COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73143 LASZLO J. HAMPEL : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION FOOD INGREDIENTS SPECIALTIES, : et al : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 308,050 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: ELLEN S. SIMON CHRISTOPHER P. THORMAN Attorneys at Law Lancione and Simon 1717 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1503 For defendant-appellant IRENE C. KEYSE-WALKER Food Ingredients Spec. : Attorney at Law Arter & Hadden 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 (Cont.) APPEARANCES (continued): For defendant-appellant Mary Lee Pilla Nestle' Food Company, Attorney at Law et al : Nestle' USA, Inc. 20003 Bainbridge Road Solon, Ohio 44139 -2- -3- KENNETH A. ROCCO, J.: This case is before the court on appeal from a judgment of the court of common pleas awarding compensatory damages of $368,750 to appellee Lazlo J. Hampel on his claims for sexual harassment and intentional infliction of emotional distress against appellants Food Ingredients Specialties, Inc., Nestle' Food Co., Nestle' USA, Inc. (collectively, FIS/Nestle ) and Jerry Hord, jointly and severally. FIS/Nestle also appeals an award of punitive damages against it in the amount of $1,280,000.00. Appellants argue the court should have granted them a directed verdict or judgment n.o.v. on all of the claims for which the jury found them liable. (Assignments of Error Nos. I and III). Alternatively, they argue the court should have entered judgment against them for a lesser amount of compensatory damages in accordance with the jury's ori- ginal verdicts and answers to interrogatories. (Assignment of Error No. II). As a third alternative, appellants argue the court should have granted their motion for a new trial. (Assignment of Error No. IV). For the following reasons, this court reverses the trial court's judgment with respect to appellee's claim for sexual harassment, vacates the judgment with respect to appellee's claim for intentional infliction of emotional distress and remands this case for a new trial on that claim. PROCEDURAL HISTORY -4- Appellee filed his complaint on May 3, 1996 asserting claims against appellants for intentional infliction of emotional distress and violation of R.C. Chapter 4112 by creating a sexually hostile work environment and by retaliating against appellee for complain- ing about discrimination. The case proceeded to trial before a jury on March 12, 1997. On March 24, 1997, the jury returned with verdicts and answers to ten interrogatories. The answers to interrogatories reveal the following responses: INTERROGATORY NO. 1: Was Plaintiff subjected to unwelcome sexual harassment during his employment at FIS? YES NO INTERROGATORY NO. 2: Was Mr. Hord's April 17, 1995 conduct based upon sex? YES NO INTERROGATORY NO. 3: Would the complained of conduct unreasonably interfere with the work performance of a reasonable person or create an intimidating, hostile or offensive work environment for that reasonable person? YES NO INTERROGATORY NO. 4: Did FIS take measures that were both timely and reasonable and were such measures appropriate as to punishment of Hord? YES NO And were such measures appropriate to prevent a reoccurrence? YES NO -5- INTERROGATORYNO. 5: Did FIS engage in retali- atory conduct against Plaintiff? YES NO INTERROGATORY NO. 6: Did FIS make Plaintiff's working conditions so intolerable that a rea- sonable person under the circumstances would have felt compelled to resign? YES NO INTERROGATORYNO. 7: Did Defendants intention- ally or recklessly act in an extreme and out- rageous manner? YES NO INTERROGATORY NO. 8: Would a reasonable per- son, normally constituted, be able to cope adequately with the mental distress caused by Defendant's conduct? YES NO 1 INTERROGATORY NO. 9: Was the Defendants' conduct a proximate cause of Plaintiff's mental anguish? YES NO INTERROGATORY NO. 10: Did Defendants act with malice toward Plaintiff? YES NO The trial court reviewed the verdicts and answers to interrog- atories in chambers. The court then reviewed with counsel the answers to interrogatories but not the verdicts. The court con- 1In its answer to interrogatory no. 8, the jury checked both yes and no but scratched out the word no and the mark next to it. -6- cluded on the record that in some respects the interrogatories are inconsistent or tend to be inconsistent with each other and considered it appropriate for the Court to bring the jury back in open court and to give them hypothetical examples of seeming inconsistencies and then send them back. Appellants' counsel requested that the interrogatories be made part of the record. The court then instructed the jury: All right. Ladies and gentlemen, I wish to discuss certain potential inconsistencies in your answers to certain questions and what I proposed to do is to send the eight of you back with a new set of interrogatory papers and I want to make certain remarks for you to consider. With respect to any possible award of punitive damages, I have no request of you in that regard to make any reevaluation. With respect to any possible differential between a compensatory damage verdict against the corporation versus that against the indi- vidual, I want to make certain hypothetical statements. If, for example, there was an automobile accident involving an employee of a corporation, there would be a single injury that would be created by that accident, as a result of which the verdict would be the same. The compensatory damage verdict would be the same against the employee as it would against the employer. There would be a sameness there. Now, on the other hand, if there was some type of retaliation, that could explain the differ- ence in the jury's verdict, if there was such a difference, a monetary difference. In other words, some conduct on the part of the cor- poration which was beyond the conduct of the individual superintendent. I'll review that again. To be consistent, the jury should evaluate its compensatory damage award, if any, against Hord in the context of what the jury has found. If there's a differ- -7- ential between the two, the jury should look to the reason for the differential. Is the reason for the differential retaliation? If there is no differential in conduct, then there should be no differential in verdict. All right. I think I made myself clear on that point. I also want to address interrogatory number four. To refresh your recollection, this question is as follows: Did FIS take measures that were both timely and reasonable and were such measures appropriate as to punishment of Hord? The next question was And were such measures appropriate to prevent reoccurrence? Depending upon your analysis, any answer which you gave to that could be consistent with or inconsistent with the question of retaliation. It could go either way on that point. So what I'm going to suggest that you do is I'm going to give you a fresh set of interrogatories and have you reexamine them in the context of the existing interrogatories. With respect to your compensatory damage verdict forms, if there are any inconsisten- cies, I'm going to ask that you just correct them on the forms that are there and resign them or initial your correction, so that we are satisfied. *** The jury was sent back to deliberate further, then returned with a question. The court described the question on the record and responded as follows: Sir, we wanted to change Hampel versus Hord compensatory damages to zero and leave the others the same. Then the next question is Is interrogatory No. 4 incorrect with other answers? *** *** There has to be a measure of consistency between the verdict against the Defendant Hord as opposed to the verdict against the cor- porate defendant unless in the context of this case you would find that there was retalia- tion. If you find that there was retaliation by the corporation, then this gives the mone- tary the separateness that I am talking about. -8- The jury subsequently returned verdicts for appellee and against all appellants for compensatory damages in the amount of $368,750 on appellee's claims for sexual harassment and intentional infliction of emotional distress. The jury further awarded appel- lee $1,280,000 in punitive damages against FIS/Nestle. Its final answers to interrogatories were the same as the answers submitted earlier except for the answer to interrogatory no. 8, which the jury changed to No. Before the jury was discharged, counsel for appellants formally request[ed] an opportunity to review [with the court] the interrogatoryforms and the verdict forms, especially the original ones where there were inconsistencies, *** Following their review of the interrogatory answers, appellants' counsel asked the court to enter judgment in appellants' favor on appellee's claim for intentional infliction of emotional distress, based upon the jury`s original answer to interrogatory no. 8. The court asked the jury to confirm its answer to interrogatory no. 8, then discharged the jurors. After trial, the court entered an order preserving a verdict form marked VOID, which awarded appellee $1,750 against Hord individually. The order indicated that this verdict form was returned by the jury together with a joint verdict against both Hord and FIS/Nestle for $368,750 in compensatory damages and a punitive damages verdict against FIS/Nestle alone in the amount of $1,280,000.00. The court stated that it returned these forms to -9- the jury [b]ecause the individual verdict against Hord was different from the joint verdict against Hord and FIS/Nestle. Appellants filed post-judgment motions for judgment n.o.v. and for a new trial and to vacate the judgment and accept the original verdicts and answers to interrogatories. The court denied each of these motions. This appeal was timely filed within four days after the court ruled on appellants' motion for judgment n.o.v. EVIDENCE ADDUCED AT TRIAL Appellee was employed by FIS/Nestle from January 1988 until March 1996. According to appellee's contemporaneous notes, on April 17, 1995, while working as a cook, he went into the quality assurance lab and complained about the lack of bins into which he could put completed product, stating that, [O]ne of these days I'm going to blow. His supervisor, appellant Hord, responded by telling appellee, Hey, Laz, you can blow me. Appellee said, What did you say, and Hord said, I said, you can suck my dick. Appellee reported the rest of the exchange as follows: *** I said, I'm frustrated because there are no bins and you tell me to suck your dick? I don't want to think my supervisor is a faggot. Jerry [Hord], But Laz, I only want you to suck my dick. You're the only man in the world that I want to suck my dick. Danny and Ed don't do anything for me. I said, Man, you're sick. And that is when Denny McNeely also said, That is really sick, Jerry. Then Jerry says He continues. He just didn't want to stop. -10- But, Laz, I want you to taste my cum and go, umm, umm, umm, and I want you to ware [sic] my pearl necklace. I said, Man, you're really sick. I'm out of here. Appellee testified that at the end of his shift, he went to Hord's office and told Hord he felt degraded, humiliated and offended. Hord told appellee, basically, If you don't like it, quit. The following day, appellee went to Ingolf Nitsch, the Vice President of Manufacturing, and asked to file a grievance against Hord. Appellee and other witnesses were interviewed by Employee Services Manager Lori Foss and Daniel Mullin, the Manager of Process Control. Later that same day, Hord apologized to appellee, but appellee did not believe the apology was sincere. Foss and Mullin gave Hord a written warning, but Hord continued as appel- lee's supervisor. On April 20, 1995, Hord gave appellee a verbal warning, criticizing him for doing a poor job of cleaning. Appellee tes- tified that Hord was constantly nitpicking at [him], refusing to allow appellee to take shortcuts other employees were permitted to take, and subjecting appellee's work to more careful scrutiny than others. Appellee did not complain about this conduct. After the April 1995 incident, appellee applied for two other positions at FIS/Nestle, pilot plant technician and quality assurance technician. He did not get either position. In January 1996, appellee was offered and accepted a position on the day shift. Later that same day, another employee told -11- appellee that Hord had said he was going to follow appellee to the day shift. The other employee assured appellee that he was not kidding. Appellee immediately asked Mullin whether that was true and was told it was not. Nitsch conducted an investigation and told appellee that there was no proof Hord had told other employees he was going to follow appellee to the day shift. Appellee obtained psychiatric assistance in January 1996. On March 7, 1996, he took a medical leave of absence. In May 1996, he resigned from his employment. At trial, his psychiatrist testified that he suffered from post-traumatic stress disorder, depression and severe emotional distress as a direct result of the April 1995 incident. LAW AND ANALYSIS A. Further Deliberation of the Verdicts and Answers to Interrogatories. Initial resolution of appellants' second assignment of error will permit a more simplified, combined discussion of the first and third assignments. Accordingly, the second assignment of error will be addressed first. The second assignment of error asserts: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT REFUSED TO ACCEPT, AND ENTER THE APPROPRIATE JUDGMENT ON, THE JURY'S ORIGI- NAL, CONSISTENT INTERROGATORY ANSWERS AND VERDICTS. Appellants argue the jury's first answers to interrogatories and verdicts were consistent with one another and the court, therefore, had a mandatory duty under Civ.R. 49(B) to enter the -12- appropriate judgment. They argue that neither Civ.R. 48 nor Civ.R. 49 allowed the court to return the jury for further delib- erations. The record does not permit the court to determine how the jury assessed liability in its initial verdicts. Although the trial court entered an order describing the amounts awarded in the initial verdicts, it did not describe the cause(s) of action for which the verdicts were entered. Appellants ask the court to assume the jury returned a verdict against them on appellee's claim for sexual harassment and returned verdicts in their favor on appellee's claims for retaliation and intentional infliction of emotional distress. Appellee suggests the jury found appellants liable for both sexual harassment and intentional infliction of emotional distress. The fact is, this court can only guess at the basis for the jury's verdicts. Guesswork is not an appropriate basis for appellate review. Appellants have a duty to demonstrate error on appeal and must provide a record which exemplifies the claimed error. Absent a record demonstrating the claimed error, the court must presume the validity of the proceedings below. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. Appellants preserved the jury's answers to interrogatories in the appellate record but did not ask the court to make the verdict forms part of the record before they were returned to the jury. No record of the substance of those verdicts was created. Accordingly, the second assignment of error must be overruled. -13- B. Denial of Appellants' Motions for Directed Verdict and Judgment N.O.V. Appellants' first and third assignments of error assert: I. THE TRIAL COURT ERRONEOUSLY DENIED DEFEN- DANTS' MOTIONS FOR DIRECTED VERDICT AND J.N.O.V. ON PLAINTIFF'S CLAIM FOR SEXUAL HARASSMENT-HOSTILE WORK ENVIRONMENT. III. THE TRIAL COURT ERRONEOUSLY DENIED DEFEN- DANTS' MOTIONS FOR DIRECTED VERDICT AND J.N.O.V. ON PLAINTIFF'S CLAIM FOR INTEN- TIONAL INFLICTION OF EMOTIONAL DISTRESS. Appellants contend the trial court should have granted them a directed verdict or judgment notwithstanding the verdict because the evidence produced at trial was insufficient as a matter of law to support claims against any of the appellants for sexual harassment and intentional infliction of emotional distress or to support a punitive damages award against FIS/Nestle. Pursuant to Civ.R. 50, the standards for granting a directed verdict and a judgment notwithstanding the verdict are the same: When *** the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. The court will consider each of appellants' arguments in turn. 1. Sexual Harassment. Appellee did not claim that any tangible, negative employment decision was the result of sexual discrimination against him. Rather, he claimed he was sexually harassed by the creation of a -14- hostile work environment. The parties apparently agree that sexual harassment among persons of the same gender is actionable under R.C. Chapter 4112, as it is under Title VII of the Civil Rights Act of 1964. See Oncale v. Sundowner Offshore Services, Inc. (1998), U.S. , 118 S.Ct. 998. To prove a claim for hostile work environment sexual harass- ment, the employee must show: *** (1) the employee was a member of the protected class; (2) the employee was sub- jected to unwelcome harassment; (3) the ha- rassment complained of was based upon sex; (4) the harassment had the purpose or effect of unreasonably interfering with the employee's work performance or creating an intimidating, hostile, or offensive work environment; and (5) the existence of respondeat superior liability. Delaney v. Skyline Lodge, Inc. (1994), 95 Ohio App.3d 264, 270. Federal case law interpreting Title VII of the Civil Rights Act of 1964 has generally been applied by Ohio courts construing R.C. Chapter 4112. Id. The United States Supreme Court has recently expounded on the standard of liability for hostile work environment sexual harassment: Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discriminat[ion] *** because of *** sex. We have never held that work- place harassment, *** is automatically dis- crimination because of sex merely because the words used have sexual content or connota- tions. The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. -15- Oncale, 118 S.Ct. at 1002 (citing Harris v. Forklift Systems, Inc. [1993], 510 U.S. 17, 25). The prohibition of harassment on the basis of sex *** forbids only behavior so objectively offensive as to alter the conditions of the victim's employment. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive -is beyond Title VII's purview. Id., at 1003 (citing Harris, 510 U.S. at 21). Appellants contend that the single episode of sexually explicit verbal abuse was insufficient as a matter of law to create a hostile work environment. Hord's outburst was admittedly severe but brief. He never made similar statements to appellee before or after the incident on April 17, 1995. There was no gender-based component to any of the later events. Under these circumstances, appellants argue, any gender-based discrimination was not suffi- ciently severe or pervasive to create a hostile work environment. The evidence in this case points solely to the conclusion that Hord's outburst against appellee was personal and not gender-based. The taunting undeniably had a sexual component; however, Hord's statements may have been provoked albeit unintentionally by appellee's use of the word blow in his own complaints about the lack of bins and prodded by appellee's suggestion that Hord was a faggot. There is no evidence the comments were made to appellee because of his gender; indeed, Hord's statement that appellee was the only man in the world he wanted to perform certain acts implied the contrary. -16- Unfortunately, expressions such as those used by Hord in this case are commonplace in certain circles, and more often than not, when these expressions are used (particularly when uttered by men speaking to other men), their use has no connection whatsoever with the sexual acts to which they make reference ***. Ordinarily, they are simply expressions of animosity or juvenile provocation ***. Johnson v. Hondo, Inc. (7th Cir. 1997), 125 F.3d 408, 412. The use of vulgar, sexually explicit language -- so called trash talking -- is common in many all-male environments and is not necessarily indicative of a working environment hostile to men. The real social impact of workplace behavior often depends on a constellation of surround- ing circumstances, expectations, and relation- ships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appro- priate sensitivity to social context, will enable courts and juries to distinguish be- tween simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. Oncale, 118 S.Ct. at 1003. The laws prohibiting sexual discrimination should not be transformed into a general civility code; courts must pay careful attention to the statutory requirements to ensure that the law is used only to prohibit discrimination because of *** sex. Oncale, 118 S.Ct. at 1002. The justice system cannot be the arbiter of feelings hurt and egos bruised as a result of mere insensitive and tasteless statements made by an individual in a position of authority. Madera v. Satellite Shelters, Inc. (Aug. 12, 1998), Cuyahoga App. No. 73172, unreported, at 18. -17- Appellee asserts that Hord's subsequent nitpicking, dis- cipline and harassment should also be considered in determining whether he were subjected to a hostile work environment. However, appellee concedes that none of Hord's later conduct was gender-based or sexual in nature. While the predicate acts sup- porting a hostile work environment claim need not be explicitly sexual in nature, appellee must show that the conduct was sexually motivated. Gillming v. Simmons Indus. (8th Cir. 1996), 91 F.3d 1168, 1171-72. There is no evidence of a sexual motivation for Hord's alleged harassment of appellee after the April 17, 1995 incident. The existence of one sexually-charged incident will not support the assumption that all subsequent negative events were gender-based. The court finds as a matter of law that no reasonable jury could have found appellants liable on appellee's sexual harassment claim. Accordingly, the trial court erred by denying appellants' motion for a directed verdict and judgment n.o.v., and its judgment must be reversed.2 2. Intentional Infliction of Emotional Distress. To prove a claim for intentional infliction of emotional distress, a plaintiff must offer evidence that (1) the actor intended to cause emotional distress or knew or should have known the actions taken would result in serious emotional distress to the 2Our holding makes it unnecessary for the court to address the agency principles which govern employer liability for sexual harassment. Cf. Burlington Indus., Inc. v. Ellerth (1998), 118 S.Ct. 2257; Faragher v. Boca Raton (1998), 118 S.Ct. 2275. -18- plaintiff, (2) the conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such as to be considered utterly intolerable in a civilized community, (3) the conduct proximately caused plaintiff's injuries, and (4) the mental anguish suffered by the plaintiff was serious and of a nature that no reasonable person could be expected to endure it. Pyle v. Pyle (1983), 11 Ohio App.3d 31. There was sufficient evidence from which a reasonable jury could conclude appellants intentionally caused appellee emotional distress. A reasonable jury could have found that Hord's conduct during the April 17, 1995 incident, combined with the evidence that he later subjected appellee to a higher standard than other employees and tormented him by threatening to follow him to another shift, was extreme and outrageous (though not gender-based). There was sufficient evidence from which a jury could conclude Hord knew or should have known his conduct caused appellee distress. Finally, there was testimony that appellee suffered from severe emotional distress, caused solely by his mistreatment at work. There was also sufficient evidence from which a reasonable jury could find FIS/Nestle liable for Hord's conduct under the doctrine of respondeat superior. A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Restatement of the Law 2d, Agency (1958) 481, section 219(1). Whether an employee is acting within the scope of his employment is generally a question of fact for the jury. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 330. -19- If a tort is intentional, the behavior giving rise to the tort must be `calculated to facilitate or promote the business for which the servant is employed.' Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329. Generally, an employee's intentional attack on another employee in order to vent his own spleen is a departure from his employment for which the employer is not responsible. Czubaj v. E.B.P., Inc. (Oct. 12, 1995), Cuyahoga App. No. 65517, unreported, at 6. However, [t]he willful and malicious character of an employee's act does not always, as a matter of law, remove the act from the scope of employment. Osborne, 63 Ohio St.3d at 330. Moreover, an employer may ratify an employee's conduct. See Delaney, 95 Ohio App.3d at 274. A reasonable jury could have found that FIS/Nestle ratified Hord's conduct during the April 1995 incident by failing to dis- cipline him adequately, and that Hord had actual authority to discipline appellee and used that authority to harass him. See Davis v. Black (1991), 70 Ohio App.3d 359, 365-67. Therefore, the trial court did not err by denying appellants' motions for directed verdict and judgment n.o.v. on appellee's claim for intentional infliction of emotional distress. 3. Punitive Damages. -20- FIS/Nestle asserts the evidence was insufficient as a matter of law to support the punitive damages award.3 R.C. 2315.21(C)(1) permits an award of punitive damages in a tort action only if: *** [t]he actions or omissions of that defen- dant demonstrate malice, aggravated or egre- gious fraud, or insult, or that defendant as principal or master authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate. As noted above, a reasonable jury could find FIS/Nestle ratified Hord's April 1995 outburst and authorized Hord to dis- cipline appellee. Therefore, the trial court did not err by denying appellants' motion for a directed verdict or judgment n.o.v. on appellee's punitive damages claim. The jury returned a combined verdict, awarding compensatory damages on both the sexual harassment and intentional infliction of emotional distress claims. The punitive damages verdict did not explain whether the punitive damages award was based on the sexual harassment claim, the emotional distress claim, or both. Accord- ingly, the court cannot tell how much the jury would have awarded appellee solely for intentional infliction of emotional distress. Having determined that the trial court should have entered a 3FIS/Nestle argues that reversal of the judgment on the sexual harassment claim requires reversal of the punitive damages award because punitive damages were awarded solely for appellee's sexual harassment claim and not for the claim of intentional infliction of emotional distress. Neither the verdicts nor the answers to interrogatories disclose the basis for the punitive damages award; therefore, the court finds no basis for concluding that punitive damages were awarded solely for sexual harassment. The court also notes the verdict form permitted a punitive damages award only against FIS/Nestle, not against Hord individually or jointly and severally with FIS/Nestle. -21- directed verdict on appellee's claim for sexual harassment, the court must reverse the judgment on that claim and must vacate the judgment and remand this matter for a new trial on appellee's claim for intentional infliction of emotional distress. C. Motion for New Trial. Appellant's fourth assignment of error asserts: THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANTS' MOTION FOR NEW TRIAL. The court's disposition of appellant's first and third assignments of error makes it unnecessary for the court to address the alternative argument asserted in the fourth assignment of error. App.R. 12(A)(1)(c). Judgment reversed in part, vacated in part, and remanded for new trial not inconsistent with this opinion. -22- This cause is reversed in part, vacated in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee costs herein. It is ordered that a special mandate be sent to said 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. JAMES D. SWEENEY, J. and MICHAEL J. CORRIGAN, J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .