Law Office of Josh Brown, L.L.C. v. Ohio Secy. of State

[Cite as Law Office of Josh Brown, L.L.C. v. Ohio Secy. of State, 2025-Ohio-2130.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The Law Office of Josh Brown, LLC, :

Requester-Appellee, :

No. 24AP-170

v. : (Ct. of Cl. No. 2023-00510PQ)

Ohio Secretary of State, : (REGULAR CALENDAR)

Respondent-Appellant. :

:

D E C I S I O N

Rendered on June 17, 2025

On brief: Joshua J. Brown for appellee. Argued: Joshua J.

Brown.

On brief: Dave Yost, Attorney General, Heather L.

Buchanan, Michael A. Walton, and Byers B. Emmerling for

appellant. Argued: Michael A. Walton.

APPEAL from the Court of Claims of Ohio

MENTEL, J.

{¶ 1} Respondent-appellant, Ohio Secretary of State, appeals from the decision of

the Court of Claims of Ohio ordering the secretary’s office to produce emails in response to

the public records request of requester-appellee, the Law Office of Josh Brown, LLC.

Finding no error in the judgment of the Court of Claims, we affirm.

I. Factual and Procedural Background

{¶ 2} On June 29, 2023, attorney Josh Brown sent the following request to Julia

Lawrence, the Assistant Chief Legal Counsel at the Office of the Ohio Secretary of State:

No. 24AP-170 2

I would like to request copies of any email that meets the

following criteria:

1. Includes the word “Blystone”; and

2. Sent or received between May 1, 2022 to December 31, 2022

by Secretary Frank LaRose;

3. Sent or received May 1, 2022 to December 31, 2022 by

Secretary of State employee Brian Katz;

4. Sent or received May 1, 2022 to December 31, 2022 by

Secretary of State Employee Jason Long;

5. Sent or received May 1, 2022 to December 31, 2022 by any

other Secretary of State employee email.

This should be easy to attain by simply putting the word

“Blystone” into the search bar for the email addresses of these

individuals.

Second, I would like the office to confirm whether any of the

following individuals have text message communications, on

personal or office phones, including the word “Blystone” from

May 1, 2022 to December 31, 2022: Secretary Frank LaRose,

Secretary of State employee Brian Katz, and Secretary of State

employee Jason Long.

This should be easy to attain by simply asking them to put the

word “Blystone” into the search mechanism on their cell

phones.

If these preceding requests are “overly broad” or unproducible

for any reason, please send give me a time and place, and we

will be glad to inspect the individual’s email accounts

personally.

(Ex. A, Aug. 1, 2023 Compl.)

{¶ 3} Ms. Lawrence responded to Mr. Brown’s requests on behalf of the secretary’s

office on July 24, 2023. Citing State ex rel. Zidonis v. Columbus State Community College,

2012-Ohio-4228, her response denied the request for the emails of the named employees,

stating that it was “overly broad” because “it fail[ed] to identify both the sender and the

recipient of the communications” sought by Mr. Brown. (Ex. B, Compl.) The response also

No. 24AP-170 3

considered Mr. Brown’s request overly broad because it did “not list the internal or external

correspondents with whom the identified Secretary of State employees may have been

corresponding,” asserting therefore that “voluminous research would need to be conducted

in order to identify any potential correspondents” to comply. Id. Mr. Brown’s request for

emails to or from “any other Secretary of State employee email” was also denied as overly

broad, citing Kanter v. Cleveland Hts., 2018-Ohio-4592 (Ct. of Cl.). Id. Finally, Ms.

Lawrence rejected the request to produce text message of the secretary’s employees, noting

that it was “a request for information, which is not a proper public records request under

Ohio law.” Id.

{¶ 4} Mr. Brown filed a complaint in the Court of Claims on August 1, 2023,

invoking the procedure under R.C. 2743.75 that provides a statutory alternative to a

mandamus action for a party alleging a denial of access to public records under R.C. 149.43.

Pursuant to R.C. 2743.75(D)(2), the matter was referred to a special master. After an

unsuccessful attempt at mediation, the special master issued a report recommending that

the court order the secretary’s office to produce records responsive to Mr. Brown’s first

request for the emails but deny the request for the text messages. The special master

concluded that criteria stated in the email request were sufficiently specific to resist being

categorized as overly broad, and the assertion that the email server would have difficulty

with the request did “not go to the breadth of this request.” (Nov. 29, 2023 Report &

Recommendation at 4.) The special master reasoned that although R.C. 149.43(B)(2)

“authorizes offices to deny unclear requests” as being overly broad, “it nowhere authorizes

an office to reject an otherwise clear request because of the limitations of the office’s records

management systems.” Id. However, the special master considered Mr. Brown’s request

to “confirm whether any of the [named] individuals have text message communications”

containing the “Blystone” keyword to be “not enforceable because it sought information,

not records.” Id. at 6.

{¶ 5} The secretary’s office filed objections to the special master’s report on

December 11, 2023, arguing that Mr. Brown had not met his burden to show a violation of

public records law by clear and convincing evidence and disagreeing with the special

master’s assessment of the request as not overbroad. The Court of Claims found that

although special master did not “explicit[ly]” find that the burden of proof had been meet,

No. 24AP-170 4

the recommendation to order the emails showed that he “implicitly found that Requester

satisfied his burden of proof.” (Feb. 6, 2024 Decision & Entry at 5.) In addition, the court

found that the request “identified with reasonable clarity” the records sought, and agreed

with the special master’s analysis that the purported difficulty of retrieving the emails did

not make them overly broad. Id. at 5-7. Accordingly, the Court of Claims overruled the

objections, adopted the report and recommendations, and ordered the secretary’s office to

produce the emails described in the first request.

{¶ 6} The secretary’s office has appealed the Court of Claim’s decision and asserts

the following assignments of error:

[I.] The lower court erred when it ignored Appellee’s burden to

prove a public records violation by clear and convincing

evidence.

[II.] The lower court erred when it found that Appellee’s public

records request was not overly broad.

II. Standard of Review

{¶ 7} “Whether a particular record is by statute exempt from disclosure as a public

record fundamentally presents an issue of law, although the application of the statutory

exemption will necessarily depend on its factual application to the record in question.”

Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 37. Thus, in an

appeal of a public records proceeding brought under R.C. 2743.75, the appellate court “will

independently review the legal question de novo but will defer to the trial court’s underlying

factual findings, reviewing them only for clear error.” Id.

III. Analysis

{¶ 8} The Public Records Act, R.C. 149.43, safeguards “the right of access to public

records” in Ohio. Id. at ¶ 10. The act “reflects the state’s policy that ‘open government

serves the public interest and our democratic system.’ ” State ex rel. Morgan v. New

Lexington, 2006-Ohio-6365, ¶ 28, quoting State ex rel. Dann v. Taft, 2006-Ohio-1825,

¶ 20. “To facilitate broader access to public records, a public office or the person

responsible for public records shall organize and maintain public records in a manner that

they can be made available for inspection or copying” upon request. R.C. 149.43(B)(2).

Under R.C. 149.43(B)(1), “any person” may make such a request for public records, and “all

No. 24AP-170 5

public records responsive to the request shall be promptly prepared and made available”

for inspection, or copies must be provided “within a reasonable period of time” to the

requester. A public office may deny “an ambiguous or overly broad request,” or one that

makes it impossible to “reasonably identify what public records are being requested,” but

must “provide the requester with an opportunity to revise the request by informing the

requester of the manner in which records are maintained by the public office” before a final

denial. Id. “If a request is ultimately denied, in part or in whole, the public office or the

person responsible for the requested public record shall provide the requester with an

explanation, including legal authority, setting forth why the request was denied.” R.C.

149.43(B)(3). The Supreme Court of Ohio requires courts to “construe R.C. 149.43 liberally

in favor of broad access, with any doubt resolved in favor of disclosure of public records.”

Morgan at ¶ 28, citing Dann at ¶ 20.

{¶ 9} Before the General Assembly enacted R.C. 2743.75 in 2016, a requester

denied access to public records could only seek redress in the courts by filing a mandamus

action under R.C. 149.43(C). However, R.C. 2743.75 “created an alternative means to

resolve public-records disputes” in the Court of Claims. Welsh-Huggins at ¶ 11. The statute

provides “an expeditious and economical procedure that attempts to resolve disputes

alleging a denial of access to public records” apart from mandamus. R.C. 2743.75(A). To

accomplish this goal, the statute lays out a streamlined litigation procedure that requires

the requester file a form created by the Court of Claims as a complaint, with records of the

request and any response attached, the immediate assignment of a special master who

must, barring special circumstances, refer the matter to mediation and prepare a report

and recommendations if mediation is unsuccessful. R.C. 2743.75(D)-(E). No motion

practice is permitted unless permitted by the special master. R.C. 2743.75(E)(2). Nor is

discovery permitted prior to the special master’s report without permission, only affidavits

and attached documentation. R.C. 2743.75(E)(3). Each party has seven days to object to

the special master’s report, another seven days to respond, and the Court of Claims must

rule on the objections within seven days. R.C. 2743.75(F)(2).

{¶ 10} A requester denied access to public records may invoke the statutory

procedure under R.C. 2743.75 in the Court of Claims or file a mandamus action. R.C.

149.43(C)(1). However, the requester may seek “only one” but “not both” remedies. Id.

No. 24AP-170 6

Although the R.C. 2743.75 option “may be less formalistic than a mandamus proceeding,”

the remedies provided by either are “functionally the same,” and therefore the standards

applicable to both should be “consistent” with one another. Welsh-Huggins, 2020-Ohio-

5371, at ¶ 32. Accordingly, “in a R.C. 2743.75 proceeding, the requester carries the burden

of production to plead and prove facts showing that it ‘sought an identifiable public record

pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make

the record available.’ ” Doe v. Ohio State Univ., 2024-Ohio-5891, ¶ 18 (10th Dist.), quoting

Welsh-Huggins at ¶ 33. “Additionally, the burden of persuasion is on the requester to

establish its entitlement to relief by clear and convincing evidence.” Id., citing Viola v.

Cuyahoga Cty. Prosecutor’s Office, 2021-Ohio-4210, ¶ 16 (8th Dist.).

A. First Assignment of Error

{¶ 11} In the first assignment of error, the secretary’s office argues that the Court of

Claims “ignored” Mr. Brown’s burden to prove that he was entitled to relief under R.C.

2743.75 by clear and convincing evidence. (Appellant’s Brief at 8.) The special master did

“not mention this burden at all” and the court “failed to explain” how Mr. Brown met the

burden, according to the secretary’s office. Id. at 10. Mr. Brown failed to “put in the record”

any “evidence that shows or explains” why the criteria of his public records request was

appropriate, the secretary’s office argues, asserting that “actual evidence is required to meet

the clear and convincing standard.” Id. at 11. In response, Mr. Brown argues that his “only

burden [was] to show” that the records he sought existed and were maintained by the

secretary’s office, who did not meet its “burden to establish the applicability of an

exception” to its duty to provide the records. (Brief of Appellee at 4-5.)

{¶ 12} In Welsh-Huggins, the Supreme Court of Ohio explained “the respective

burden or burdens of proof that the parties bear in proceedings to enforce the Public

Records Act” brought under R.C. 2743.75. Welsh-Huggins at ¶ 19. In a preliminary

passage, the court noted:

We begin by recalling that the “burden of proof” is a composite

burden that “encompasses two different aspects of proof: the

burden of going forward with evidence (or burden of

production) and the burden of persuasion.” Chari v. Vore, 91

Ohio St.3d 323, 326, 2001-Ohio 49, 744 N.E.2d 763 (2001). See

also Xenia v. Wallace, 37 Ohio St.3d 216, 219, 524 N.E.2d 889

No. 24AP-170 7

(1988); State v. Robinson, 47 Ohio St.2d 103, 107, 351 N.E.2d

88 (1976).

The “burden of production” in a civil case requires that the

plaintiff produce sufficient evidence to support the case and

that the defendant produce sufficient evidence of any

affirmative defenses. Id. at 107. The party having the burden on

any given issue will lose on that issue as a matter of law if

sufficient evidence is not produced. Id.

By contrast, the “burden of persuasion” “refers to the risk * * *

borne by a party if the jury finds that the evidence is in

equilibrium.” Id. “In a civil case, the party with the burden of

persuasion is to persuade the trier of fact by a preponderance

of the evidence, or upon some issues, by clear and convincing

evidence.” Id. The party with this burden will lose if he or she

fails to persuade the trier of fact that the alleged fact is true by

such quantum of evidence as the law demands. Id. If the trier

of fact finds itself in doubt, “it must decide the issue against the

party having the burden of persuasion.” Id.

Welsh-Huggins at ¶ 20-22.

{¶ 13} Applying these principles in an R.C. 2743.75 public records action, the court

stated that “the complainant’s ‘burden of production’ is to plead and prove facts showing

that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and

that the public office or records custodian did not make the record available.” Id. at ¶ 33.

In Welsh-Huggins, there was “no dispute” that the complainant had satisfied this burden

of production. Id. The complainant was a reporter who requested a security camera

recording of a common pleas court judge being shot as he entered the courthouse, and the

public office, a county prosecutor, had denied the request. Id. at ¶ 1. And, “at all times”

during the proceeding, the burden of persuasion was on the complainant “to prove his right

to relief under R.C. 2743.75 by the requisite quantum of evidence,” which he did not dispute

was the clear and convincing standard. Id. at ¶ 34.

{¶ 14} However, it is not only the complainant who carries a burden of proof:

If the public office or person responsible for public records

refuses to release the requested record on the basis of a

statutory exemption, its “burden of production” in the R.C.

2743.75 proceeding is to plead and prove facts establishing that

the requested record falls squarely within the

exemption. See State ex rel. Cincinnati Enquirer v. Jones-

No. 24AP-170 8

Kelly, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206,

paragraph two of the syllabus. And if the exemption upon

which the public office relies is not obviously apparent and

manifest just from the content of the record itself, factual

evidence to establish the application of that exemption is

necessary. See State ex rel. Besser, 89 Ohio St.3d at 402, 732

N.E.2d 373. Unsupported conclusory statements in an affidavit

are insufficient.

Id. at ¶ 35.

{¶ 15} In Welsh-Huggins, the prosecutor invoked the exception to public records

disclosure that applies to “[a]ny record that contains information directly used for

protecting or maintaining the security of a public office against attack, interference, or

sabotage” under R.C. 149.433(B)(1). Id. at ¶ 42. However, the prosecutor’s affidavits

“asserted in conclusory fashion” that the video was used for such purposes, but they “did

not explain how the video was used for protecting or maintaining the security of a public

office against attack, interference, or sabotage.” (Emphasis in original.) Id. at ¶ 55. This

was insufficient to satisfy the burden of proof for invoking an exception to disclosure

because “in a public-records-access proceeding brought pursuant to R.C. 2743.75, a public

office or records custodian asserting a statutory exemption must produce competent,

admissible evidence to support the asserted exemption unless the application of the

exemption is clearly obvious from the record itself.” Id. at ¶ 77.

{¶ 16} Here, Mr. Brown satisfied his burden of production “to plead and prove facts

showing that the requester sought an identifiable public record pursuant to R.C.

149.43(B)(1) and that the public office or records custodian did not make the record

available.” Id. at ¶ 33. He did so by alleging that the public records request was submitted

and “refused without proper basis for allegedly being ‘overly broad,’ ” with reference to

attachments containing his request and the response from the secretary’s office. (Compl.)

{¶ 17} The secretary’s office denied the request because it was purportedly “overly

broad” under R.C. 149.43(B)(2), a statutory exemption to disclosure. This denial triggered

“its ‘burden of production’ . . . to plead and prove facts establishing that the requested

record falls squarely within the exemption.” Welsh-Huggins at ¶ 35, citing State ex rel.

Cincinnati Enquirer, 2008-Ohio-1770, paragraph two of the syllabus. See also id. at ¶ 54

(stating that “the assertion of a statutory exemption activates the corresponding burden of

No. 24AP-170 9

production to prove facts establishing the clear applicability of the exemption”). In its

briefing, the secretary’s office makes no mention of its own burden or explains how the

evidence it produced, the affidavit of Ms. Lawrence, established that the statutory

exemption applied. After verifying attachments containing the parties’ pre-litigation

correspondence, her affidavit states:

The Secretary of State’s Office denied part one of Mr. Brown’s

request as overly broad. I explained that the Office was unable

to respond because the request failed to identify both senders

and recipients of the requested emails. Based on the way the

Office organizes and maintains its email records, the Office is

unable to efficiently search employee emails, even with a time

parameter and search term, without an identified sender or

recipient on each end of the emails. The Office must have both

sender and recipient information to respond to a request for

email records. The Office’s records retrieval software has

stalled when the Office attempted to run such broad searches

in the past.

(Ex. A, Nov. 6, 2023 Resp. Brief, hereinafter, “Lawrence Aff.”)

{¶ 18} We agree with the special master’s observation that the statutory exemption

to comply with an “overly broad” request under R.C. 149.43(B)(2) “nowhere authorizes an

office to reject an otherwise clear request because of the limitations of the office’s records

management systems.” (Report & Recommendation at 4.) Rather than fulfill its burden of

production to produce competent, credible evidence showing that the exemption applies,

the affidavit instead demonstrates noncompliance with the statute’s mandate that

secretary’s office “shall organize and maintain public records in a manner that they can be

made available for inspection or copying . . .” R.C. 149.43(B)(2); Welsh-Huggins at ¶ 77.

“No pleading of too much expense, or too much time involved, or too much interference

with normal duties, can be used by the respondent to evade the public’s right to inspect and

obtain a copy of public records within a reasonable time.” State ex rel. Beacon Journal

Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289 (1976). See also State ex rel. Toledo Blade

Co. v. Seneca Cty. Bd. of Commrs., 2008-Ohio-6253, ¶ 36 (stating that “insofar as the e-

mails still exist on the commissioners’ computers, they remain public records, and the

board has a duty to organize and maintain them in a manner in which they can be made

available for inspection and copying”).

No. 24AP-170 10

{¶ 19} The secretary’s office argues that Mr. Brown failed to present clear and

convincing evidence that his request was “sufficiently clear,” such as “evidence that shows

or explains why eight months is a ‘reasonable’ date range” or “why the search term

‘Blystone’ is a ‘topic’ or ‘subject matter.’ ” (Appellant’s Brief at 11.) This echoes the

prosecutor’s argument in Welsh-Huggins that the requester must “first” satisfy the burden

of proof to show “that he is entitled to that which he requests” with clear and convincing

evidence. Welsh-Huggins at ¶ 54. This “argument wrongly suggests that [the] responding

burden of production does not arise unless and until the requester has established its

burden of persuasion.” Id. The court further stated:

Contrary to the prosecutor’s contention, the assertion of a

statutory exemption activates the corresponding burden of

production to prove facts establishing the clear applicability of

the exemption. The requester’s burden of persuasion continues

throughout the course of the proceeding but does not in any

way relieve the public office or records custodian from having

to prove the factual basis of the exemption on which it relies.

The requester does not have to win its case before the public

office has to make its case.

Id.

{¶ 20} The secretary’s office argues that Mr. Brown’s claim should fail because

“actual evidence is required to meet the clear and convincing standard,” citing Anthony v.

Columbus City Schools, 2021-Ohio-3242, ¶ 2 (Ct. of Cl.). (Appellant’s Brief at 11.) In

Anthony, the requester sought a school district’s records “of the number of teachers absent

in each building each month and the number that had substitute coverage for the absences”

during a three-year period. The school district submitted an affidavit stating it could not

“produce a report in the manner requested” because the company that maintained its

database “would have to create datasets” that in turn would “need to be manually

manipulated to create a report” with the requested data, stating that “the requested

monthly statistics are technically not a record the database was ‘already programmed to

produce.’ ” Anthony at ¶ 2, 11. The requester produced “no evidence or argument” to

contradict the school district’s “representations regarding availability of the requested

dataset,” and instead made “only a bare assertion that the requested output is available.”

Id. at ¶ 12. This was insufficient “to prove by clear and convincing evidence that the

No. 24AP-170 11

requested output can be produced,” so the school district had no duty to produce it. Id. at

¶ 13.

{¶ 21} Anthony involved the application of the “database rule,” which applies when

a requester does not seek existing records, but instead requests a compilation or report of

data maintained in the database of a public office. Id. at ¶ 8. In that situation, “if an

electronic database used by a public office has existing programming that can produce the

output sought in a public records request, then that output already ‘exists’ for the purposes

of the Public Records Act.” Id. Here, in contrast, there is no dispute that the records in

question, emails on the server at the secretary’s office, actually exist. Furthermore, the

special master in Anthony found that the requester had not satisfied her burden of proof

after evaluating the school district’s evidence, which included naming its data vendor,

describing the datasets, and giving precise estimations of the number of reports that would

have to be manually prepared by spreadsheet. Id. at ¶ 11.

{¶ 22} We cannot conclude that the affidavit submitted by Ms. Lawrence satisfied

the burden of production that the secretary’s office had to provide competent, credible

evidence that the statutory exemption applied. Her affidavit makes a series of claims about

the limitations of the search capabilities of the email software at the secretary’s office, but

does not even name the software used so that such claims may be evaluated or responded

to. Furthermore, the assertions are somewhat contradictory. Ms. Lawrence asserts that

“the Office is unable to efficiently search employee emails . . . without an identified sender

or recipient on each end of the emails,” and then, in the next sentence, asserts that “[t]he

Office must have both sender and recipient information to respond to a request for email

records.” (Emphasis added.) (Lawrence Aff.) Either the secretary’s office email system

must have the sender and recipient, or it can do the search without them, albeit not

“efficiently.” Both cannot be true. In addition, by asserting that its “records retrieval

software has stalled when the Office attempted to run such broad searches in the past,” it is

apparent that no attempt was made to procure the emails at all. Id. It is impossible to

compare Mr. Brown’s request to these past searches because no details about them are

provided.

{¶ 23} As stated, the secretary’s office had the burden of production when claiming

that it was not required to produce the emails. “The party having the burden on any given

No. 24AP-170 12

issue will lose on that issue as a matter of law if sufficient evidence is not produced.” Welsh-

Huggins at ¶ 21, citing State v. Robinson, 47 Ohio St.2d at 107. Because the secretary’s

office failed to satisfy its burden to produce evidence in support of the asserted statutory

exemption under R.C. 149.43(B)(2), it lost on that issue as a matter of law. Mr. Brown,

having satisfied his burden of production, was not required to then produce more evidence

to demonstrate that he was entitled to the records. Having shown that he requested existing

records, R.C. 149.43(B)(1) required the secretary’s office to provide them. The first

assignment of error is overruled.

B. Second Assignment of Error

{¶ 24} In the second assignment of error, the secretary’s office argues that the Court

of Claims erred by not concluding that Mr. Brown’s request was overly broad. Much of

what the secretary’s office asserts in support of this assignment of error is duplicative of its

arguments in support of the first assignment of error, such as its assertion that Mr. Brown

failed to provide evidentiary support for the reasonableness of the criteria of his request or

properly rebut the affidavit of Ms. Lawrence. (See Appellant’s Brief at 15-16, 19-23.) These

arguments will not be addressed, given our resolution of the first assignment of error.

{¶ 25} To the extent that the secretary’s office argues that the parameters of Mr.

Brown’s request were insufficiently precise, we cannot conclude that a request for emails

during one eight-month period containing a single keyword (“Blystone”) of one public

office qualifies as overly broad. Mr. Brown “limited each request temporally, by subject

matter, and in all but one instance, by the specific employees concerned.” State ex rel.

Kesterson v. Kent State Univ., 2018-Ohio-5110, ¶ 23-25 (rejecting university’s assertion

that requests for “ ‘all records of communications’ between various individuals” as overly

broad). Mr. Brown did not request “broad categories of records,” only emails, and his

request did not encompass “a lengthy period of time” relative to other requests considered

overly broad. See, e.g., State ex rel. Zidonis v. Columbus State Community College, 2012-

Ohio-4228, ¶ 21 (holding that request for “complaint files and litigation files” over “at least

six years and potentially much longer” was overbroad). As formulated, his request had the

“reasonably clarity” required to resist categorization as overly broad. Id. Accordingly, the

second assignment of error is overruled.

No. 24AP-170 13

IV. Conclusion

{¶ 26} Having overruled the two assignments of error asserted by the secretary’s

office, we affirm the judgment of the Court of Claims of Ohio adopting the report and

recommendation of the special master.

Judgment affirmed.

JAMISON, P.J. and BEATTY BLUNT, J., concur.

_________________