Alexander v. Davis

[Cite as Alexander v. Davis, 2022-Ohio-2345.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

TERESA ALEXANDER & DANIEL : APPEAL NO. C-210461

DETERS, Coadministrators of the TRIAL NO. A-1904890

Estate of Jordan Alexander,

Plaintiffs-Appellants, :

O P I N I O N.

vs. :

TIFFANY DAVIS, :

and :

DAYTON CORRUGATED PACKAGING :

CORP.,

Defendants, :

and :

Q5 TALENT, L.L.C., :

and :

HIRE SOLUTION, L.L.C., :

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 6, 2022

OHIO FIRST DISTRICT COURT OF APPEALS

Mezibov Butler, Susan J. Butler and Brian J. Butler, for Plaintiffs-Appellants,

Reminger Co., L.P.A., Timothy B. Spille, Brian D. Sullivan and Brianna Marie

Prislipsky, for Defendants-Appellees.

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CROUSE, Judge.

{¶1} In October 2017, defendants-appellees Q5 Talent, L.L.C., and Hire

Solution, L.L.C., (collectively “Q5”) entered into an agreement with defendant Dayton

Corrugated Packaging Corporation (“DCPC”) to provide temporary workers to DCPC.

Per the agreement, Q5 would pay the worker and invoice DCPC for the cost. The

worker was to be considered an “independent contractor” to DCPC. Tiffany Davis was

hired by Q5 and placed in a pool of applicants for open commercial trucking positions

with DCPC. DCPC selected Davis for a position.

{¶2} On August 14, 2018, Davis was assigned by DCPC to drive a route in

Cincinnati, Ohio. She was driving a tractor trailer leased by DCPC that displayed

DCPC’s Public Utilities Commission of Ohio (“P.U.C.O.”) number and DCPC’s United

States Department of Transportation (“D.O.T.”) number. Davis illegally drove the

tractor trailer eastbound on Columbia Parkway1 and allegedly attempted an illegal left

turn or U-turn. As Davis was making the turn, Jordan Alexander drove her motorcycle

over the crest of a hill eastbound on Columbia Parkway and collided with the tractor

trailer. Alexander died of her injuries at the scene.

{¶3} Plaintiffs-appellants Teresa Alexander and Daniel Deters, co-

administrators of Alexander’s estate, brought claims for wrongful death and

survivorship against Davis, DCPC, and Q5, negligent hiring and retention against

DCPC and Q5, and negligent supervision against DCPC.

1Cincinnati Municipal Code 506-66 prohibits any vehicle containing more than two axles and four

wheels from driving on Columbia Parkway from Fifth and Pike Streets to Delta Avenue.

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{¶4} Q5 moved for summary judgment on all claims against it on the basis

that Davis was a statutory employee of DCPC at the time of the crash, and therefore,

Q5 could not be held liable pursuant to the Ohio Supreme Court’s decision in Wyckoff

Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 58 Ohio St.3d 261, 569 N.E.2d

1049 (1991). The trial court granted Q5’s motion for summary judgment. Plaintiffs

filed a motion for reconsideration regarding their claim for negligent hiring and

retention. The court denied the motion and amended its judgment entry to certify that

there was no just reason to delay an appeal.

{¶5} Plaintiffs have appealed. In their sole assignment of error, they argue

that the trial court erred in ruling that Q5 was immune from liability for plaintiffs’

claims for wrongful death, survivorship, and negligent hiring and retention. For the

reasons discussed below, the sole assignment of error is sustained. The trial court’s

judgment is reversed and the cause is remanded for further proceedings.

Sole Assignment of Error

{¶6} Summary judgment is appropriate when there exists no genuine issue

of material fact, the party moving for summary judgment is entitled to judgment as a

matter of law, and the evidence, when viewed in favor of the nonmoving party, permits

only one reasonable conclusion that is adverse to that party. Hefler v. Remke Mkts.,

Inc., 1st Dist. Hamilton No. C-200364, 2021-Ohio-2694, ¶ 7. We review a grant of

summary judgment de novo. Id.

{¶7} Central to the trial court’s holding and this appeal is the Ohio Supreme

Court’s decision in Wyckoff, 58 Ohio St.3d 261, 569 N.E.2d 1049. In Wyckoff, the

driver of the tractor trailer rig, Clinton Bell, worked for Wyckoff Trucking, Inc.,

(“Wyckoff”), which owned the rig. Id. at syllabus. Wyckoff leased the rig and Bell’s

services to C.J. Rogers Trucking Co. (“Rogers”). Per the lease, Rogers had exclusive

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OHIO FIRST DISTRICT COURT OF APPEALS

possession, control, and responsibility of the rig. Id. However, Wyckoff and Rogers

had a verbal agreement that the rig could be “trip-leased” to other companies when it

was not being utilized by Rogers. Id.

{¶8} On the day of the accident, Bell completed delivery of a shipment for a

company not involved in the suit. Id. Bell then telephoned Marsh Brothers Trucking

Service, Inc., (“Marsh”) to inquire about trip-leasing the rig to pick up a shipment for

Marsh. Marsh directed Bell to pick up a shipment from Armco Steel and then come to

Marsh’s office in Dayton in order to complete the paperwork for the trip-lease. Id. On

his way to Armco Steel, Bell’s rig collided with a vehicle driven by the plaintiff, Thomas

Howard. Id. Rogers’s Interstate Commerce Commission (“I.C.C.”)2 and P.U.C.O.

placards were displayed on the side of the rig. Id.

{¶9} Howard sued Bell, Rogers, Wyckoff and other parties. Bell and Wyckoff

requested a declaratory judgment to determine whether Rogers and Marsh, along with

their insurance companies, were required to defend and indemnify them. Id. The court

of appeals, citing respondeat superior principles and the Ohio Supreme Court’s

decision in Thornberry v. Oyler Bros., Inc., 164 Ohio St. 395, 131 N.E. 2d 383 (1955),

held that Marsh was jointly and severally liable with Wyckoff for the injuries and

Rogers was not liable because Bell was not acting in the business of Rogers at the time

of the crash. Wyckoff at syllabus.

2The I.C.C. was dissolved in 1996, but its regulations continue to exist under the purview of the

D.O.T.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} The Ohio Supreme Court reversed. Wyckoff, 58 Ohio St.3d at 264, 569

N.E.2d 1049. It noted that the I.C.C. rule that formed the basis of its decision in

Thornberry had been amended, putting Thornberry’s viability in doubt. Id. The

amended rule, codified at 49 C.F.R. 1057.12(c)(1) (the “control regulation”), provided

that the carrier-lessee “shall have exclusive possession and control of the vehicle and

shall assume complete responsibility for the operation of the vehicle” and shall display

its I.C.C. placards on the vehicle. Id. at 264-265. This rule was enacted in response to

perceived “abuses” by carriers that “threatened the public interest and the economic

stability of the trucking industry,” such as the use of leased vehicles to avoid safety

regulations. Id. at 264. The use of leased vehicles had also led to “public confusion as

to who was financially responsible for accidents caused by those vehicles.” Id.

{¶11} The court stated, “The determinative issue in this appeal is whether a

carrier-lessee of a motor vehicle engaged in interstate commerce is liable under

[I.C.C.] regulations for any accidents caused by the negligence of the driver while the

lease is in effect and while the motor vehicle displays the carrier-lessee’s I.C.C.

placards or identification numbers, even though the driver is not the lessee’s

employee.” Id. at 264.

{¶12} The court considered two options. Under the minority approach, where

a lease was in effect at the time of the accident and the lessee’s I.C.C. placards were

displayed on the vehicle, a rebuttable presumption of an employment relationship

between the driver and the carrier-lessee existed. Id. at 265. This meant that the

lessee’s liability was ultimately determined using common-law doctrines, such as

respondeat superior. Id. The majority approach provided that 49 C.F.R. 1057.12(c)(1)

created an irrebuttable presumption (“statutory employment”) of an employment

relationship between the driver and carrier-lessee displaying its I.C.C. placards. Id.

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OHIO FIRST DISTRICT COURT OF APPEALS

The majority view “essentially states that if the driver is negligent, the carrier-lessee is

liable as a matter of law for accidents that occur while a lease is still in effect and its

I.C.C. placards are displayed on the vehicle.” Id.

{¶13} The court adopted the majority approach. “[A] strict construction of the

I.C.C. regulations is more straightforward than the minority view and does a better job

of advancing the interests of the public at large” by compelling lessees to enforce safety

standards and removing factual confusion about which party is responsible for

damages. Wyckoff, 58 Ohio St.3d at 266, 569 N.E.2d 1049. This relieves the burden

on innocent victims and forces the trucking companies to allocate indemnification

agreements among themselves. Id. “Once liability is fixed on the statutory employer,

it is the statutory employer who must seek contribution or indemnification from other

potentially responsible parties, not the innocent victim.” Id. Furthermore, the majority

approach clears up confusion in situations such as the one present in Wyckoff, where

Bell was on his way to pick up a trip-lease load for Marsh, but at any time prior to the

actual pick-up of Marsh’s goods on a trip-lease, Rogers could have demanded use of

Bell's rig under the terms of the lease. Id. The “bright-line” guidelines of the majority

viewpoint “unmistakably fix liability for the accident instead of essentially forcing the

innocent victim to sue everyone in order to redress his injuries and damages.” Id.

{¶14} The court held, “[I]n tort causes of action involving leased vehicles of

interstate motor carriers, primary liability shall be determined with regard to

Interstate Commerce Commission regulations rather than the common-law doctrines

of respondeat superior, master-servant, independent contractor and the like.” Id.

Under the I.C.C. regulations, liability attaches to a lessee where it is established that

at the time of the accident a lease of the vehicle was in effect and the vehicle displayed

the lessee’s I.C.C. placards. Id. Finally, the court held that 49 C.F.R. 1057.12(c)(1)

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OHIO FIRST DISTRICT COURT OF APPEALS

creates an “irrebuttable presumption of an employment relationship” between the

lessee and the driver of a vehicle that displays the lessee’s I.C.C. placards. Id. at 266-

267.

{¶15} Justice Brown concurred in the judgment, but wrote separately to

“emphasize that there is nothing in our opinion which precludes an injured plaintiff

from directly suing parties other than the statutory employer, under common-law

principles, if the plaintiff so desires. As other courts have recognized, Section 1057.12,

Title 49, C.F.R. does not eliminate the common-law liability of parties other than the

statutory employer.” Id. at 267 (Brown, J., concurring).

{¶16} Plaintiffs challenge the trial court’s judgment on three grounds. They

argue that (1) Wyckoff does not apply to protect Q5 in the present case, (2) Wyckoff is

no longer good law, and (3) Wyckoff does not apply to the claim for negligent hiring

and retention filed against Q5.

I. The Scope of Wyckoff

{¶17} Plaintiffs acknowledge that DCPC has primary liability pursuant to

Wyckoff because the truck bore DCPC’s P.U.C.O. and D.O.T. placards. But, they argue,

the trial court improperly extended Wyckoff when it held that Q5 cannot be liable

because DCPC is primarily liable. Plaintiffs argue that the purpose of Wyckoff was to

benefit the victim and the public at large and that the holding in Wyckoff should not

be extended to allow defendants such as Q5 to avoid liability.

{¶18} Q5 argues that Wyckoff established an irrebuttable presumption of

employment for a carrier-lessee that supersedes all common-law doctrines of

employment and liability. As a result, Q5 contends that it is not Davis’s employer, and

therefore, there is no relationship between Davis and Q5 through which liability might

flow.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} We hold that while Wyckoff establishes that DCPC is primarily liable, it

does not establish that DCPC is exclusively liable or that Q5 is not liable.

{¶20} The Wyckoff court held, “[I]n tort causes of action involving leased

vehicles of interstate motor carriers, primary liability shall be determined with regard

to Interstate Commerce Commission regulations rather than the common-law

doctrines of respondeat superior, master-servant, independent contractor and the

like.” (Emphasis added.) Wyckoff, 58 Ohio St.3d at syllabus, 569 N.E.2d 1049.

Significantly, Justice Brown stated in his concurrence that the Wyckoff holding should

not be interpreted as eliminating the common-law liability of parties other than the

statutory employer. Id. at 267 (Brown, J. concurring).

{¶21} Furthermore, this court narrowly interpreted Wyckoff’s holding in

Tolliver v. Braden, 112 Ohio App.3d 86, 677 N.E.2d 1249 (1st Dist.1996). In Tolliver,

Donald Brady was driving a tractor trailer rig home from a social visit with the rig’s

owner, Robert Braden, when he hit and killed another motorist. Id. at 87. Brady was

not hauling any freight or pulling a trailer at the time. Prior to the accident, Braden

had leased the truck to J&W Express and the truck bore J&W’s I.C.C. placards at the

time of the accident. Id.

{¶22} Brady argued that, pursuant to Wyckoff, he was the statutory employee

of J&W at the time of the accident, and therefore, J&W’s insurance provider was

required to defend him against the suit brought by the decedent’s estate. Id. at 87-88.

This court rejected Brady’s argument. The court stated:

[T]he intent of the court’s holding in Wyckoff is to protect the public at

large; it only applies between the ‘innocent victim’ and the interstate

carrier whose placard appears on the vehicle. Wyckoff does not prevent the

carrier deemed to be the statutory employer from seeking indemnification

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OHIO FIRST DISTRICT COURT OF APPEALS

or contribution, nor does it nullify contracts between parties who are not

members of the protected class and who are in a position to determine the

relationships among the parties.

Id. at 88. Brady was not operating the truck with J&W’s permission or furthering its

business at the time of the accident. Id. at 89. Therefore, pursuant to the terms of the

insurance policy, Brady was not covered by the policy. Id.

{¶23} The Tolliver court held that Wyckoff only applies between an innocent

victim and the carrier-lessee whose placards are on the side of the rig, and the intent

of Wyckoff is to protect the public at large. Id. at 88. Therefore, Wyckoff does not apply

where it is the truck driver who seeks to invoke the statutory-employment doctrine in

order to obtain insurance coverage. See id. at 88-89.

{¶24} This interpretation of Wyckoff and Tolliver is supported by other cases.

See Republic W. Ins. Co. v. Williams, D.S.C. No. 9:04-0449-23, 2005 U.S. Dist. LEXIS

55472, *15 (Aug. 15, 2005), citing Tolliver at 88 (“a number of Ohio courts have

limited Wyckoff’s application and have found that its ‘irrebuttable presumption’ rule

was intended to protect injured third-party victims in their suits against motor-

carriers, not the driver of the leased vehicle or a sophisticated entity like his insurer.”);

Diamond State Ins. Co. v. Ranger Ins. Co., 47 F.Supp.2d 579, 588-589 (E.D.Pa.1999),

citing Gilstorff v. Top Line Express, Inc., 6th Cir. No. 96-3081, 1997 U.S. App. LEXIS

780, *10 (Jan. 14, 1997), citing Tolliver, 112 Ohio App.3d at 86, 677 N.E.2d 1249

(“[Some] Ohio appellate courts, and an unpublished Sixth Circuit decision, have

‘limited Wyckoff to its literal application as between the innocent victim and an

interstate carrier-lessee whose I.C.C. number appears on the vehicle, because Wyckoff

itself indicates that the statutory employer may seek contribution and/or

indemnification from other potentially responsible parties.’ ”); Carolina Cas. Ins. Co.

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OHIO FIRST DISTRICT COURT OF APPEALS

v. Panther II Transp., Inc., 402 Fed.Appx. 62, 66 (6th Cir.2010) (“Wyckoff’s language

also strongly suggests that the Ohio Supreme Court never intended to extend the

irrebuttable presumption to anyone other than the victims of truck accidents.”); Harco

Natl. Ins. Co. v. Am. Inter-Fidelity, 6th Dist. Lucas No. L-93-313, 1994 Ohio App.

LEXIS 4461, *6 (Sep. 30, 1994) (Wyckoff only applies between carrier-lessee and

innocent victim); Balez-Pierce v. Price & Boyce, Inc., 86 Ohio App.3d 119, 122, 619

N.E.2d 1194 (5th Dist.1993) (“Wyckoff allocates responsibility as it applies to the

public. It does not affect the interpretation of any contracts among the various parties-

defendant.”); Roseberry v. Balboa Ins. Co., 90 Ohio App.3d 33, 36, 627 N.E.2d 1062

(12th Dist.1993) (“The irrebuttable presumption set forth in Wyckoff was intended for

the benefit of the public at large, not for the driver of the leased vehicle.”).

{¶25} But see Gulick v. Costain Coal, Inc., 5th Dist. Coshocton No. 95-24, 1996

Ohio App. LEXIS 4739, *3 (Oct. 9, 1996); Canal Ins. Co. v. Brogan, 93 Ohio App.3d

765, 771, 639 N.E.2d 1219 (10th Dist.1994) (“Although Wyckoff emphasizes the benefit

to the public from the scheme for determining liability espoused therein, Wyckoff is

clearly also meant to settle issues of liability as to the carrier-lessee, the lessor, and

their respective insurers.”); Ohio Cas. Ins. Co. v. United S. Assur. Co., 85 Ohio App.3d

529, 620 N.E.2d 163 (2d Dist.1993) (same).

{¶26} We hold that Wyckoff does not foreclose plaintiffs from pursuing claims

against Q5 based on the common-law principle of respondeat superior. By establishing

primary liability for one defendant through the statutory-employment doctrine,

Wyckoff did not foreclose the possibility of liability for other defendants through

common-law principles. See Zamalloa v. Hart, 31 F.3d 911, 916 (9th Cir.1994)

(holding that the Wyckoff court had not addressed the issue of whether multiple

carrier-lessees could be liable at the same time). Furthermore, it is questionable

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OHIO FIRST DISTRICT COURT OF APPEALS

whether Wyckoff is still good law after the 1992 amendment to the regulation upon

which its holding was based, 49 C.F.R. 1057.12(c).

II. Is Wyckoff Still Good Law?

{¶27} In 1992, the I.C.C. renumbered and amended 49 C.F.R. 1057.12(c). It

added subsection (4), which provides:

Nothing in the provisions required by paragraph (c)(1) of this section is

intended to affect whether the lessor or driver provided by the lessor is an

independent contractor or an employee of the authorized carrier lessee. An

independent contractor relationship may exist when a carrier lessee

complies with 49 U.S.C. 14102 and attendant administrative requirements.

49 C.F.R. 376.12(c)(4) (originally codified at 49 C.F.R. 1057.12(c)(4)).

{¶28} The I.C.C. explained the purpose of the amendment in its proposal to

amend the regulation:

The purpose of the amendment is to give notice to the courts and workers’

compensation or other administrative tribunals who have ruled otherwise

that, in requiring that a lease provide for the lessee’s “exclusive possession,

control, and use” of the equipment provided by the lessor, it is not the

intention of the Commission’s regulations to define or affect the

relationship between a motor carrier lessee and an independent owner-

operator lessor. * * * [T]he type of control required by the regulation does

not affect “employment” status and * * * it is not the intention of the

regulations to affect the relationship between a motor carrier lessee and

the independent owner-operator lessor.

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OHIO FIRST DISTRICT COURT OF APPEALS

Petition to Amend Lease and Interchange of Vehicle Regulations, 57 Fed.Reg. 32905

(July 24, 1992); accord Petition to Amend Lease & Interchange of Vehicle

Regulations, 8 I.C.C.2d 669, 671 (1992).

{¶29} Multiple federal courts have interpreted the amendment as removing

the control regulation from the employment-status analysis altogether, nullifying the

interpretation relied upon by the court in Wyckoff. See, e.g., UPS Ground Freight, Inc.

v. Farran, 990 F.Supp.2d 848, 860 (S.D.Ohio 2014) (holding that the Wyckoff court

misinterpreted the I.C.C. regulations and that the amendment abrogated the doctrine

of statutory employment); Edwards v. Cardinal Transport, Inc., 821 Fed.Appx. 167,

173 (4th Cir.2020) (discussing how federal courts have interpreted 49 C.F.R.

376.12(c)(4) since the 1992 amendment).

{¶30} For the most part, Ohio courts have followed Wyckoff’s holding, even

after the 1992 amendment. In Cincinnati Ins. Co. v. Stacey, 12th Dist. Clinton No.

CA2008-06-019, 2008-Ohio-6761, ¶ 23, the Twelfth District held that the 1992

amendment did not abrogate Wyckoff. The opinion relied on other courts that have

continued to follow Wyckoff after the amendment, although none of the cases cited

discuss the 1992 amendment. See id. at ¶ 24.

{¶31} In Bookwalter v. Prescott, 168 Ohio App.3d 262, 2006-Ohio-585, 859

N.E.2d 978, ¶ 16 (6th Dist.), the Sixth District recognized that “there may be a question

regarding the status of Wyckoff’s irrebuttable presumption” following the 1992

amendment. But it distinguished Wyckoff factually, and therefore, chose not to resolve

the issue. Id.

{¶32} There is a question as to Wyckoff’s viability following the 1992

amendment to 49 C.F.R. 376.12(c). However, we do not reach that issue definitively

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because we hold that Wyckoff does not insulate Q5 from potential liability for the

derivative wrongful-death and survivorship claims.

III. Does Wyckoff apply to plaintiffs’ claim for negligent hiring and

retention against Q5?

{¶33} Plaintiffs argue that Wyckoff does not bar their claim for negligent

hiring and retention against Q5 because that claim is a direct claim based on Q5’s

negligent acts/omissions. Specifically, plaintiffs allege that Q5 knew or should have

known that Davis was incompetent to drive a tractor trailer and that Q5’s negligence

in hiring and retaining Davis was the proximate cause of Alexander’s death.

{¶34} Q5 does not dispute that a claim for negligent hiring and retention is a

direct claim or that Wyckoff does not control direct claims. Rather, Q5 contends that

under the doctrine of statutory employment, DCPC is Davis’s sole employer as a matter

of law. Therefore, it argues that plaintiffs cannot satisfy the first element of a claim for

negligent hiring and retention—the existence of an employment relationship between

Q5 and Davis. See Linder v. Am. Natl. Ins. Co., 155 Ohio App.3d 30, 2003-Ohio-5394,

798 N.E.2d 1190, ¶ 31 (1st Dist.) (discussing the elements of an action for negligent

hiring and retention).

{¶35} As discussed above, Wyckoff definitively establishes an employment

relationship between DCPC and Davis, but not to the exclusion of an employment

relationship between Davis and Q5.

{¶36} Q5 also contends that it surrendered any control over Davis when it

entered into a contract to provide Davis’s services to DCPC. This argument misses the

point of plaintiffs’ claim for negligent hiring and retention against Q5. Q5’s alleged

negligence occurred prior to Davis’s alleged actions in causing the accident. Plaintiffs

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claim that Q5 was negligent in hiring Davis and placing her in the pool of drivers from

which she was chosen by DCPC.

{¶37} Therefore, Wyckoff does not bar plaintiffs’ claim for negligent hiring

and retention against Q5.

Conclusion

{¶38} The holding in Wyckoff does not shield Q5 from liability for any of the

claims in this case. Furthermore, the viability of the Wyckoff decision is questionable

based on the 1992 amendment to 49 C.F.R. 376.12(c). The sole assignment of error is

sustained. The judgment of the trial court is reversed and the cause is remanded for

further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

MYERS, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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