20 Wagner v. International Railway Co., 232 N.Y. 176, at i8o (1921) 21 Strother v. Hutchinson, 67 Ohio St.2d 282, 423 N.E.2d 467 ( 1981).

8 the negligent party.22 An intetvening act constitutes an independent cause if there was no connection or cause and effect relationship between the original and subsequent negligence. To be an intervening act, the act must be capable of producing the injury irrespective of the original negligence, not be set in motion by the original negligence and not be a condition on or through which the original negligence operated to produce the injurious resu1t.23

A review of the facts in this matter establish that the actions of appellant

Kirk Duquette did not constitute an intervening cause because his actions could not have produced the injury without the original negligence, were set in motion by the negligence of the appellee, and the injury was the result of a condition created by appellee's negligence.

Appellant was attempting to secure the garage area and remove the vehicle so that it could be towed. Appellant elected to push the vehicle out of the garage door in an attempt to avoid further damage to the car, door and home. The actions of appellant which resulted in his injury were the raising of the garage

door while pushing the vehicle. It was the broken condition of the garage door as

a result of appellee's negligence which made this action potentially dangerous.

The garage door in question was attached to an automated opener. To open the

door normally, appellant would push a button and the door would be opened by

an electric garage door opener. The force of the collision damaged the

mechanism of the opener preventing its use and required appellant or anyone

22 Queen Cify Terminals, Inc. V. Gen. Ani. Transp. Coi,13., 73 Ohio St.3d 6o9, 653 N.E.2d 661 (1995). 23 Reed v. Weber, 83 Ohio App.3d 437, at 442, 615 N.E.2d 253 at 256 (ist Dist. 1992); See also Mudrich v. Standard Oil Co. 153 Ohio St. 31, 9o N.E.2d 859 (1950).

9 else removing the vehicle to open the door manually. Even without the opener, the garage door prior to the incident had springs which assist in the opening of the door and hold the door in the open position. As such, appellant's action of opening the garage door could not have resulted in injury without the negligence of the appellee which damaged the door and its various mechanistns.

Consequently, appellant's actions could not have resulted in injuiy without appellee's negligence and is therefore not an inteivening cause.

Secondly, appellant's injuries were set in motion by the appellee's negligence. Appellee damaged the garage door mechanism's requiring the door to be opened manually. Further, appellee acknowledged in her deposition that the opening in the garage door was large enough for an intruder to enter into and that a home owner would not want an intruder into their garage area. A property owner may take reasonable steps to preserve property from damage.24 Appellant was attempting to maintain the security of his home and to protect his personal

property from further damage. The action of appellant in protecting his home

and property was foreseeable by the appellee. Appellant's attempt to remove the

vehicle from the garage door and secure the garage was required only because of

appellee's negligence. As such, appellant's actions were not an intervening cause

because his actions were set in motion by appellee's negligence.

Thirdly, the alleged inteivening cause was a condition through which the

original negligencc operated to produce the injury. Appellee damaged the door

preventing the door from being opened by the mechanical opener. The

24 Lake Shore &Michigan Sourthern Railway Co. v. Beall, 6 Ohio C.D. 250 (1895) affd. 53 O.S. 674.

10 dangerous condition which confronted appellant when he tried to secure his home from intruders was as a direct result of the appellee's negligence and a condition which appellee took no action to correct. Appellant's effort to seciii.re his home and protect his property was not an intervening cause.

Proposition of Law No. 4: Where both parties are

negligent a material issue of fact remains for resolution by

a jury as to who's negligence was the proximate cause of

the injury.

Finally, it is clear under Ohio law that summary judgment 1vas inappropriate in this matter as a jury question remains as to proximate cause.

This Court has held that even where the plaintiff is negligent as a inatter of law, a juiy question remains as to whether the plaintiffs negligence was the sole

proxiniate cause or even a proximate cause of the plaintiffs injuries.25 IIere

appellee admitted that she was negligent in the operation of her tnotor vehicle

and that her negligent operation resulted in the propei-ty damage to appellants'

home and vehicle.

Appellee alleges that appellant was negligent in the attempted repair of the

garage door. However, appellee points to no particular action of appellant as

being negligent. Appellee makes no specific allegation as to how appellant failed

to adhere to the standard of a reasonably prudent person. Nor did appellee

attempt to demonstrate that a reasonably prudent person would appreciate the

apparent danger. In short there is no of negligence in the record.

25Smiddy u. The Wedding Part^j, fiie., 30 Ohio St. 3d 35 at 40, 5o6 N.E.2d 2i2, at 218 (1987

11 Rather, during the course of his deposition appellant made statements recognizing in hindsight he had wished he had taken a different course of action.

None of the statements proffered by appellee establish that at the time of the

accident appellant was aware of the danger he faced. As such, the case presents a jury questions of whether appellant was negligent in his actions and if so wliether

his negligence exceeded that of appellee.

CONCLUSION

This Court should accept jurisdiction in this matter in order to determine

whether the defenses of intervening cause and comparative negligence merge and

to further develop the law as it relates to intezvening causes and comparative

negligence.

Derek . ustafson 005144 Attorney for appellant Suite 1919 1014 Vine St. Cincinnati, Ohio 45202 (513) 241-788o

12 CERTIFICATE OF SERVICE

I hereby certify that a copy of t e forgoing has been served by ordinary U.S. mail postage prepaid this ^i day of April 2010 upon the following:

Stephen Patsfall, Esq. Patsfall, Yeager & Pflum LLC Suite 128o Textile Bldg. 205 W. Fourth St. Cincinnati, Ohio 45202

13 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

KIRK DUQUETTE, APPEAL NO. C-o9o522 TRIAL NO. A-o8o9961 and

VIRGINIA DUQUETTE, JUDGMEN'!' ENTRY.

Plaintiffs-Appellants,

vs. ENTERED CATHERINE M. HUEBNER MAR 1 7 2010 Defendant-Appellee,

and

MEDICAL MUTUAL OF OHIO,

Defendant. D8746o1ss

We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court )

Plaintiffs-appellants Kirk and Virginia Duquette appeal from the trial court's entry granting summary judgment in favor of defendant-appellee Catherine M.

Huebner.

The facts in this case are undisputed. On April 12, 2007, IIuebner, an 8o- year-old woman, was looking for a friend's house on a residential street. She went past the house she was looking for and pulled into the Duquettes' driveway to turn

I See S.Ct.R.Rep.Op. 3(A), App.R.11.1(E), and Loo,R.12. ^ OI-IIO FIRST DISTRICT COURT OF APPEALS

around, She attempted to back out of the driveway, but because she had failed to put

the car in reverse, her car accelerated forward, striking the Duquettes' car, which was

parked in the driveway, and pushing it fonvard several feet through their garage

door. The police were called and took a report.

There is no dispute that Huebner was responsible for the to the

Duquettes' car and garage door. After Huebner and the police had left, Kirk

Duquette attempted on his own to pull his car out of the garage door. He pushed the

door up with one hand while trying to push his car out with the other hand. The

garage door snapped down when the car moved, pinning his right hand between the

door and the hood of his car. Kirk Duquette admitted that it was "basically a giant

mousetrap." As a result, he suffered four broken bones in his right hand.

The Duquettes filed suit against Huebner for the personal injuries Kirlc had

suffered in his attempt to extricate the car from the garage door. They also joined

their insurer, Medical Mutual of Ohio, so that it could assert any existing subrogation

interests in the litigation. After discovery was completed, Huebner filed a motion for

summary judgment, which the trial court granted. The Duquettes now appeal.

In a single assignment of error, the Duquettes argue that the trial court erred

by entering summary judgment in Huebner's favor. We are unpersuaded.

We review the trial court's decision on a summary-judgment motion de novo.

Summary judgment is appropriate when "(i) no genuine issue as to any material fact

remains to be litigated; (2) the moving party is entitled to judgment as a matter of

law; aild (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the party against

whom the motion for summary judgment is made, the conclusion is adverse to that party."2 ^tV ll^^^^i P d7 ^ MAR i 7 Z01(I ^ Ternpte u. Wean United, Inc. (i977), 5o Ohio St.2d 317,327,364 N.E.2d 267, 2 .V OHIO FIRST DISTRICT COURT OF APPEALS

The Duquettes argue that the trial court erred in granting summary judgment

to Huebner on the basis that Kirk's actions constituted an intervening cause of his

injuries. Ohio law provides that when a defendant's conduct is negligent and the

plaintiffs injury is the natural and probable consequence of that conduct, the

defendant is liable.3 "To find that an injury was the natural and probable

consequence of an act, it must appear that the injury coniplained of could have been

foreseen or reasonably anticipated from the alleged negligent act."4 However, an

intervening act may break the causal connection between the defendant's negligence

and a later injury, thus absolving the defendant of liability, if the intervening actor

was a who could or should have eliminated the hazard, and the

intervening cause was not reasonably foreseeable by the defendant.5

In this case, the Duquettes argue that Kirk's Duquette's injury never would

have happened but for Huebner's negligence and that it was foreseeable that the car

and garage door would have to be fixed. But where an independent action occurs to

break the causal connection, and that independent action was not foreseeable by the

defendant, as here, the injury is not the proximate result of the defendant's earlier

negligence.6 Here, Kirk Duquette's actions occurred four hours after the accident,

without the or knowledge of Huebner. While it was foreseeable that the door

would have to be fixed, it was not foreseeable that Kirk Duquette would have

undertaken on his own what he himself termed a dangerous task in attempting to

extricate the car from his garage.

The Tenth Appellate District's decision in Knisley v. Bray7 is both factually

and legally on point, In that case, the plaintiff was operating a truclc when he was

I Reed u. Weber (1992) 83 Ohio App.3d 437,441,615 N.8.2d 253, ^lY Y ^ 4 Knisley u. Bray, ioth Dist. No. o3AP-887, 2oo4-Ohio-4553, at ¶io. 5 td. MAR172010 6 Reed, supra, at 441-442• 7 ioth Dist. No. o3AP-887, 2004-Ohio-4553• 3 OATO FIRST DISTRICT COURT OF APPEALS

rear-ended by the defendant.8 A large tractor motor in the back of the plaintiffs truck fell out as a result of the collision.9 A nearby resident offered the use of his

Bobcat to lift the motor back into the truck.l() While attempting to do so, the plaintiff slipped in a puddle of oil, hitting his head and sustaining serious injuries.13 The trial court granted the defendant's motion for summary judgment, determining that the plaintiffs injuries were not proximately caused by the negligence of the defendant and were not foreseeable by him.12 The Tenth Appellate District affirmed the trial court's judgment, holding that the plaintiffs attempt to load the motor back on the truck constituted an intervening, superseding cause of his injuries.13

Similarly, in this case Kirk Duquette's attempt to extricate his car from his garage was not foreseeable by Huebner and constituted an intervening superseding cause of his injuries. We, therefore, overrule the Duquettes' sole assignment of error and affirm the trial court's entry granting summary judgment to Huebner.

A certified copy of this judgment entry shall constitute thc mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R.

24.

HILDEBRANDT, P.J., SUNDERMAtYN and MALLORY, JJ.

To the Clerk:

Enter upon the Journal of the Court on March 17, 2010 per order of the Cou

8 Id at 112. 9Id. ta Id, a Id.at113. 12 Id. at 95. ,3 Id. at 91f7-17• 4