CourtListener opinion 10824232

Evidence quotes

Clean opinion text

[Cite as Plymale v. Plymale, 2025-Ohio-911.]

 IN THE COURT OF APPEALS OF OHIO
 FOURTH APPELLATE DISTRICT
 JACKSON COUNTY

SALLY ANN PLYMALE, :

 Plaintiff-Appellant, : Case
 No. 23CA13

 v. :

SANDRA PLYMALE, : DECISION AND
 JUDGMENT ENTRY

 Defendant-Appellee. :
________________________________________________________________

 APPEARANCES:

Joseph D. Kirby, Jackson, Ohio, for appellant.

Stephen K. Sesser and Jordan T. Benson, Chillicothe, Ohio, for
appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:3-12-25
ABELE, J.

 {¶1} This is an appeal from a Jackson County Common Pleas

Court summary judgment entered in favor of Sandra Plymale,

defendant below and appellee herein. Sally Ann Plymale,

plaintiff below and appellant herein, assigns the following

errors for review:

 "THE TRIAL COURT ERRED BY FINDING THAT R.C.
 145.43, AS IT RELATES ONLY TO LIMITATIONS ON
 OPERS, PREVENTED THE COURT FROM RECOGNIZING
 THAT A CONSTRUCTIVE TRUST WAS CREATED A BY
 [SIC] THE OPERATION OF LAW AND THAT THE
 IMPOSITION OF THE CONSTRUCTIVE TRUST IS
 JACKSON, 23CA13

 2
 REQUIRED TO DIRECT SURVIVOR BENEFITS TO
 APPELLANT BY APPELLEE."
 {¶2} Appellant is the former spouse of Robert Duane

Plymale, who died in 2021. At the time of his death, Plymale

was married to appellee. Plymale had been a member of the Ohio

Public Employees Retirement System (PERS), and upon his death,

appellee, as the surviving spouse, received survivor benefits.

 {¶3} Appellant subsequently filed a complaint against

appellee and sought to recover a portion of the survivor

benefits. Appellant alleged that in 1991, she and Plymale

entered into a separation agreement and dissolution decree that

required Plymale to designate her a 25 percent beneficiary of

his PERS survivor benefits. Appellant asserted that the

parties' separation agreement and dissolution decree ordered the

division of PERS benefits as follows:

 The parties hereto are aware of the pension and
 retirement benefits available to Robert Duane Plymale
 and the disparity between such benefits and the lack of
 retirement benefits available to Sally Ann Plymale and
 hereby agree that at the time Robert Duane Plymale
 commences receipt of such benefits, Sally Ann Plymale
 shall be deemed the vested owner of twenty-five percent
 (25%) of such benefits and shall be paid a sum equal to
 such percentage by direct assignment. . . . Robert Duane
 Plymale will continue to maintain the beneficiary
 designations for such benefits in favor of Sally Ann
 Plymale.

 {¶4} Appellant claimed that appellee "is receiving monies
 JACKSON, 23CA13

 3
directly from [PERS] which rightfully belong to" appellant.

Appellant sought the imposition of a constructive trust and

asked that appellee pay appellant 25 percent "of all benefits

received since" Plymale's death. Appellant also (1) asserted

claims for unjust enrichment and conversion, and (2) sought an

injunction.

 {¶5} On January 27, 2023, appellee filed a summary judgment

motion and argued that appellant and Plymale's division of

property order entered in the divorce case stated that

appellant's "right to receive an amount from the benefit payment

or lump sum payment to [Plymale] shall terminate upon" Plymale's

death. Appellee asserted that Plymale's OPERS benefits ended

upon his death and that appellant does not have any right to

survivor benefits.

 {¶6} In response, appellant filed a combined memorandum

contra to appellee's summary judgment motion and a summary

judgment motion. Appellant contended that the parties' divorce

decree required Plymale to "continue to maintain the beneficiary

designations for [PERS] benefits in favor of [appellant]."

Appellant claimed that the divorce decree thus required Plymale

to designate her a 25 percent beneficiary of the PERS survivor
 JACKSON, 23CA13

 4
benefits. She alleged that, because Plymale failed to do so,

the court should impose a constructive trust and order appellee

to pay appellant 25 percent of the PERS survivor benefits.

Appellant further asserted that appellee is being unjustly

enriched by receiving appellant's 25 percent share of survivor

benefits and has converted her 25 percent property interest in

Plymale's PERS survivor benefits.

 {¶7} Appellee countered that as the surviving spouse, she

is statutorily entitled to Plymale's PERS survivor benefits.

Appellee argued that the court cannot circumvent the statutory

scheme by imposing a constructive trust.

 {¶8} On May 4, 2023, the trial court entered summary

judgment in appellee's favor. The court determined that "the

language in the dissolution decree is not sufficient as a matter

of law to create a designation that [appellant] was the

beneficiary of the survivor benefit." This appeal followed.

 {¶9} In her sole assignment of error, appellant asserts

that the trial court erred by entering summary judgment in

appellee's favor. In particular, appellant contends that the

trial court incorrectly determined that it could not impose a

constructive trust over the benefits paid to appellee.
 JACKSON, 23CA13

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Appellant contends that the decree required Plymale to "continue

to maintain the beneficiary designations for [PERS] benefits in

favor of [appellant]," and because Plymale did not do so, the

court has the authority to impose a constructive trust over his

survivor benefits.

 {¶10} Appellee asserts that she has a statutory right to

Plymale's survivor benefits that overrides any language in the

divorce decree regarding Plymale continuing to maintain

appellant as the beneficiary. Appellee thus argues that

appellant is not entitled to any of the survivor benefits or a

constructive trust.

 A

 {¶11} Initially, we observe that appellate courts conduct a

de novo review of trial court summary judgment decisions. E.g.,

Tera, L.L.C. v. Rice Drilling D, L.L.C., 2024-Ohio-1945, ¶ 10,

citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). Accordingly, an appellate court need not defer to a

trial court's decision, but instead must independently review

the record to determine if summary judgment is appropriate.

Grafton, 77 Ohio St.3d at 105.
 JACKSON, 23CA13

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 {¶12} Civ.R. 56(C) provides in relevant part:

 Summary judgment shall be rendered forthwith if the
 pleadings, depositions, answers to interrogatories,
 written admissions, affidavits, transcripts of evidence,
 and written stipulations of fact, if any, timely filed
 in the action, show that there is no genuine issue as to
 any material fact and that the moving party is entitled
 to judgment as a matter of law. No evidence or
 stipulation may be considered except as stated in this
 rule. A summary judgment shall not be rendered unless
 it appears from the evidence or stipulation, and only
 from the evidence or stipulation, that reasonable minds
 can come to but one conclusion and that conclusion is
 adverse to the party against whom the motion for summary
 judgment is made, that party being entitled to have the
 evidence or stipulation construed most strongly in the
 party's favor.

 {¶13} Therefore, pursuant to Civ.R. 56 a trial court may not

award summary judgment unless the evidence demonstrates that (1)

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, and (3) after viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can come to

but one conclusion, and that conclusion is adverse to the

nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.

Prosecutor's Office, 2021-Ohio-1241, ¶ 8; Temple v. Wean United,

Inc., 50 Ohio St.2d 317, 327 (1977).

 B

 {¶14} In the case at bar, the parties dispute a question of
 JACKSON, 23CA13

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law: Whether Ohio law permits a trial court to impose a

constructive trust over survivor benefits paid to a surviving

spouse of a deceased member of PERS as a result of a provision

in a divorce decree between the deceased member and a former

spouse that required the deceased member to "maintain the

beneficiary designations for [PERS] benefits in favor of" the

former spouse.

 {¶15} This court previously held that parties cannot use

divorce proceedings to "circumvent the statutory provisions for

the distribution of death benefits from public pensions."

Schrader v. Schrader, 2004-Ohio-4104, ¶ 28 (4th Dist.). In

Schrader, the parties' divorce decree required the husband to

designate his former wife as a beneficiary of his PERS account

in the amount of $58,000. The decree also "specified that in

the event he failed to do so, [the former wife] would have a

claim against his estate in that amount." Id. at ¶ 9. The

husband remarried and did not designate his former wife as a

beneficiary of his PERS account in the amount of $58,000.

 {¶16} After the husband's death, the former wife filed a

complaint against the new wife and sought to recover the
 JACKSON, 23CA13

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$58,000. The new wife later requested summary judgment and

argued, in part, that the former wife could not recover any

amount based upon Cosby v. Cosby, 2002-Ohio-4170, ¶ 19 (holding

that a trial court cannot circumvent the statutory scheme

regarding a surviving spouse's right to survivor benefits by

imposing a constructive trust over a portion of a surviving

spouse's benefits for the benefit of a former spouse). The

trial court agreed and entered summary judgment in the new

wife's favor.

 {¶17} The former wife appealed and argued that Cosby did not

apply because the parties' divorce decree created a third-party

contract with the former wife as the beneficiary. We did not

agree and found Cosby dispositive. We explained:

 The facts in Cosby are strikingly similar to the
 facts in this case. A husband and wife divorced in
 1989 and the terms of the decree stated that the ex-
 wife was to receive forty percent (40%) of her ex-
 husband's retirement monies from State Teacher's
 Retirement System (STRS). The husband remarried and
 died before retirement. His second wife collected the
 statutory death benefit under STRS and the first wife
 brought suit and claimed that her ex-husband's widow
 was unjustly enriched by collecting the entire death
 benefit. Consequently, the first wife asked that a
 constructive trust be imposed for forty percent (40%)
 of the STRS benefit. The trial court ruled in favor
 of the widow. The court of appeals, however, reversed
 JACKSON, 23CA13

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 the trial court's judgment and found that the STRS
 death benefit was marital property divided under state
 law and that the deceased could not give to his new
 wife what had already been awarded to his ex-wife.
 Id. at ¶¶ 2–7, 773 N.E.2d 516.
 The Ohio Supreme Court reversed the court of
 appeals and held that the divorce decree only affected
 retirement benefits. Because the decedent did not
 retire before he died, those benefits did not vest.
 His widow was, instead, receiving a death benefit
 payable to her by statute and . . . courts may not
 impose a constructive trust that would distribute that
 benefit contrary to statute. Id. at ¶¶ 15–19, 773
 N.E.2d 516. Although Cosby involved STRS, whereas the
 case sub judice involves PERS, we see no reason why
 the same principles would not apply here.

Id. at ¶ 20-21.

 {¶18} We further rejected the former wife's contractual

arguments and stated that "nothing in the Cosby case . . .

prevent[ed] its application" simply because the parties' divorce

decree included a provision that required one party to designate

the other party the beneficiary of PERS benefits. We stated:

"The gist of the holding in Cosby is that divorce proceedings

could not circumvent the statutory provisions for the

distribution of death benefits from public pensions. That

statement of public policy is the same regardless of the

particular wording of the divorce decree." Id. at ¶ 28. We

thus affirmed the trial court's judgment.

 {¶19} A few years later, the Second District Court of
 JACKSON, 23CA13

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Appeals considered a related issue that involved survivor

benefits under STRS. Fischbach v. Mercuri, 2009-Ohio-4790 (2d

Dist.). In that case, the parties' separation agreement

outlined multiple scenarios regarding the husband's STRS

benefits:

 13. Division of Husband's State Teacher Retirement
 Benefits.
 The parties acknowledge that the Husband currently
 has vested retirement benefits in the State Teacher's
 Retirement System. Further, the parties acknowledge
 that due to the applicable provisions of the Ohio Revised
 Code, that the parties are unable to divide the Husband's
 State Teachers Retirement Benefits pursuant to an
 appropriate Qualified Domestic Relations Order or
 another appropriate Court Order. Further, the parties
 acknowledge that as of June 30, 1997, the Husband is
 entitled to receive a monthly benefit from the State
 Teacher's Retirement System in the amount of Three
 Thousand Five Hundred Thirty–Five Dollars ($3,535.00).
 The Wife shall be entitled to receive from the Husband's
 benefits from the State Teachers Retirement System the
 amount of $1,767 per month of the Husband's monthly
 benefits when he retires and begins receiving his
 benefits. In the event that the Husband goes on
 disability, the Court shall retain jurisdiction to allow
 the Wife to make a claim. Further, if upon retirement,
 the Husband elects to receive a lump sum distribution of
 his State Teachers Retirement benefits, the Wife will be
 entitled to receive a portion of said lump sum
 distribution. The Wife's portion of said lump sum
 distribution shall be determined by dividing the number
 of years of the parties' marriage by the number of years
 of the Husband's participation in the State Teachers
 Retirement system. The resulting percentage would then
 be divided in half, with the result being the Wife's
 share of any lump sum distribution received by the
 Husband from his State Teachers Retirement system.
 JACKSON, 23CA13

 11
 The Husband shall pay said amount, whether the
 monthly amount or the lump sum amount, directly to the
 Wife. Still further, if for any reason the State
 Teachers Retirement will not honor the Deduction Order
 concerning the Wife's share of the Husband's retirement
 benefit, then the Husband will pay directly to the Wife
 the sum of $1,767.50 of monthly retirement benefits from
 the State Teachers Retirement system beginning with the
 first month he receives benefits. Still further, the
 Husband shall elect the survivor annuity option
 concerning his State Teachers Retirement benefits and he
 shall designate the Wife as beneficiary of said survivor
 annuity up to the amount of said annuity benefits. Still
 further, the Husband shall elect a survivor benefit
 which survivor benefit shall pay to the Wife the amount
 of either the $1,767.50 for retirement [sic] for the
 remainder of her life.
 Still further, if in the future the Ohio law or any
 Federal law is amended or enacted which would permit the
 Husband's retirement benefits to be divided by an
 appropriate Qualified Domestic Relations Order, or other
 Court order, then the parties agree to modify this
 provision of their Separation Agreement to permit a
 Court of competent jurisdiction to issue an appropriate
 Qualified Domestic Relations Order, or other Court
 order, to permit the direct payment of the Wife's [sic]
 of the Husband's retirement benefits to her. Further,
 each party will cooperate with the other party in the
 preparation, execution and submission of any further
 appropriate Qualified Domestic Relations Order, or other
 Court order, in regards to the division of the Husband's
 retirement benefits. Still further, the parties agree
 that the Common Pleas Court of Montgomery County, Ohio,
 Division of Domestic Relations, shall have continuing
 jurisdiction over this provision of the parties'
 Separation Agreement, in order to approve an appropriate
 Qualified Domestic Relations Order, or another Court
 order, if either of the two options becomes feasible for
 the division of the retirement benefits in the future.

Id. at ¶ 8-11.
 JACKSON, 23CA13

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 {¶20} Shortly after the court finalized the parties' divorce

decree, the husband filed a "designation of beneficiaries prior

to service retirement" with STRS. Id. at ¶ 12. The husband did

not, however, designate his former wife "as the primary

beneficiary to receive survivor benefits in the event of his

death before retirement." Id. Instead, he "directed STRS to

apply the statutory succession of beneficiaries, which did not

include ex-spouses." The husband then remarried, which "revoked

the beneficiary designation on file, pursuant to R.C.

3307.562(B)." Id.

 {¶21} The husband died before he retired. At the time, he

did not have a valid beneficiary designation on file, so STRS

applied the statutory succession under R.C. 3307.562(C), which

designated the surviving spouse as the primary beneficiary.

Consequently, the husband's new wife began receiving 100 percent

of the husband's survivor benefits.

 {¶22} Shortly thereafter, the former wife filed a complaint

against the new wife that asked the court to impose a

constructive trust over the new wife's share of the survivor

benefits in accordance with the divorce decree. The parties

subsequently filed summary judgment motions. The trial court
 JACKSON, 23CA13

 13
concluded that "STRS benefits are governed exclusively by

statutes, which require STRS to pay survivor benefits to the

individual statutorily entitled to the benefit." Id. at ¶ 15.

The court found that the new wife was statutorily entitled to

the husband's STRS benefits as the surviving spouse. The former

wife appealed.

 {¶23} On appeal, the former wife argued that the trial court

incorrectly determined that it could not impose a constructive

trust over benefits paid to the new wife. She asserted that

"the parties to the divorce took extraordinary measures to

ensure that she received her fair share of the benefits that

were earned during the parties' 30–year marriage, by providing

for all conceivable scenarios regarding the STRS benefits:

retirement with a pension option; retirement with a ‘lump sum

option; disability; and death before retirement." Id. at ¶ 21.

 {¶24} The Fischbach court noted that courts cannot impose a

constructive trust directly over a member's STRS survivor

benefits. The court concluded, however, that a court could

impose a constructive trust over the STRS survivor benefits paid

to a surviving spouse. The court explained:

 The divorcing parties in this case agreed that [the
 husband] would designate [his former wife] as the
 JACKSON, 23CA13

 14
 beneficiary of his survivor annuity and would elect a
 survivor benefit that would pay [his former wife]
 $1,767.50 monthly for the remainder of her life. The
 parties also agreed that if Ohio law were subsequently
 amended to permit [the husband]'s retirement benefits to
 be divided by an appropriate QDRO or other court order,
 the separation agreement would be modified. And
 finally, the parties agreed that the trial court would
 retain jurisdiction over this provision in the
 separation agreement to approve an appropriate court
 order.
 After the decree and separation agreement were
 filed, Ohio law was amended to allow courts to issue
 DOPOs that can divide public retirement benefits. As
 was noted in Romans[ v. Romans, 2006-Ohio-6554 (9th
 Dist.)], DOPOs are limited to retirement benefits,
 because the alternate payee's rights to benefits
 terminate under R.C. 3105.86 upon the death of the
 pension participant or the alternate payee, whichever
 occurs first. 2006-Ohio-6554, at ¶ 13. Bargained-for
 survivorship benefits may be received, however, not
 through direct payments by the public retirement fund,
 but through a constructive trust equitably imposed on
 property in the hands of a private party. Id. at ¶ 23.
 "Prior to retirement, the participant may designate
 whomever he wishes as his beneficiary as there is not
 spousal consent required for the election of a
 beneficiary. R.C. 3307.562(B). This beneficiary
 designation is only valid prior to retirement." Romans
 v. Romans, 2006-Ohio-6554, ¶ 11. Thus, [the husband]
 could have designated [his former wife] as his
 beneficiary at any time before his death, and that
 designation would have been effective to establish [his
 former wife] as his beneficiary for survivorship
 benefits, because [the husband] died before retiring.
 And [the husband] was ordered to designate [his former
 wife] as his beneficiary under the divorce decree.
 Therefore, his failure to do so was wrongful, and [the
 new wife] received, and continues to receive,
 survivorship benefits as a result of [the husband]'s
 wrongful failure to have designated [his former wife]
 as his beneficiary. As a result, [his former wife]'s
 JACKSON, 23CA13

 15
 receipt of these benefits is the inequitable result of
 [the husband]'s wrongful act (or omission to act), and
 the imposition of a constructive trust is an appropriate
 equitable remedy.

Id. at ¶ 61-63. The court thus concluded that "the trial court

erred in refusing to impose a constructive trust on funds held

by" the new wife. Id. at ¶ 65.

 {¶25} More recently, the Second District Court of Appeals

distinguished Fischbach. Smith v. Farmer, 2022-Ohio-4180 (2d

Dist.). In Smith, the former wife alleged that she was entitled

to a share of her former husband's Ohio Police and Fire Pension

Fund (OP&F) survivor benefits. The parties' divorce decree

provided that the former wife was to receive half of the

husband's "gross monthly benefits, including any increases" and

further specified that the former wife would "be named the

surviving spouse if the pension plan later was modified to

provide for a surviving spouse benefit." Id. at ¶ 4. The trial

court later entered a qualified domestic relations order (QDRO)

but subsequently vacated it as improper. The court entered a

second order directing that the former wife receive one-half of

the husband's "gross monthly benefit as spousal support." Id.

at ¶ 5. This second order "did not mention the conditional

surviving spouse benefit." Id.
 JACKSON, 23CA13

 16
 {¶26} A few years later, the husband remarried and remained

married until his death 26 years later. Upon his death, the new

wife received statutory survivor benefits, and the husband's

"spousal support obligation to [his former wife] terminated."

Id. at ¶ 7.

 {¶27} The former wife filed a complaint against the new wife

and alleged that the new wife's receipt of survivor benefits

constituted unjust enrichment and conversion. She also alleged

that the husband had breached their contract, i.e., the divorce

decree, by failing to ensure that she was designated the

surviving spouse. The former wife sought monetary damages, a

constructive trust, and an injunction.

 {¶28} Both parties later filed summary judgment motions.

The former wife argued that the new wife "was unjustly enriched

by her receipt of survivor benefits from OP&F and that [the

former wife] . . . was entitled to a constructive trust, in

accordance with Fischbach . . ." Id. at ¶ 10. The trial court

denied the former wife's summary judgment motion and granted the

new wife summary judgment. The court distinguished Fischbach by

"stating that it ‘cannot find that the [new wife]'s retaining

the survivor benefits she applied for, and which OP&F granted
 JACKSON, 23CA13

 17
her, was based on misrepresentations, fraud, or deception' by

[the new wife]." Id. at ¶ 13. The former wife appealed.

 {¶29} On appeal, the court first rejected the argument that

imposing a constructive trust required a finding of wrongful

conduct such as fraud. Id. at ¶ 24. The court next determined

that the plain language contained in R.C. Chapter 742 prevented

the former wife from qualifying as a "surviving spouse."

 {¶30} The court also distinguished its earlier Fischbach

decision. The court explained that in Smith

 the recipient of statutory survivor benefits is
 determined solely by the statutory language. Under the
 plain language of R.C. 742.37(D) and R.C. 742.58, [the
 new wife] was entitled to those survivor benefits as the
 surviving spouse. Unlike the plan participant in
 Fischbach, who could have taken action to designate his
 former spouse as a beneficiary in accordance with the
 divorce decree but failed to do so, [the husband] had no
 ability to designate [the former wife] as his surviving
 spouse under R.C. 742.37(D) or R.C. 742.58. Contrary to
 [the former wife]'s assertion, there was no paperwork
 that [the husband] could have submitted to designate her
 as the surviving spouse for purposes of surviving spouse
 benefits.

Id. at ¶ 53.

 {¶31} The Smith court found the situation

 more analogous to Cosby, in which the supreme court
 stated that it was not proper to impose a constructive
 trust when the trust would result in the reallocation of
 pension funds in a manner contrary to the statutory
 mandates of the public pension plan. The divorce decree
 JACKSON, 23CA13

 18
 cannot provide [the former wife] with statutory survivor
 benefits contrary to the mandates of R.C. 742.37(D), nor
 can a constructive trust be used to circumvent the fact
 that R.C. Chapter 742 provides statutory survivor
 benefits to Farmer as the surviving spouse.

Id. at ¶ 54.

 {¶32} The court thus concluded that the new wife's "receipt

of survivor spouse benefits from OP&F is not inequitable as a

matter of law" and that the former wife did not have any "claim

over those funds." Id. at ¶ 55. The court thus affirmed the

trial court's judgment.

 {¶33} In the case sub judice, we believe that Schrader and

Smith control the outcome. Appellee, as the surviving spouse,

is statutorily entitled to receive Plymale's PERS survivor

benefits. See, e.g., R.C. 145.43(D)(1); R.C. 145.45(A)(1). As

we did in Schrader, unfortunately we must agree with the trial

court's conclusion and reject appellant's request to impose a

constructive trust that would be contrary to the statutory

scheme. We reiterate that "nothing in the Cosby case . . .

prevent[ed] its application" simply because the parties' divorce

decree included a provision that required one party to designate

the other party the beneficiary of PERS benefits. As we stated

in Schrader, "The gist of the holding in Cosby is that divorce
 JACKSON, 23CA13

 19
proceedings could not circumvent the statutory provisions for

the distribution of death benefits from public pensions. That

statement of public policy is the same regardless of the

particular wording of the divorce decree." Id. at ¶ 28.

 {¶34} Additionally, as we observed in Schrader, "we are not

unsympathetic to appellant's plight." We further note that the

evidence indicates that appellant received her 25 percent share

of Plymale's retirement benefits paid during his lifetime.

Appellee submitted an affidavit attesting that Plymale received

75 percent of his retirement benefits and that she reasonably

believed appellant received her 25 percent share. Appellant did

not submit any evidence to the contrary. Thus, although

appellant may not be entitled to a constructive trust over 25

percent of the survivor benefits, she did receive 25 percent of

the retirement benefits paid during Plymale's lifetime. Any

inequity that remains is for the General Assembly, not this

court, to resolve.

 {¶35} Accordingly, based upon the foregoing reasons, we

overrule appellant's sole assignment of error and affirm the

trial court's judgment.

 JUDGMENT AFFIRMED.
 JACKSON, 23CA13

 20
 JUDGMENT ENTRY

 It is ordered that the appeal be affirmed and that appellee

recover of appellant the costs herein taxed.

 The Court finds there were reasonable grounds for this

appeal.

 It is ordered that a special mandate issue out of this

Court directing the Jackson County Common Pleas Court to carry

this judgment into execution.

 A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

 Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

 For the Court

 BY:__________________________
 Peter B. Abele, Judge

 NOTICE TO COUNSEL

 Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
 JACKSON, 23CA13

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