COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68352, 68353, 68354, 68355 MERCHANTS TOWEL SERVICE : COMPANY, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ROGER W. TRACY, TAX : COMMISSIONER : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Civil appeal from Board of Tax Appeals : Case Nos. 93-K-330; 93-K-331; 93-K-1356; and 93-K-1298 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Michael L. Thal, Esq. Betty D. Montgomery, Esq. 1836 Euclid Avenue, Attorney General of Ohio Suite 316 By: Richard C. Farrin, Esq. Cleveland, Ohio 44115 Assistant Attorney General State Office Tower - 16th Fl. 30 East Broad Street Columbus, Ohio 43215-3428 -2- HARPER, J.: This is a consolidated appeal involving the sale of trucks and/or repairs and repair parts related to trucks. In the underlying litigation, defendant-appellee, Roger C. Tracy, Tax Commissioner ("the Tax Commissioner"), denied, in separate proceedings, requests for sales tax refunds. In the first case, plaintiff-appellant, Merchants Towel Service Company (individually "Merchants"), appeals from the Board of Tax Appeals ("the B.T.A.") ruling which affirmed the Tax Commissioner's determination that Merchants was not entitled to a sales tax refund on the ground that Merchants' delivery trucks were not used directly in making retail sales. In the second case, plaintiff-appellant, Lakeside Supply Company (individually "Lakeside"), appeals from the B.T.A.'s affirmance of the Tax Commissioner's ruling that Lakeside was not entitled to a refund on the sales tax paid on the purchase of trucks and repairs to those trucks. Similarly, in the third case, plaintiff-appellant, Valley Ford Company (individually "Valley Ford"), appeals from the B.T.A.'s ruling which upheld the Tax Commissioner's finding that Valley Ford was not entitled to a sales tax refund, because the purchased trucks were not used in making retail sales. Collectively, appellants charge that the B.T.A. erred when it affirmed the findings of the Tax Commissioner. Appellants submit that they are entitled to the sales tax refund because the items in question were used directly in making retail sales. For the -3- reasons set forth herein, appellants' assignments of error are devoid of merit and the B.T.A.'s rulings are affirmed. I. Merchants is in the business of supplying bar towels, walk- off mats, rugs, dish towels, table linens, aprons and uniforms to bars, restaurants and small industrial concerns. Merchants uses eight trucks to deliver its supplies to its customers on a daily basis. At the beginning of the business day, each truck is loaded with "bundles" of merchandise and some of these are "prepared" bundles. The prepared bundles are based upon a particular customer's order and the customer's usage from the prior week. In addition, each driver carries "unprepared" bundles on the trucks. The unprepared bundles consists of items which are not part of a specific customer's order, but are carried to fill any additional needs the customer may have. In Merchants' cases, the sales tax refund claims relate to the tax paid on two assessments issued on its purchases of trucks and truck repair parts. In the first case, Merchants contested the Tax Commissioner's ruling denying its request for a sales tax refund in the amount of $603.96 from January 1, 1985 through December 31, 1987. (Case. No.93-K-330). In the second case, Merchants made a similar claim, but added that the Tax Commissioner erred when it denied Merchants a refund in the amount of $361.88 for the period of January 1, 1982 through December 31, 1984 (Case No. 93-K-331). Merchants claimed that it was exempted from the payment of sales tax pursuant to R.C. 5739.01(E)(2) and (O), which -4- were in effect at the time of the transactions. Specifically, Merchants asserted that the delivery trucks to which the parts and repairs were related were used directly in making retail sales. The Tax Commissioner denied Merchants' requests on the ground that the trucks were used primarily in delivering items Merchants sold to its customers, and R.C. 5739.01 did not include delivery of items in the definition of retail sales. Subsequently, the B.T.A. affirmed the Tax Commissioner's ruling. Lakeside is a wholesale distributor of plumbing, heating and industrial supplies. Lakeside utilizes trucks to deliver its ordered goods to its customers. Lakeside customers call their orders into the office. After the order is placed, it is packaged for delivery, loaded on the delivery trucks and delivered to the customer. Lakeside drivers also carry catalogs on the trucks. This enables the drivers, on their arrival at the customer's place of business, to take orders for additional merchandise. However, the additional orders are not filled from the stock on the truck, but rather the driver phones the additional orders to the Lakeside office. On the next business day, the orders are sent out on the delivery truck. Valley Ford applied for a refund of sales tax totaling $888.14 on behalf of its customer, Lakeside. This figure reflected $764.40 in sales tax which Valley Ford had collected from Lakeside on its purchase of a truck and $123.74 in sales tax which Valley Ford had collected on certain repairs which it performed on Lakeside's other -5- trucks. The Tax Commissioner denied the sales tax refund. Lakeside contested the Tax Commissioner's determination and subsequently appealed to the B.T.A. Before the B.T.A., Lakeside argue that its trucks were used directly in making retail sales. The B.T.A. nonetheless affirmed the Tax Commissioner's ruling. In the third case, Valley Ford filed a sales tax refund claim for $5,021.21, pursuant to R.C. 5739.07, relating to the period from January 1, 1988 through July 31, 1991 (Case No. 93-K-1356). Valley Ford's claim was on behalf of its consumer, Merchants. The claim reflected the sales tax paid by Merchants on its purchase of three trucks from Valley Ford. The Tax Commissioner denied Valley Ford's sales tax refund claim. Valley Ford's claim was rejected by the Tax Commissioner on the basis that Merchants used its trucks to deliver materials subsequent to their sale. The Tax Commissioner found, citing R.C. 5739.01(O), that the trucks were not used directly in making retail sales, but rather were used to deliver items. Valley Ford appealed the Tax Commissioner's ruling to the B.T.A. Before the B.T.A., Valley Ford contested the Tax Commissioner's ruling and argued that the Tax Commissioner erred when it determined that sales tax was due and payable on the purchases. The B.T.A. affirmed the Tax Commissioner's findings. Merchants, Valley Ford and Lakeside timely appeal from the B.T.A.'s rulings. The following five assignments of error are raised for this court to review: -6- I. THE BOARD OF TAX APPEALS ERRED IN DETERMINING THAT SALES TAX WAS DUE ON DELIVERY TRUCKS REPAIR PARTS. II. THE BOARD OF TAX APPEALS ERRED IN DECIDING THAT THE DELIVERY TRUCKS OF THE APPELLANTS WERE NOT USED DIRECTLY IN MAKING RETAIL SALES AND THUS WERE NOT EXEMPT FROM TAXATION PURSUANT TO OHIO REVISED CODE 5739.01(E)(2). THE COMMISSIONER DETERMINED SALES TAX WAS COLLECTIBLE ON VALLEY FORD'S SALE OF A TRUCK TO LAKESIDE. III. THE BOARD OF TAX APPEALS ERRED IN DENYING APPELLANTS A REFUND. IV. THE BOARD OF TAX APPEALS ERRED IN NOT READING O.R.C. 5739.01(O) IN PARI MATERIA WITH O.R.C. 5739.01(E)(2). V. THE BOARD OF TAX APPEALS ERRED BY NOT FINDING THAT THE EVIDENCE AND TESTIMONY OF APPELLANTS REBUTTED THE STATUTORY PRESUMPTION THAT A SALE TOOK PLACE AT APPELLANTS' PLACE OF BUSINESS. II. Our analysis begins with setting forth the appropriate standard of review when an appellate court reviews a ruling from the B.T.A. R.C. 5717.04 provides that this court's review of the B.T.A.'s ruling is limited to a determination of whether the B.T.A.'s decision was reasonable and lawful. PPG Industries, Inc. v. Kosydar (1981), 65 Ohio St.2d 80. Upon reviewing an appeal from a decision of the B.T.A., a reviewing court should not weigh the evidence, but rather, must decide whether the decision of the Board was unreasonable, or unlawful. Kubicki v. Limbach (1991), 62 Ohio St.3d 320. The court of appeals is bound by the record that was before the B.T.A. and may not substitute its judgment for that of the board. Olf v. Porterfield (1969), 19 Ohio App.2d 211. In -7- addition, reviewing courts will not overrule findings of fact of the B.T.A. that are based upon sufficient probative evidence. Hawthorne Melody, Inc. v. Lindley (1981), 65 Ohio St.2d 47. Moreover, the B.T.A. has wide discretion in determining the weight to be given to the evidence and the credibility of witnesses before it. Cardinal Fed. S. & L. Assn v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d 14, paragraph three of the syllabus. Accordingly, the applicable standard of review of the B.T.A.'s determination in the consolidated appeals is whether the B.T.A.'s denial of appellants' sales tax exemption claims were unreasonable or unlawful. In the first assignment of error, Merchants and Lakeside attack the B.T.A.'s determination that sales tax was due on delivery truck repair parts. Specifically, Merchants contends that the B.T.A. erred as it is entitled to a refund of sales tax for the delivery truck repair parts purchased pursuant to R.C. 5739.01(E)(2) and (O). The Tax Commissioner rejected Merchants' argument, in the proceedings below, on the ground that Merchants did not apply the applicable rule of law pertinent to the facts of the case. Pursuant to R.C. 5739.02, counties and other taxing authorities are permitted to impose a sales tax on a retail sale 1 made in the state. R.C. 5739.01(E), as it was in effect at the 1 Section 5739.01(E) has been amended, effective 1/1/93, 3/15/93, and 7/1/93, and no longer contains this exception. -8- time of this transaction, defined the term "making retail sales." In pertinent part, it reads: (E)"retail sale" and "sales at retail" include all sales except those in which the purpose of the consumer is: *** (2) *** to use or consume the thing transferred *** direct in making retail sales ***. *** R.C. 5739.01(O) provides that the delivery of sold items does not fall within the exception set forth by R.C. 5739.01(E)(2). In pertinent part, R.C. 5739.01(O) reads: (O) "Making retail sales" means the effecting of transactions wherein one party is obligated to pay the price and the other party is obligated to provide a service or to transfer title to or possession of the item sold, but it does not include the delivery of items thereafter nor the preliminary acts of promoting or soliciting the retail sales, other than the distribution of printed matter which displays or describes and prices the item offered for sale. Determinations of the Tax Commissioner are presumptively valid and must be upheld absent a demonstration that they are clearly unreasonable or unlawful. Hatchadorian v. Lindley (1986), 21 Ohio St.3d 66. A taxpayer challenging a finding of the Tax Commissioner must rebut that presumption and establish a right to the relief requested. Belgrade Gardens v. Kosydar (1974), 38 Ohio St.2d 138. The taxpayer has the burden of showing in what manner and to what extent the Tax Commissioner's determination is in error. Federated Dept. Stores, Inc. v. Lindley (1983), 5 Ohio St.3d 213. There are two fundamental rules that the B.T.A. must observe in determining the propriety of a tax exemption: (1) every sale or use of tangible personal property in this state is presumed to be -9- taxable and one claiming exemption from taxation must affirmatively establish its right to the claimed exception; (2) laws providing exceptions from taxation must be strictly construed in favor of taxation and against exception. Ball Corp. v. Limbach (1992), 62 Ohio St.3d 474; Bird & Son, Inc. v. Limbach (1989), 45 Ohio St.3d 76. Merchants and Lakeside rely on two theories to support their contention that the B.T.A. erred when it affirmed the Tax Commissioner's ruling. First, appellants assert that a sale is made upon the assumption of mutual obligation. See Deville Photography, Inc. v. Bowers (1959) 169 Ohio St. 267. Merchants insists that Deville controls in the case sub judice. Merchants submits Deville is applicable because the assumption of mutual obligation did not occur until Merchants' drivers were at the customer's place of business. To buttress its argument, Merchants points out that the prepared bundles were "estimates" rather than final orders requested by the customer. Therefore, the parties were not mutually obligated until the driver and the customer made adjustments to the goods at the customer's place of business. Moreover, the prepared bundles do not represent a set contract for specific items to be delivered. Turning to Merchants' second theory, Merchants contends that a sale occurs at the place of transfer of title or possession. In addition, a party is entitled to rebut the statutory presumption that the sale occurs at the place of transfer of title. See CNG Development Co. v. Limbach (1992), 63 Ohio St.3d 28, (a sale -10- normally occurs when the contract is completed by the seller's delivery of the goods; and sales tax may be imposed, where the transfer of title or possession of tangible personal property occurs). Merchants contends that CNG Development Co., is dispositive to this case insofar as, the transfer of the items occurred when Merchant drivers arrived at the customer's place of business. The Tax Commissioner found that DeVille was not dispositive to the issue in the disputed claim. CNG Development Co., according to the Tax Commissioner, was not persuasive because it addressed evaluating the creation of a contract, rather than determining the performance of that contract. Moreover, Merchants failed to rebut the statutory presumption that sales occur at the place of a vendor's place of business. CNG Development Co. The Tax Commissioner determined that the applicable case authority pertinent to determining the propriety of a claimed sales tax exemption, given the facts of the case, was articulated by the Ohio Supreme Court in Jewel Companies v. Porterfield (1970), 21 Ohio St.2d 97. In Jewel Companies, appellant sought a sales tax refund on the ground that delivery trucks were used by company salespersons to make retail sales. The Tax Commissioner found appellant's claims not to be well-taken and denied the tax refund. Subsequently, appellant appealed the Tax Commissioner's ruling to the B.T.A. On appeal to the B.T.A., appellant asserted that its trucks were used directly in making retail sales and that the sales -11- did not take place until the merchandise was delivered at the customer's place of business. The B.T.A. rejected appellant's argument on the basis that the trucks were primarily used for the solicitation of future sales and the delivery of previously ordered merchandise. Consequently, the B.T.A. affirmed the Tax Commissioner's ruling. Appellant appealed the B.T.A.'s ruling to the Ohio Supreme Court. Similarly, the Ohio Supreme Court rejected appellant's claim. The supreme court reasoned that accepting appellant's theory would constitute ignoring the "realities of appellant's operation," in light of the factual circumstances of appellant's sale procedures, i.e. that 80 to 85 per cent of its "sale" visits were used primarily to deliver previously ordered items. Id at 101. In the case at bar, the B.T.A. evaluated the claimed sales tax refunds in light of the "realities of the operation." Id. The evidence proffered by Merchants demonstrated that goods were sold prior to delivery and that modifications were made to those pre- existing sales by the driver at the customer's place of business. Richard Leissa, Vice-President of Merchants, testified about the company's procedures. He explained that Merchants used its trucks to deliver the goods to customers. The trucks were loaded with prepared bundles as well as unprepared bundles. Mr. Leissa estimated that 60-75 per cent of the goods carried on the trucks were items already ordered by the customers. When the drivers arrived at the customers' place of business, drivers made -12- adjustments to the orders from the unprepared bundles on the trucks. Based on this evidence, the B.T.A. concluded that Merchants was not entitled to sales tax refund in light of "the realities of appellant's operations." Id. The assessed trucks, repair and parts were not used directly in making retail sales and thus were not exempt from sales tax under R.C. 5739.01(E)(2) and (O). Evidence proffered by Merchants failed to substantiate its claim that retail sales were made from the trucks. In addition, the foregoing evidence did not rebut the statutory presumption that sales occurred at the vendor's place of business. Thus, the B.T.A.'s ruling was neither unreasonable nor unlawful in light of the foregoing evidence. Turning to Lakeside's claim, it asserts that the B.T.A. erred in affirming the Tax Commissioner's denial of a sales tax refund. The Tax Commissioner argued before the B.T.A. that Lakeside had the burden of affirmatively establishing its claim that retail sales were made directly from the delivery trucks. Lakeside failed to carry its burden of proof. Thus, the Tax Commissioner's position is that Lakeside's contention is devoid of merit, because Lakeside failed to rebut the statutory presumption that sales did not occur at the vendor's place of business. Lakeside proffered the following evidence. Steve Driscoll, the president of Lakeside, described the company's delivery procedures. Mr. Driscoll testified that the orders for the materials are called in, written up and packaged for delivery. -13- After the orders are packaged for delivery, Lakeside drivers deliver the materials to its customers. At the time of the delivery, the customers may modify an order from the catalog the driver carries with him. If the customer chooses to adjust the order, the driver calls the modification into the office. The newly ordered material is packaged for delivery and delivered on the next day. Given the foregoing evidence, the B.T.A. ruled that Lakeside failed to affirmatively establish its right to the sales tax refund because Lakeside failed to affirmatively establish that retail sales were made directly from the trucks. Upon this court's review of the record, both Lakeside and Merchants failed to proffer evidence to affirmatively establish that the B.T.A. erred when it concluded that sales tax was due on delivery truck repair parts. Factual determinations made by the B.T.A. may not be disturbed upon review under R.C. 5717.04 absent a showing that they constituted an abuse of discretion. K-Mart v. Limbach (1990), 53 Ohio St. 3d 266. In the case sub judice, there was evidence to enable the B.T.A to determine that sales tax was properly imposed on the truck repair parts. B.T.A.'s determination was reasonable and lawful. Accordingly, Merchants' and Lakeside's first assignment of error is overruled. In the second assignment of error, Lakeside contends that the B.T.A. erred when it determined that the delivery trucks were not used directly in making retail sales and thus not exempt from the sales tax pursuant to R.C. 5739.01(E)(2) and (O). They also assert -14- that the Tax Commissioner erred when he imposed a sales tax on Valley Ford's truck sales to Lakeside. The Tax Commissioner counters that Lakeside's assignment is devoid of merit. First, Lakeside has failed to demonstrate an abuse of discretion. Second, Lakeside has failed to affirmatively establish its right to a sales tax refund. Pursuant to R.C. 5739.01(E)(2), certain transactions are exempted from sales tax when the purpose of the consumer is "to use or consume the thing transferred *** directly in making retail sales ***." Jewel. The evidence before the B.T.A. failed to substantiate Lakeside's assertion that the Tax Commissioner erred when he determined that delivery trucks were not used directly in making retail sales. First, sales occurred before the delivery of the items by the truck drivers to their customers. Second, the trucks were used primarily to deliver materials that had been previously ordered and to solicit future sales. Third, Lakeside did not sell unordered merchandise off the trucks because Lakeside did not carry inventory on its trucks. Thus Lakeside failed to proffer evidence to affirmatively establish that its trucks were used directly in making retail sales. There was sufficient evidence for the B.T.A. to determine that Lakeside was not entitled to a sales tax refund based on the proffered evidence. The B.T.A. concluded that Lakeside failed to present evidence demonstrating that its trucks were comparable to a traveling showroom, with customers coming to the trucks, selecting -15- the necessary items and paying for the chosen items. Kubicki, Hawthorne. Lakeside further asserts that this court should reverse the B.T.A.'s rulings on the ground that the B.T.A.'s reasoning, i.e. the parts in question were not used directly in making retail sales, was erroneous. Lakeside cite Argo v. Limbach (1988) 36 Ohio St.3d 220, Thomas Steel Strip Co. v. Limbach (1991) 61 Ohio St.3d 40 and CNG Development Co., to support the proposition that the parts were used directly in making retail sales. This court has reviewed Argo, Thomas Steel Strip Co. and CNG Development Co. These cases are not to be dispositive to the issue raised by Lakeside, viz. whether the B.T.A. erred when it ruled that Lakeside failed to successfully rebut the statutory presumption that their sales occurred at the vendor's place of business. Moreover, we note that Argo, Thomas Steel Strip Co. and CNG Development Co. are distinguishable from the facts in the case herein. These cases did not analyze R.C. 5739.01(O), but addressed the question of when a sale occurs for the purposes of county permissive taxes versus the question of when a sales is effected. Accordingly, Lakeside's second assignment of error is overruled. In appellants' third assignment of error, appellants contend that the B.T.A. erred in denying appellants' sales tax refund. As stated infra, the B.T.A. must adhere to two fundamental rules when determining the propriety of a tax exemption. First, every sale or -16- use of tangible personal property in this state is presumed to be taxable and one claiming exemption must affirmatively establish its right to the claimed exemption. Second, laws providing exceptions from taxation must strictly be construed in favor of taxation and against exception. Bird & Son, Inc.; Ball Corp. In the case herein, the B.T.A. determined that Merchants and Lakeside failed to affirmatively rebut the statutory presumption that sales occurred at the vendor's place of business. The pertinent evidence showed that retail sales were not made from the delivery trucks at the customer's place of business. In addition, the evidence did not demonstrate that the customers could come to the trucks, select then pay for the items. Upon reviewing an appeal from a decision of the B.T.A., a reviewing court should not weigh the evidence but, rather, must decide whether the decision of the Board was unreasonable or unlawful. Kubicki, Olf. The B.T.A.'s determination was neither unreasonable, or unlawful in light of the proffered evidence. Given the foregoing, appellants' third assignment of error is overruled. In the fourth assignment of error, Merchants, Lakeside, and Valley Ford, collectively assert that the B.T.A. failed to construe (O)the statutes in pari materia. Specifically, they contend that R.C. 5739.01(E) should be construed in pari materia. The Tax Commissioner contends that this proposition of law should be rejected by this court as it is devoid of merit. It is a general principal of law that a statute is never to be construed in a manner which would render it meaningless or -17- needless. Celebrezze v. Hughes (1985), 18 Ohio St.3d 71; Brown v. Martinelli (1981), 66 Ohio St. 2d 45. As this court stated in Hughes: In construing these statutory provisions we are guided by the longstanding rule "'*** that the General Assembly is not presumed to do a vain or useless thing and that when language is inserted in a statute it is inserted to accomplish some definitive purpose.'" Martinelli ***. Martinelli, at 74. Appellants cite Thomas Steel Strip Co. to support the contention that R.C. 5739.01(E)(2) and (O) should be read in pari materia. In Thomas Steel Strip Co., the court addressed a sale for the purposes of calculating the permissive rates to apply to a given transaction. Id. Thus, Thomas Steel Strip Co. is readily distinguishable from this case, insofar as it did not contemplate the interpretation of R.C. 5739.01(O) in pari materia with R.C. 5739.01(E)(2). Therefore, appellants' reliance on Thomas Steel Strip Co., is misplaced. Moreover, the language of R.C. 5739.01(O) unequivocally provides that the delivery of items does not fall within the exception for things used directly in making retail sales. This court finds that the B.T.A. did not err in not reading R.C. 5739.01(O) in pari materia with R.C. 5739.01(E)(2) Accordingly, appellant's fourth assignment of error is overruled. In Merchant's and Lakeside's fifth assignment of error, the charge is that the B.T.A. erred by not finding that their evidence rebutted the statutory presumption that sales took place at appellants' place of business. -18- The Tax Commissioner submits that appellants' assignment of error should fail because appellants failed to offer evidence to rebut the statutory presumption contained in R.C. 5739.01(E) that "[a]ll sales are presumed to occur at the vendor's place of business ***." The BTA has wide discretion in determining the weight to be given to the evidence and the credibility of witnesses before it. Cardinal Fed. S.& L. Assn., paragraph three of the syllabus. Mr. Leissa, the vice-president of Merchants, testified that at the customer's place of business, Merchants drivers made modifications to the customer's previously ordered invoices, and depending upon the modifications, the customer could be credited or billed. Although customers may order additional items, the drivers must call to the office to make any alterations to the invoices and to make specific cash exchange. The foregoing evidence failed to support Merchants' contention that the sales did not occur at the vendor's place of business. Cardinal Fed. S. & L. Assn. Similarly, Lakeside failed to introduce evidence to rebut the statutory presumption that sales occurred at the vendor's place of business. Steve Driscoll, the president of Lakeside, testified that the trucks were used to deliver material to the customers after the sales were called into the store and the order was processed at the store. Lakeside was required to proffer evidence to rebut the statutory presumption that the sales occurred at its place of business, and failed to do so. -19- Upon this court's review of the record, in light of the evidence proffered by appellants, the B.T.A's rulings were neither unreasonable nor unlawful. Kubicki. Accordingly, appellants' fifth assignment of error is overruled. Judgments affirmed. -20- It is ordered that appellee recover of appellants its 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 Board of Tax Appeals 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. PATRICIA BLACKMON, P.J., CONCURS; ANN DYKE, J., CONCURS IN JUDGMENT ONLY. JUDGE SARA J. HARPER 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 .