COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68686 META BRAIN/MIND BIOMEDICAL : RESEARCH FOUNDATION, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION MARY GORGES, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 244088 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Denise J. Knecht Timothy S. Williams DENISE J. KNECHT & ASSOCIATES CO., L.P.A. 75 Public Square, Suite 1300 Cleveland, Ohio 44113 For defendants-appellees: Nicholas E. Phillips PHILLIPS & MILLE CO., L.P.A. 7530 Lucerne Drive, Suite 200 Middleburg Heights, Ohio 44130 -2- NAHRA, J.: Plaintiffs-appellants Meta Brain/Mind Biomedical Research Foundation and Krystina J. Rymsky (hereinafter referred to in the singular as "Rymsky") appeal from the trial court's findings of fact and conclusions of law which essentially determined that the real property at issue in this case belonged to defendant-appellee Mary Gorges. The relevant facts as gleaned from the record on appeal follow. Appellee is a widow over seventy years of age. Appellee's son Denis Gorges was apparently an inventor of "medical" equipment and a self-styled "entrepreneur" who marketed his inventions and also used several aliases in his business dealings with others. In 1978 Denis married Linda Gorges (n.k.a. Linda Hayes); thereafter, she took part in Denis' business dealings. Over the years of their marriage, the couple conceived of approximately eight different names for their various enterprises which were used to hold business assets. None of these names was ever officially incorporated. One of the names used was "Syntax" or "Syntax Research Unlimited." Appellee apparently got along well with her son's wife. In early 1986, Denis and Linda began leasing the property at issue in this case, a house located at 5574 Broadview Road in Cleveland, Ohio ("the property"), permanent parcel number 011-11- 069. They used the services of a real estate agent in matters dealing with the property. The property was originally leased in -3- Linda's name; eventually, she signed a purchase agreement with her name over the word "Syntax." Although Denis and Linda moved into the house, they began experiencing marital difficulties and in May 1986 Linda filed for divorce. During this same time period, the couple was sued by a former business associate of Denis'. Denis did not contest the divorce, which became final in August 1986. No real property was involved in the decree. Linda was then dismissed as a party from the aforementioned lawsuit. In February 1987, through a real estate agent and an escrow agent, the property was purchased from the original owner. Although neither of these agents was quite sure exactly who the purchaser was, the original owner signed a warranty deed naming Linda Gorges as the grantee. This deed was duly filed in the county recorder's office. That same day, Linda Gorges signed a quitclaim deed granting the property to "SYNTAX, a sole proprietorship exclusively owned by Mary M. Gorges," appellee herein. This deed was also duly filed with the county recorder. In May 1987, Linda filed a suit in the Cuyahoga County Court of Common Pleas against "Syntex (sic), a sole proprietorship exclusively owned by Mary M. Gorges," appellee, and Denis, seeking to have the quitclaim deed set aside. In July 1987, while this suit was pending, the State of Ohio issued an official certificate in appellee's name permitting her to use the fictitious business name "Syntax." -4- In August 1987, another deed to the property was prepared. On its face, the grantor was stated to be "Syntax Mary M. Gorges dba." Although the grantee's name was stated to be "Syntax, Inc.," the grantee's address was listed as "11574, Broadview Road. . . ." Moreover, there was no such corporation in existence at that time. Furthermore, on the reverse side, appellee's name was signed in two places, viz., as the grantor, above the typewritten words "Mary Gorges dba Syntax," and as a witness. The signature on the witness line was crossed out. The deed was notarized; however, it was not filed with the county recorder. The record reflects Linda's lawsuit was eventually settled to her satisfaction sometime in 1988 or 1989. Denis continued to live in the house on the property. He paid expenses and property taxes but no rent to appellee. Appellee provided him with many household goods. In 1990, Denis met appellant Rymsky. He soon involved her in his business dealings. Moreover, by November 1990, the two were also romantically involved. In January 1991, Rymsky sold her own home and moved into the house with Denis. In the spring of 1991 Rymsky created her own business, appellant Meta Brain/Mind Biomedical Research Foundation. The business was operated out of the house on the property and Rymsky used the office furnishings already in the house. She and Denis continued to work together. During this period of time, Denis held many of his assets in a checking account at Society National Bank which bore the name "Syntax Leasing;" the property's address was printed on the checks. -5- The account was originally opened in 1987, listed in bank records as a "sole ownership" account, and both appellee and Denis' names were on the signature cards. However, only Denis wrote checks on this account. On July 3, 1991, a check for $45,000.00 was deposited into the account. In the "memo" portion, the check bore the typewritten notation "Meta Brain/Mind," with the following printed by Rymsky in her own hand: "for balance of payment on Syntax, business and all properties, real estate (PP #011-11-069), equipment, fixtures, furniture and patent . . . ." The payee on the check was typed in as "M. Gorges/Syntax." On its back, the check was endorsed with appellee's name. Prior to the deposit of this check, the account's balance was $3,003.50. From July 5 to August 31, 1991, Denis wrote several checks on the account in the total amount of $45,450.00. Of this amount, all of the funds either went into Rymsky's own personal bank account or were paid to her or her business in cash. Following this activity, the balance of the "Syntax Leasing" account was $3,043.23. On August 10, 1991, Rymsky was designated as the "sole owner" of the account and Denis was designated as an "authorized signer." The record reflects appellee did not like Rymsky and refused to acknowledge Rymsky's relationship with her son. The record also reflects that in July 1992, Denis contacted an attorney and had another deed for the property drafted; the deed indicated the grantor as "Syntax, a sole proprietorship exclusively owned by Mary -6- M. Gorges, a widow" and left the grantee's name blank. Appellee refused to sign this deed. Denis died shortly thereafter. His will was probated and his estate, although it had over $400,000.00 in debts, was eventually settled. Rymsky was not named as a beneficiary of Denis' estate; moreover, the property was not included in the estate. In October 1992, appellee began eviction proceedings to remove Rymsky from the property. On December 14, 1992, Rymsky filed the instant case against 1 appellee Mary Gorges and "Syntax," averring, inter alia, that she bought the property pursuant to an agreement and seeking specific performance of that agreement. On February 3, 1993, appellee filed an answer and also a counterclaim. Therein, appellee asserted that Rymsky was unlawfully occupying the premises, had converted some of appellee's personal property, and had inflicted emotional distress. Appellee included a request for the appointment of a receiver for the property. Nine days later, on February 12, however, appellee filed an "amended answer/counterclaim" which deleted the latter request. In the interim, on February 8, Rymsky had filed her answer to the counterclaim which she served on appellee on February 16. Rymsky averred she had "paid in full" for the property and, 1 Although another defendant was named in the complaint and Rymsky eventually obtained a default judgment against him, he is not a party to this appeal and will not be mentioned hereafter. -7- further, that appellee was merely a "straw man" and had no title to the property. On March 26, 1993, appellee requested leave to file a second amended counterclaim. The trial court granted her request. Appellee's new pleading again deleted the request for a receiver; instead, it included a claim concerning Rymsky's refusal to leave the premises after notice to do so had been served. Discovery proceeded in the action. On November 12, 1993, appellee requested leave to file a second amended answer to Rymsky's complaint. Appellee stated her reason: that a new defense had arisen as the result of discovery, viz., lack of consideration. The trial court granted her request. On February 24, 1994, Rymsky requested leave to file an amended complaint, seeking to add a claim of promissory estoppel against "Denis Gorges" and Syntax. The trial court overruled Rymsky's request. On June 2, 1994, appellee filed a motion to amend her prayer pursuant to statute. On June 10, 1994, Rymsky filed a "motion to amend complaint to conform to the evidence." Rymsky sought to add an averment that Syntax was an entity owned by Denis Gorges and, further, again requested permission to add a claim for promissory estoppel. On June 15, 1994, the trial court denied Rymsky's motion. That same day, Rymsky dismissed her complaint pursuant to Civ.R. 41(A)(1)(a). Appellee filed a request to proceed to trial on her counterclaims. Appellee's request was later denied. -8- The record reflects trial was eventually scheduled for December 12, 1994. In October, Rymsky concluded negotiations with a Louisiana corporation for permission to use the name "Syntax, Inc." in Ohio for the period of one year. By November, Rymsky had formed an Ohio corporation by that name with herself as the sole shareholder. On December 5, 1994, Rymsky went with her attorney to the county recorder's office. In her possession was the previously unrecorded deed of August 1987 with "Syntax, Inc." as the grantee and appellee's notarized signature affixed thereto. At the recorder's office, the clerk pointed out that the grantor's name on the front was inconsistent with that on the back. Rymsky then altered the grantor's name on the front, and, moreover, altered the address of the grantee to read "5574" rather than "11574." Rymsky then had the deed recorded. At the same time, she filed and recorded a deed to the property from "Syntax, Inc." to herself as the grantee. On December 13, 1994, appellee filed a formal motion to reschedule trial due to the occurrence of the foregoing events. Although the trial court later issued a judgment entry denying appellee's motion, the record reflects trial was reset for February, 1995. On January 18, 1995, appellee filed a "supplemental/amended counterclaim." In addition to the previous claims, appellee made an averment concerning Rymsky's alteration and recording of the August 1987 deed. Appellee requested a declaratory judgment -9- voiding the deeds filed on December 5, 1994 and naming her as owner of the property. Trial commenced on February 6, 1995. The trial court heard the testimony of several witnesses and received numerous documents into evidence. On February 15, 1995, the trial court issued a judgment for appellee, together with thirty-three findings of fact and twelve conclusions of law. Although the trial court determined appellee had not proved her claims for unjust enrichment, conversion of personal property, and infliction of emotional distress, it granted her request for a declaratory judgment. Rymsky was ordered to vacate the premises, appellee was declared owner of the property, and the deeds recorded by Rymsky on December 5, 1994 were voided. Thereafter, Rymsky filed a motion for a new trial, which the 2 trial court subsequently overruled. She then filed a timely appeal in this court, presenting five assignments of error for review. I. Rymsky's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO DEFENDANT, WHERE THE FINDINGS OF FACT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WHERE SOME FINDINGS OF FACT ARE CLEARLY ERRONEOUS. Specifically citing fifteen of the trial court's findings of fact to support her argument, Rymsky asserts the judgment for 2 Rymsky's motion was not included in the record on appeal. See App.R. 9(A). -10- appellee was inconsistent with the manifest weight of the evidence adduced at trial. The Supreme Court of Ohio recently reiterated the standard for this court's review when the issue of manifest weight of the evidence is raised. In Myers v. Garson (1993), 66 Ohio St.3d 610, the court cautioned as follows: * * * [W]here the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d 1273, 1276; and Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 10 OBR 500, 462 N.E.2d 407. * * * As this court observed in Seasons Coal, supra, 10 Ohio St.3d at 80, 10 OBR at 410, 461 N.E.2d at 1276: "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." * * * Thus, we reaffirm our prior reasoning in Seasons Coal, supra, and hold that an appellate court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court. (Emphasis added.) Mindful of the foregoing standard, this court has reviewed the record and cannot agree with Rymsky's assertion, since most of the findings of fact rest directly upon the credibility of the witnesses who testified at trial. -11- Clearly, given: 1) the conflicting versions of what occurred in business and personal dealings between the parties; 2) the biases and ignorance of some of the witnesses concerning those occurrences; and 3) the carefully phrased testimony of those involved in Denis Gorges' schemes, the trial court was required to do a great deal of weighing in declaring its findings in this case. Rymsky initially challenges the trial court's findings concerning the "source of funds" used in the original purchase of the property. From Linda Gorges Hayes' testimony, however, the trial court could have found that although she stated she and Denis bought the property with their own funds, the actual source of these funds was a mystery and that, ultimately, the property was given by her to appellee in settlement of claims between the three Gorges following the divorce. Secondly, although Rymsky asserts otherwise, there was direct evidence to support the trial court's finding that appellee was registered as the owner of the Syntax name. Moreover, the evidence demonstrated that after the deed to the property was placed in appellee's name "dba Syntax," the use of the single word "Syntax" was used only with relation to appellee, even by Denis. Furthermore, from appellee's testimony, the trial court was justified in finding that appellee was unaware of Denis' business dealings and bank accounts subsequent to the placing of the property in her name, particularly with regard to those involving Rymsky. -12- Rymsky also challenges the trial court's finding that, in essence, the $45,000.00 she claims to have paid in 1991 to buy the assets of the non-existent "Syntax, Inc." simply reverted back to her. Rymsky testified most of the money was used to pay "their" (that is, hers and Denis') bills. However, she did not support this assertion and the documentary evidence from the banks belies her testimony on this matter. Rymsky also presents an argument that the trial court neglected to find Denis intended to give the property to her prior to his death. There was no evidence, however, that Denis had any real assets; further, the evidence affirmatively showed Denis did not follow through with his attempts to wrest title to the property away from appellee. Finally, the trial court was completely correct in finding that Rymsky "altered" the August 1987 deed when she presented it at the county recorder's office in December 1994. Webster's New Collegiate Dictionary (1976), defines the word "alter" thusly: "to make different without changing into something else." Obviously, her "corrections" made the deed different so that it would be accepted as a valid document for filing purposes. Therefore, after a thorough review of the record, this court has determined the trial court's findings of fact were not against the manifest weight of the evidence. Strah v. Lake Cty. Humane Soc. (1993), 90 Ohio App.3d 822 at 836; Kroeger v. Ryder (1993), 86 Ohio App.3d 438; cf. Pettet v. Pettet (1988), 55 Ohio App.3d 128; Freeman v. Westland Builders, Inc. (1981), 2 Ohio App.3d 212. -13- Accordingly, Rymsky's first assignment of error is overruled. II. Rymsky's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO DEFENDANT WHERE THE CONCLUSIONS OF LAW ARE NOT SUPPORTED BY APPLICABLE LAW. Rymsky argues the lack of specific "legal citation" in the conclusions of law indicates the trial court's failure to review and decide this case in light of the appropriate law. Civ.R. 52 states: RULE 52. FINDINGS BY THE COURT When the questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law. When a request for findings of fact and conclusions of law is made, the court, in its discretion, may require any or all of the parties to submit proposed findings of fact and conclusions of law; however, only those findings of fact and conclusions of law made by the court shall form part of the record. Findings of fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to Rule 12, Rule 55 and Rule 56. An opinion or memorandum of decision filed in the action prior to judgment entry and containing findings of fact and conclusions of law stated separately shall be sufficient to satisfy the requirements of this rule and Rule 41(B)(2). -14- This court first notes that nowhere in the language of the rule can it be determined the trial court is required to particularly identify the case authority upon which it relies to come to its legal conclusions. See, e.g., Blevins v. Sorrell (1990), 68 Ohio App.3d 665. Next, although Rymsky initially argues the trial court should have concluded Denis created an equitable trust in the property for himself, the authority she cites to support her position is inapplicable to the facts herein. The evidence demonstrated Linda transferred the property to appellee, not Denis. Cf., Roberts v. Remy (1897), 56 Ohio St. 249. Moreover, Rymsky's arguments do not help her with regard to the property, since the assets in any such trust would flow only to Denis' estate; she has no standing to claim them. See, e.g., Glick v. Dolin (1992), 80 Ohio App.3d 592; Graham v. Keefer (Oct. 25, 1989), Wayne App. No. 2460, unreported. Rymsky also argues the trial court failed to consider whether her December 1994 attempt to transfer the property to herself could not be deemed valid on one of the following grounds, viz., pre- incorporation transactions, corporate estoppel, and estoppel by deed. This court also finds this argument insupportable. First, when the deed from appellee to "Syntax, Inc." was executed in 1987, "Syntax" was merely a fictitious name held by appellee. It was neither a de facto nor a de jure corporation, thus it was incapable of holding title and any purported transfer of the property to it was void. See, e.g., Thomas v. City of Columbus (1987), 39 Ohio App.3d 53. Furthermore, without the -15- existence of a de facto or a de jure corporation at that time, Rymsky's subsequent attempt to transfer the property to "Syntax, Inc." in 1994 was ineffective. Id. Second, since there was no evidence indicating appellee actually ever conducted any business as "Syntax, Inc.," the trial court was not required to address the theory of corporate estoppel. See, e.g., Kardo v. Adams (6th Cir. 1916), 231 F. 950; cf. Lettinga v. Agristor Credit Corp. (6th Cir. 1982), 686 F.2d 442. Similarly, the theory of estoppel by deed cannot be applied to the facts of this case, since appellee neither executed the August 1987 deed in a purported corporate capacity nor filed the deed. Rymsky further argues that with regard to the $45,000.00 check the trial court failed to properly apply R.C. 1335.04, the "Statute of Frauds." To satisfy this statute, a memorandum must state the essential terms of the agreement with reasonable certainty. North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342. Rymsky claimed Denis agreed to sell all the assets of Syntax to her. It can readily be observed, however, that the $45,000.00 check is not signed by Denis and appellee, both of whom were "the parties to be charged." Moreover, it does not state the full purchase price that had been agreed upon. Finally, citing Tier v. Singrey (1951), 154 Ohio St. 521, Rymsky asserts the evidence supports the conclusion she satisfied the doctrine of part performance. However, based upon the documentary evidence the trial court justifiably found the -16- $45,000.00 that Rymsky "paid" as consideration for the assets of "Syntax" was returned to her from "Syntax Leasing" within a time period of less than two months. Under these circumstances, Rymsky could not avail herself of the doctrine of part performance. Id. For the foregoing reasons, this court finds no error in the trial court's conclusions of law. Abney v. Western Res. Mut. Cas. Co. (1991), 76 Ohio App.3d 424. Accordingly, Rymsky's second assignment of error is also overruled. III. Rymsky's third assignment of error states: THE TRIAL COURT ERRED IN FAILING TO FIND UNJUST ENRICHMENT AS A MATTER OF LAW, WHERE DEFENDANT OBTAINED PROPERTY DESPITE PAYING NO MONEY, ENDORSED A $45,000 CHECK WRITTEN BY THE PLAINTIFF AND GIVING THE PLAINTIFF NOTHING IN RETURN, AND RECEIVED MORE THAN $19,000 WORTH OF HOUSE MAINTENANCE WHILE NOT COMPENSATING PLAINTIFF IN RETURN. Apparently without considering the ramifications of such an assertion, Rymsky declares the trial court should have found appellee was "unjustly enriched" under the facts of this case. First, she argues since appellee originally obtained the property from Denis without paying for it, in "equity," it belonged to Denis. This claim, however, belongs only to Denis' estate; Rymsky has no standing to raise it. Second, she argues that since she agreed with Denis to purchase the assets of the business and paid for them, she should be compensated. This argument is unavailing against appellee -17- because there was no evidence of either an agreement with appellee or that appellee ultimately obtained the $45,000.00. Rymsky also argues the trial court erred in refusing to give her "reimbursement" for her expenditures on the property. Along with this argument, she challenges the trial court's admission of a real estate broker's testimony concerning the rental value of the property. This court disagrees. The extent to which expert testimony and opinion evidence are received rests largely in the discretion of the trial judge. Camden v. Miller (1986), 34 Ohio App.3d 86 at 91. See, also, Frank v. Vulcan Materials Co. (1988), 55 Ohio App.3d 153. Preliminary questions under Evid.R. 104(A) concerning the qualifications of one called as a witness are determined by the trial court. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7 at 18. The witness's opinion must be based upon some superior knowledge of the matter. McQueen v. Goldey (1984), 20 Ohio App.3d 41 at 48-49. In this case, the evidence disclosed the witness possessed superior knowledge of the general rental values of properties in the area. Therefore, there was no abuse of discretion in the trial court's permitting the witness to testify. Furthermore, based upon the evidence, the trial court correctly concluded that Rymsky's expenditures on the property were more than offset by her continued occupation of it. Therefore, the trial court did not err in failing to either find appellee was unjustly enriched or "offset" Rymsky's expenditures while occupying the premises. -18- Accordingly, Rymsky's third assignment of error is also overruled. IV. Rymsky's fourth assignment of error states: THE LOWER COURT ERRED WHERE THE PARTIES RECEIVED UNEQUAL TREATMENT IN PRETRIAL ACTIVITY. Rymsky asserts the trial court's refusal prior to trial to permit her to amend her complaint, when contrasted with its granting of appellee's motions to amend her answer and counterclaim, demonstrates "innate unfairness." The record belies her assertion. Pursuant to Civ.R. 15(A), the decision to grant or deny a motion for leave to amend a pleading shall not be disturbed on appeal absent a showing the trial court abused its discretion. Easterling v. Am. Olean Tile Co., Inc. (1991), 75 Ohio App.3d 846. The movant must make a prima facie showing of support for new matters sought to be pleaded, and the motion must be timely. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120; Easterling v. Am. Olean Tile Co., Inc., supra; Edmondson v. Steelman (1992), 87 Ohio App.3d 455; Wells v. Bowie (1993), 87 Ohio App.3d 730. In this case, it is clear from a review of the proceedings below that appellee's motions to amend her answer and counterclaim met the necessary criteria while Rymsky's motions to amend her complaint did not. -19- Moreover, the trial court obviously acted in an impartial manner in overseeing pretrial activities, including discovery and scheduling. Laubscher v. Branthoover (1991), 68 Ohio App.3d 375; cf., Miller v. Lint (1980), 62 Ohio St.2d 209. This court has thoroughly reviewed the record and finds no basis for Rymsky's fourth assignment of error. It is accordingly overruled. V. Rymsky's fifth assignment of error states: THE LOWER COURT ERRED BY FAILING TO GRANT APPELLANTS' MOTION FOR NEW TRIAL. Rymsky argues the trial court abused its discretion in overruling her motion for a new trial. Her argument is not persuasive for the following reasons. First, since Rymsky's motion was not included in the record on appeal, this court cannot properly evaluate the trial court's consideration of the motion and must affirm its decision. Volodkovich v. Volodkovich (1989), 48 Ohio App.3d 313. Secondly, this court has stated the following: When a trial court's decision on a new trial motion involves questions of fact, "a reviewing court should view the evidence favorably to the trial court's action . . . ." Jenkins, supra, at 320. The exercise of that discretion may require an evaluation of witness credibility which is not apparent from the transcript. It measures the surrounding circumstances and the trial atmosphere to decide whether the . . . verdict resulted in manifest injustice. Id. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249. -20- Thirdly, after a review of the record and the applicable law, this court has found merit to none of Rymsky's first four assignments of error. Since, contrary to Rymsky's assertions, the trial court did not err in granting judgment to appellee, Rymsky's fifth assignment is unsubstantiated; therefore, it too is overruled. The judgment of the trial court is affirmed. -21- It is ordered that appellees recover of appellants their 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .