CITY OF CLEVELAND, Appellant, On Appeal from the Franklin County Court of Appeals, vs. Tenth Appellate District
NADER ASSAD, et.al., Court of Appeals Case No. 07AP-152 Appellees.
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CITY OF CLEVELAND
ROBERT ]. TRIOZZI (0016532) Director of Law SUSAN M. BUNGARD (0058450) (COUNSEL OF RECORD) Assistant Director of Law City Hall-Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077 Phone: (216) 664-2310 Fax: (216) 420-8291 sbungardC&city.cleveland.oh. us Attorneys for Appellant City of Cleveland
CHARLES NEMER (0009261) (COUNSEL OF RECORD) McCarthy, Lebit, Crystal & Liffman Co., L.P.A. 101 West Prospect Avenue, #1800 Cleveland, Ohio 44115-1088 Phone: (216) 696-1422 Fax: (216) 696-1210 Attorney for Appellee Nader Assad ca n@ m c ca rthy l e b i t. co m
TODD NIST (0079436) (COUNSEL OF RECORD) Assistant Attorney General 30 East Broad Street, 26th floor Columbus, Ohio 43215-3428 Phone: (614) 644-2410 Fax: (614) 728-4548 Attorney for the Ohio Liquor Control Commission tnist sg.state.oh.us TABLE OF CONTENTS
1. Explanation of why this case is a case of public or great general interest ...... 3
II. Statement of the Case and Facts ...... 3
III. Argument in support of proposition of law ...... 6
Proposition of Law #1: Resjudicata bars an applicant for a liquor permit from re-applying for, and obtaining the same permit, if he is in privity with the most recent applicant.
IV. Conclusion ...... 7
Certificate of Service ...... :...... 9
Ap pe nd ix ...... 10
Journal Entry and Opinion of the 10th District Court of Appeals ...... 11
2 I. Explanation of why this case is a case of public or great general interest.
This case presents one issue that this Court needs to decide:
1: Whether res judicata bars an applicant for a liquor permit from re- applying for and obtaining, the same permit, if he is in privity with the most recent applicant.
In this case, the court of appeals held that res judicata did not apply and
Appellee Nader Assad was not barred from obtaining a liquor permit even though a corporation, for which he was the sole shareholder, was denied the same permit at the same address less than one year before his second application was filed.
The court of appeals' holding affects the public interest because it requires municipalities to continuously fight the same liquor permits over and over even if they have staved them off in the past. Time and manpower is wasted. This is particularly harmful to the City of Cleveland because the City has many over-quota permits. The City has been trying to get rid of those permits over the quota allowed per the Ohio Revised Code. By accepting jurisdiction and deciding this case, this court will ultimately decide if the res judicata argument can be made in these type of cases.
II. Statement of the Case and Facts.
On February 25, 2003, Nader Assad applied to transfer the ownership and location of a liquor permit from Trend Cross Enterprises, Inc., located at 6104 St.
Clair Avenue, Cleveland, Ohio, to his convenience store at 3744 E. 144t' Street,
Cleveland, Ohio (a.k.a. 14375 Bartlett Avenue). Assad initially applied in his corporation's name, M.U.S.A., Jr. 3744, Inc. (d.b.a. One Stop Market). Assad is and was the corporation's sole shareholder.
Although Cleveland City Council (City) objected to transfer of the permit, the
Division of Liquor Control (DOLC) overruled the City's objection, after a hearing on the matter, and granted the transfer. The City appealed this decision to the Liquor
Control Commission (LCC) and the LCC held a hearing on April 20, 2004. The City argued that the neighborhood is saturated with permits because there are already
25 liquor permits within a one-mile radius of the proposed premises. Testimony showed that the store is located in a strong, residential community, consisting of many senior citizens who have lived in the area most of their lives. The City also argued that the permit should be denied because the neighborhood iscurrently subject to drug and other illegal activity. It is known that the alcohol sales will only increase this activity.
Testimony also revealed that the store previously had a liquor permit. But the permit was revoked due to "WIC" fraud at a time when Assad did not own the business but while he worked at the store.
Following the hearing, the LCC denied the transfer of the permit. The LCC rendered its decision on April 30, 2004. The decision was not appealed to the
Franklin County Court of Common Pleas.
Less than six months later, on October 8, 2004, Assad again applied to transfer the same liquor permit for use at the same location. But this time, he did not apply under MUSA. Instead he applied in his individual name (d.b.a. One Stop
4 Market). Cleveland City Council again objected to the transfer of the permit and the
DOLC scheduled the matter for hearing on January 20, 2005.
The scheduled hearing did not go forward because counsel for the City argued that the matter could be decided on briefs. The City argued that the LCC had already heard and denied the application and that the testimony that would be offered at the hearing would be the same as that offered before the LCC on April 20,
2004. The hearing officer continued the hearing to allow the parties to submit
briefs. The parties submitted briefs and eventually the Superintendent determined that there was a need for a hearing on the matter. The matter was set for hearing on April 14, 2005. It was agreed between counsel for the parties, Susan Bungard
on behalf of the City of Cleveland and Tom Paris on behalf of Nader Assad, that no
evidence would be presented and that the objection would be overruled as a matter
of law. On April 18, 2005, the City appealed the decision of the Superintendent to
the LCC. On March 14, 2006, the LCC held a hearing. The City argued that the
transfer of the permit was barred under the doctrine of resjudicata. The LCC
affirmed the Superintendent's decision on March 31, 2006.
The City appealed the decision to the Franklin County Court of Common
Pleas. On January 23, 2007, the Common Pleas Court upheld the decision of the
LCC and the City appealed to the 10th District Court of Appeals. On September 11,
2007, the 10th District upheld the decision of the Common Pleas Court and the City
hereby appeals to this honorable Court.
5 III. Argument in support of proposition of law.
Proposition of Law #1: Resfudicata bars an applicant for a liquor permit from re-applying for, and obtaining, the same permit, if he is in privity with the most recent applicant.
In this case, it is imperative that this Court accept jurisdiction and reverse the decision of the 10th District Court of Appeals. The City of Cleveland is oversaturated with liquor permits and is trying to act preemptively to keep permits from entering
neighborhoods that have an overabundance of permits. In this case, the Mount
Pleasant neighborhood currently has many carry-out permits and there is no need for another permit in this neighborhood. The neighborhood is predominantly
African-American, with many senior citizens, and many long-term residents.
However, it hangs precipitously on the edge. There are many social ills, including
drug dealing, gangs, loitering for drug sales, and other issues that, historically, have
been known to destroy neighborhoods.
Councilman Zachary Reed is trying diligently to keep this neighborhood from
falling over the edge. He has obtained federal grant money through the "Weed and
Seed" program to fund more off-duty Cleveland Police to secure the neighborhood.
He has managed to have the City and State of Ohio completely resurface the main
thoroughfare through Mt. Pleasant, Kinsman Road. This project cost millions of
dollars and resulted in a newly resurfaced road, new curbs, and lighting along
Kinsman. He has gotten St. Luke's Hospital to agree to invest millions of dollars on
a new KidsHealth 20/20 campus near this proposed permit premises. Obviously the
intention of all of these projects is to make Mt. Pleasant a safe, pleasant
6 environment for the elderly and the children in the neighborhood. The addition of new liquor permits in the neighborhood does not add to this goal.
The fact that Councilman Reed and his constituents constantly have to battle the same liquor-permit applicants over the same liquor permits requires an extensive amount of employee man-hours, travel time, and time lost from work for those persons who must take off to testify. The City is not asking that its objections be sustained simply because they are made. What the City is asking is what makes common sense: the same applicant should not be allowed to apply for the same permit at the same address once that permit has been denied. To allow otherwise requires the municipality to expend limited time and assets to fight an issue that has. already been decided. Resjudicata should apply in this situation.
Two appeals courts have decided this issue and both have decided that res judicata does not apply. The first court to decide this issue was the Fifth District
Court of Appeals in Moffa v. Liquor Control Commission, (May 10, 1999), Stark App.
No. 1998CA00305. The other case is the Appeals Court decision in this matter.
However, the City of Cleveland believes it is imperative for this honorable Court to accept jurisdiction and issue a definitive ruling on whether or not resjudicata applies
in this situation.
Thus, this Court must accept jurisdiction and reverse.
IV. Conclusion.
The court of appeals' erroneous decision is of public and great general
interest because two courts have rendered decisions in this situation. It is the City's
7 contention, that although the Ohio Administrative Code does not limit who may apply after the one-year limit found in Rule 8, by allowing the same person or entity to apply over and over, a municipality is required to waste resources to fight these incoming permits when earlier cases have shown that the neighborhood is not conducive to the addition of more permits and/or the applicant may not be suitable to have a permit. The municipality should not be required to spend limited police and legal resources time and again to do this. Resjudicata should bar these applications. The Supreme Court has not weighed in on this issue. The City
requests that this Court accept jurisdiction and review these important issues on the
merits.
Respectfully submitted,
ROBERT J. TRIOZZI (0016532) Di or of Law 3,c-jpt_w7j SUSAN M. BUNGARD (0058450) Assistant Director of Law Cleveland City Hall 601 Lakeside Avenue Rm. 106 Cleveland, Ohio 44114-1077 (216) 664-2310 (216) 420-8291 Fax sbungardC^a city.cleveland.oh.us ATTORNEYS FOR THE CITY OF CLEVELAND
8 CERTIFICATE OF SERVICE
I served a copy of the City of Cleveland's Memorandum in Support of
Jurisdiction by regular U.S. mail this zS day of October, 2007, to:
CHARLES NEMER McCarthy, Lebit, Crystal & Liffman Co., L.P.A. 101 West Prospect Avenue, #1800 Cleveland, Ohio 44115-1088 Attorney for Appellee Nader Assad
TODD NIST Assistant Attorney General 30 East Broad Street, 26th floor Columbus, Ohio 43215-3428 Attorney for the Ohio Liquor Control Commission
SUSAN M. BUNGARD Assistant Director of Law
9 APPENDIX A ^u37 6,v NItYlgord
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Cleveland,
Appellant-Appellant, No. 07AP-152 V. (C.P.C. No. 06CVF04-5315)
Nader Assad et al., (REGULAR CALENDAR)
Appellees-Appellees.
O P I N I O N
Rendered on September 11, 2007
Robert J. Triozzi, Director of Law, and Susan M. Bungarrl, for appellant. McCarthy, Lebit, Crystal & Liffman Co., LPA, and Charfes A. Nemer, for appellee Nader Assad.
Marc Dann, Attomey.General, and Todd A. Nist, for appellee Ohio Liquor Control Commission.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
('j1} Appellant, City of Cleveland ("City"), appeals from the judgment of the
Franklin County Court of Common Pleas, affirming the order of appellee, Ohio Liquor
Control Commission ("Commission"), in which the Commission affirmed the order of the
Ohio Department of Commerce, Division of Liquor Control ("Division"), granting an No. 07AP-152 2 application by appellee, Nader Assad ("Assad"), to transfer the ownership and location
of C-2 and C-2x liquor permits.
{12} In October 2004, Assad applied to the Division to transfer the ownership
and location of C-2 and C-2x liquor permits from Trend Cross Enterprises, Inc., dba
Capital Beverage St Clair, to Assad, dba One Stop Market. Assad's convenience store,
One Stop Market, is located at 3744 East 144th Street, Cleveland, Ohio. The City
objected to Assad's application. On April 14, 2005, the Division overruled the City's
objection based on the City's failure to present evidence or testimony as to why the
transfer should not be granted.
{13} The City appealed to the Commission. At the hearing before the
Commission on March 14, 2006, the City argued that the doctrine of res judicata barred
Assad's application. Specifically, the City claimed that the Commission's denial, on
Apri1 30, 2004, of a previous appiication to transfer the same permits to Assad's
corporation, M.U.S.A., Jr. 3744, Inc. ("M.U.S.A."), dba One Stop Market, precluded
Assad's application. The City called no witnesses at the Commission hearing. The
City's only evidence, admitted over Assad's objections, was a transcript of the
Commission's April 20, 2004 hearing on the previous application. Assad, on the other
hand, called four witnesses who live in the vicinity of the One Stop Market and who
testified abbut the neighborhood, including changes to the neighborhood in the two
years since the previous Commission hearing. In an order mailed March 31, 2006, the
Commission affirmed the Division's decision overruling the City's objection and ordered the Division to continue processing Assad's application. No. 07AP-152 3
{14} Pursuant to R.C. 119.12, the City appealed to the Franklin County Court of
Common Pleas, which affirmed the Commission's order on January 23, 2007. The City then timely appealed to this court and now raises the following single assignment of error:
The Common Pleas Court Abused Its Discretion By Affirming The Order Of the Liquor Control Commission Because The Order Is Not Supported By Reliable, Probative, And Substantial Evidence And Is Not In Accordance With Law.
(15) In an appeal, pursuant to R.C. 119,12, the common pleas court reviews
the entire record to determine whether the adminiatrative agencys order is supported by
reliable, probative, and substantial evidence and is in accordance with the law. Univ, of
Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111. The Ohio Supreme Court has
defined reliable, probative, and substantial evidence as follows:
''•"Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidenoe is true, "` * ' "Probative" evidence is evidence that tends to prove the Issue in question; it must be relevant in determining the issue. '"SubstantiaP' evidence is evidence with some weight; it must have importance and value.
(Footnotes omitted.) Our Place, Inc. v. Ohio Llquor Control Comm. (1992), 03 Ohio
St.3d 570, 571. In applying this standard, the court must give due deference to the
agency's resolution of evidentiary conflicts. Conrad at 111.
[16} On appeal to this court, the standard of review is more limited. In
reviewing the court of common pleas' determination that the Commission's order was
supported by reliable, probative, and substantial evidence, this court's role is limited to
determining whether the court abused its discretion. Roy v. Ohio State Med. Bd. No, 07AP-152 4
(1992), 80 Ohio App.3d 675, 680. The term "abuse of discretion" connotes more than
an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary
or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. However,
on the question of whether the Commission's order was in accordance with the law, this
court's review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State
jFmp, Relations Bd. (1992), 63 Ohio St.3d 339, 343.
{17} Here, after considering-the testimony presented at the March 14, 2006
hearing, as well as at the April 20, 2004 hearing relating to the prior application, the trial
court concluded that reliable, probative, and substantial evidence supported the
Commission's order and that the order was in accordance with law. The court stated:
"The more recent evidence Is more probative on the determinative issues and when
combined with other evidence, the totality of the evidence is favorable to appellee
Assad;' Also, in reliance on the Fifth District Court of Appeals' opinion in Moffa v.
Liquor Control Comm. (May 10, 1999), Stark App. No. 1998CA00305, the trial court
rejected the City's argument that res judicata barred Assad's application.
{y[$} In its appeal to this court, the City primarily argues that the triai court
abused its discretion in affirming the Commission's order because the doctrine of res judicata bars Assad's application, The City argues that the Commission's prior denial of
M.U,$.A.'s "application to transfer the peimits to the One Stop Market bars the
Commission's consideration of Assad's later application.
{14} The doctrine of res judicata involves both claim preclusion and issue
preclusion. Grave v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Qhio-331. Under
the Gaim-preclusive branch of res judicata, 11 '[al final judgment or decree rendered upon No. 07AP-152 5 the merlts, without fraud or collusion, by a court of competent jurisdiction * * * is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.' " Id., quoting Nonwod v. McDonald (1943),
142 Ohio St. 299, paragraph one of the syllabus. The issue-prectusive branch of res judicata bars the relitigation of a point of law or fact that was at issue in a former action between the same partfes or their privies and that was passed upon by a court of competent jurisdiction. Bell v. Ohio State Bd of Trustees, Franklin App. No. 06AP-
1174, 2007-Ohio-2790, at 130. Res judicata, whether issue preclusion or claim preclusion, ordinarily applies to those administrative proceedings which are "of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding[:]" 3uperior''s Brand Meats, Inc. v. Lindley (1980), 62 Ohio
St.2d 133, syllabus; Office of Consumers' Counsel v. Pub. Utit, Comm. (1985), 16 Ohio
St3d 9, 10. Nevertheless, the Ohio Supreme Court has recognized the need for flexibility in applying the doctrine to the administrative decision-making process.
Superior's Brand Meats at 135.
{110} The City spends the bulk of its argument establishing that Assad and
M.U.S.A. are privies. However, even assuming that privity exists between Assad and
M.U.S.A., we find no abuse of discretion In the trial court's rejection of the City's res judicata argument.
(111} By arguing that the Commission's denial of M.U.S.A.'s application bars further applications by either M.U.S.A. or its privies, the City, in essence, argues that, once the Commission denies an application to transfer a permit, res judicata forever bars the applicant from reapplying for such a transfer. The Ohio Administrative Code No. U7AP-152 directly contradicts the City's argument. For example, Ohio Adm.Code 4301:1-1-08 clearly anticipates reapplications for permit transfers but establishes a one-year waiting period after a refusal to transfer: "A permit shall not be *"* transferred to a location for a period of one year following the * * * refusal to * * * transfer * * * any permit under division (A)(2) or (B)(1)(2) of section 4303.292 of the Revised Code."' Ohio Adm.Code
4301:1-1-08 also vests the Commission with discretion to waive enforcement of the waiting period when special circumstances warrant.
{112) In addition to the Ohio Administrative Code, case law from various courts of this state weighs against acceptance of the City's res judicata argument. In rejecting the City's res judicata argument, the trial court relied on Moffa, in which the Fifth District
Court of Appeals considered a scenario similar to that present here. In 1993, Moffa applied for, but was denied, a C1-C2 liquor permit. Moffa exhausted all levels of administrative review and appealed to the Franklin County Court of Common Pleas, which affirmed the denial of her application on August 30, 1996. Six months later, in
February 1996, Moffa filed a new applicaUon for a C1-C2 liquor permit for the same premises. The Director of the Ohio Department of Liquor Control and the Commission both determined that res judicata barred Moffa's second applicaUon. On appeal, the
Stark County Court of Common Pleas reversed and remanded the case for a de novo
hearing. The Fifth District Court of Appeals affirmed, stating: "Given the lapse of time
and the basis of the decision being environmental Impact, we find the decision to
dismiss the second application to be contrary to law." Id. The court found res judicata
inapplicable to a reapplication where there had been a substant+al lapse of time from the
' R.C. 4303.292 sets forth grounds for a refusal to issue, renew or transfer liquor permits. No. 07AP-152 7 prior, adverse decision. The court also noted that a change in circumstances may justify a reapplication at any time.
(113} In other administrative contexts, courts have held that res judicata will not bar subsequent applications involving changed circumstances. For example, in Set
Products, tnc. v. 8ainbddge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260, syllabus, the Ohio Supreme Court held that "[r]es Judicata will not bar the grant of an application for a[zoning] variance, after denial of a prior application covering the same property, upon a showing of changed circumstances." Akhough the Supreme Court ultimately determined that the second application in Set Products was not supported by evidence of sufficient changed circumstances, the court was clear that a proper showing of changed circumstances precludes application of res judicata. Similarly, in Schulte v.
City of Beavercreek (Oct. 30, 1998), Montgomery App. No. 98 CA 2, the Second District
Court of Appeals held that res judicata did not bar a second zoning pennit application, based on a substantially different development plan, after denial of an initial application relating to the same properly.
(114) Here, the Commission denied the first application to transfer the permits to
One Stop Market based on testimony offered at the April 20, 2004 hearing, Including testimony about the neighborhood's high-crime character, high concentration of drug use, and saturation of liquor permits. However, 20 months elapsed between M.U.S.A.'s application and Assad's application to transfer the permits, and 23 months elapsed between the Commission's hearings on the two applications. According to Assad, changes in the neighborhood, including a reduction in drug activity, supported his application to transfer the permits. In support of Assad's application, numerous No. O7AP-152 8 witnesses testified about changes to the neighborhood in the previous two years. Given the significant lapse af time between applications, evidence of changed circumstances, and the fact that the Commission based Its denial of the first application on environmental concerns, we conclude, consistent with Moffa, that res judicata did not bar consideration of Assad's application.
{qls} We next consider whether the triat court abused its discretion in concluding that reliable, probative, and substantial evidence supported the
Commission's order. As the objecting party, the City bore the burden of proving as a fact one or more of the grounds set forth in R.C. 4303.292 for denying Assad's application. See City of Euclid v. Liquor Cantrol Comm. (June 9, 1992), Franklin App.
No. 92AP-153. As relevant here, R.C. 4303.292 authorizes denial of a• request to
transfer a permit where the plaoe for which the permit Is sought "[i]s so located with
respect to the neighborhood that substantial interference with public decency, sobriety,
peace, or good order would result from the *** transfer of location, or transfer of
ownership of the permit and operation under it by the applicant[.]" R.C.
4303.292(A)(2)(c). Additionalty,. R.C. 4303.292(l3)(2) authorizes refusal to transfer a
permit where "the number of permits already existent in the neighborhood is such that
the *** transfer of location of a permit would be detrimental ta and substantially
interfere with the morals, safety, or welfare of the public." The City argues that the
evidence presented at the April 2004 hearing supports denial of Assad's application
pursuant to the above-cited sections of R.C. 4303.292.
(116) Although the City's attorney opined, at the March 2006 hearing, that there
had been no change in the circumstances of the neighborhood sinee the April 2004 No. 07AP-152 hearing, she presented no evidence to that effect. In fact, in response to her statements regarding the character of the neighborhood, the Commission's chairperson reminded the City's attorney that she was not a sworn witness. The only evidence that the City produced at the March 2005 Commission hearing was the transcript of the April 2004 hearing. While relevant to the character of the neighborhood and the saturation of nearby liquor permits in Aprii 2004, the testimony from the earlier hearing is of little value in determining the aharacter of the neighborhood or saturation of nearby liquor permits nearly two years later, when the Commission considered Assad's application.
{117} In contrast to the City, Assad called four witnesses at the March 2006 hearing. Assad's witnesses, who live in the neighborhood of the One Stop Market, testified that drug activity had decreased in. the previous two years. Two of the witnesses credited the reduction in drug activity to an increase in civic activism and the activities of an anti-drug task force. One witness testified that, while she was participating in an anti-drug demonstration near the One Stop Market, employees of the
One Stop Market participated and supported the demonstration by providing the demonstrators with water. The same witness also testified that Assad does not permit loitering and disperses people hanging around outside the One Stop Market. Having reviewed the testimony presented at the March 14, 2006 hearing, along with the testimony fr`om the April 20, 2004 hearing, we find no abuse of discretion in the trial court's conclusion that reliable, probative, and substantial evidence supported the
Commission's order granting Assad's application.
{118} ARhough the City argues to this court, as it argued to the trial court, that the record contained sufAcient evidence to support a denial of Assad's application, the No. 07AP-152 10
City's position ignores the standards of review applicable to R.C. 119.12 appeals. The common pleas court considers solely whether the Commission's order Is supported by reliable, probative, and substantial evidence, and is In accordance with law. R.C.
119.12. Thus, the issue before the trial court was whether the record contained reliable, probative, and substantial evidence supporting the Commission's order to grant Assad's application, not whether the record contained evidence that would have supported denial of that application. This oourt, in tum, determines only whether the common pleas court abused its discretion, See Roy at 680. Finding no abuse of discretion, we
overrule appellants assignment of error.
{1[19} For the foregoing reasons, we affirm the judgment of the Franklin County
Court of Common Pleas.
Judgment aftlrmed
BRYANT and BRYANT, JJ., concur.
BRYANT, J., retired of the Third Appellate District, assigned to aotive duty under authority of Section 6(C), Article IV, Ohio Constitution. FROM (THU)OCT 25 2007 16:13/ST.16:11/No.6868608510 P 1
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Cleveland,
Appel lant-Appellant, No. 07AP-152 V. (C.P.C. No. 06CVF04-5315)
Nader Assad et al., (REGULAR CALENDAR)
Appellees-Appellees.
JUDGMENT ENTRY
For the reasons stated in the opinion of this court rendered herein on
September 11, 2007, appellant's assignment of error is overruled, and it is the judgment
and order of this court ihat the judgment of the Franklin County Court of Common Pleas
is affirmed. Costs shalt be assessed against appellant.
FRENCH, BRYANT, and BRYANT, JJ.
By Judge Judith L. French
BRYANT, J., retired of the Third Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.
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