Heitmeyer v. Arthur

[Cite as Heitmeyer v. Arthur, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




ALICIA HEITMEYER,

        PLAINTIFF-APPELLANT,                             CASE NO. 5-22-01

        v.

GARY ARTHUR,                                             OPINION

        DEFENDANT-APPELLEE.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2020 CV 0197

                                     Judgment Affirmed

                         Date of Decision: November 28, 2022




APPEARANCES:

        Dorothy L. Williams for Appellant

        William E. Clark for Appellee
Case No. 5-22-01


ZIMMERMAN, P.J.

          {¶1} Plaintiff-appellant, Alicia Heitmeyer (“Heitmeyer”), appeals the

January 26, 2022 judgment of the Hancock County Court of Common Pleas

awarding her $392.16 as to her conversion claim. For the reasons that follow, we

affirm.

          {¶2} This case stems from Heitmeyer’s allegation that her father, defendant-

appellee, Gary Arthur (“Gary”), established a bank account for her under the

Uniform Transfer to Minors Act (“UTMA”), and that he converted the funds in that

account for his own benefit.

          {¶3} On June 11, 2020, Heitmeyer filed a complaint against Gary in the trial

court alleging claims for conversion and punitive damages. On August 20, 2020,

Gary filed an answer along with a third-party complaint against Dianne M. Arthur

(“Dianne”), Heitmeyer’s mother, alleging a claim for contribution. Dianne filed her

answer to Gary’s third-party complaint on October 2, 2020.                              However, Gary

dismissed his third-party compliant against Dianne without prejudice under Civ.R.

41(A)(1)(a) on July 2, 2021.

          {¶4} The case proceeded to a hearing before the trial court’s magistrate on

July 2, 2021, after which the trial court’s magistrate permitted the parties to submit

proposed findings of fact and conclusions of law.1 On September 21, 2021, the trial


1
 Even though the transcript reflects that the hearing was a bench trial before the trial court, the record
unequivocally reflects, and the parties agree, that those references in the transcript are scrivener’s errors.

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Case No. 5-22-01


court’s magistrate concluded that Heitmeyer failed to prove that the account is an

UTMA account or that any transfer occurred while Heitmeyer “was still a ‘minor’

under the [U]TMA.” (Doc. No. 59). However, because Heitmeyer demonstrated

that she deposited two paychecks into the account, the trial court’s magistrate

concluded that Heitmeyer should be awarded $392.16.2

           {¶5} On October 5, 2021, Heitmeyer filed her objections to the magistrate’s

decision. However, Heitmeyer failed to provide the trial court with a transcript of

the hearing conducted before the trial court’s magistrate. See Fogt v. Fogt, 3d Dist.

Defiance No. 4-18-10, 

. Gary filed his memorandum in

opposition to Heitmeyer’s objections to the magistrate’s decision on November 9,

2021.

           {¶6} On December 13, 2021, the trial court issued its entry overruling

Heitmeyer’s objections to the magistrate’s decision. On January 26, 2022, the trial

court issued judgment in favor of Heitmeyer by awarding her $392.16 as to her

conversion claim.

           {¶7} On February 22, 2022, Heitmeyer filed a notice of appeal. She raises

four assignments of error for our review, which we will discuss together.

                                    Assignment of Error No. I

           The Trial Court Erred in Determining That the Evidence Did Not
           Support a Finding That the Account Was a OTMA Account.

2
    Heitmeyer dismissed her punitive-damages claim under Civ.R. 41(B)(2).

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Case No. 5-22-01



                           Assignment of Error No. II

       The Trial Court Erred in Seeking Clear and Convincing Evidence
       When the Burden is Clearly Preponderance of the Evidence.

                           Assignment of Error No. III

       The Trial Court Failed to Determine Ownership of the Account.

                           Assignment of Error No. IV

       The Trial Court Erred in Failing to Recognize the Account in
       Question as a Fiduciary Account.

       {¶8} In her assignments of error, Heitmeyer argues that the trial court abused

its discretion by adopting the magistrate’s decision concluding that she did not

demonstrate ownership or a right to possess the account (beyond the $392.16).

Specifically, Heitmeyer argues that the trial court erred by failing to conclude that

the parties established a UTMA account, that she is the owner of the UTMA

account, and by failing to award her the full balance of the account.

                                Standard of Review

       {¶9} “Generally, ‘[a]n appellate court reviews the trial court’s decision to

adopt, reject or modify the Magistrate’s decision under an abuse of discretion

standard.’” Fogt, 

, quoting Tewalt v. Peacock, 3d Dist.

Shelby No. 17-10-18, 

. An abuse of discretion suggests the

trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 

 (1983).

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       {¶10} When reviewing a party’s objections to a magistrate’s decision, “[t]he

trial court may adopt, reject, or modify the magistrate’s decision.” Sheehan v.

Sheehan, 3d Dist. Defiance No. 4-19-25, 

, citing Civ.R.

53(D)(4)(b). Significantly, when reviewing those objections, “the trial court is ‘not

required to follow or accept the findings or recommendations of its magistrate.’”

 quoting Stumpff v. Harris, 2d Dist. Montgomery No. 21407, 

. “Instead, the trial court ‘shall undertake an independent review as to the

objected matters to ascertain that the magistrate has properly determined the factual

issues and appropriately applied the law.’” 

 quoting Civ.R. 53(D)(4)(d), and

citing 

. “Accordingly, the trial court reviews the magistrate’s

decision under a de novo standard of review,” which is “‘independent and without

deference to the [magistrate’s] determination.’” 

 citing 

; Canter

v. Garvin, 3d Dist. Union No. 14-19-30, 

, quoting ISHA, Inc. v.

Risser, 3d Dist. Allen No. 1-12-47, 

.

       {¶11} To aid the trial court’s independent review, Civ.R. 53(D) specifies that

objections to factual findings must “be supported by a transcript of all the evidence

submitted to the magistrate relevant to that finding or an affidavit of that evidence

if a transcript is not available.” Civ.R. 53(D)(3)(b)(ii). Importantly, “‘[t]he duty to

provide a transcript to the trial court rests with the person objecting to the




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magistrate’s decision.’” 

, quoting Slepsky v. Slepsky, 11th Dist. Lake

No. 2016-L-032, 

, ¶ 20. See also Civ.R. 53(D)(3)(b)(ii).

       {¶12} “Where a party fails * * * to file a transcript of the evidence presented

at the magistrate’s hearing, the trial court, when ruling on the objections, is required

to accept the magistrate’s findings of fact and to review the magistrate’s conclusions

of law based on the factual findings.” 

, quoting Nieto v. Marcellino,

11th Dist. Geauga No. 2017-G-0146, 

. “‘“Where the failure

to provide the relevant portions of the transcript or suitable alternative is clear on

the face of the submissions, the trial court cannot then address the merits of that

factual objection because the objecting party, whether through inadvertence or bad

faith, has not provided all of the materials needed for the review of that objection.”’”

(Emphasis sic.) 

 quoting 

, quoting Wade v. Wade, 

 (11th Dist.1996).

       {¶13} “‘“On appeal of a judgment rendered without the benefit of a transcript

or affidavit, an appellate court only considers whether the trial court correctly

applied the law to the facts as set forth in the magistrate’s decision.”’” Id. at ¶ 17,

quoting In re Estate of Stanford, 2d Dist. Montgomery No. 23249, 

,

¶ 22, quoting In re Estate of Lucas, 2d Dist. Montgomery No. 23088, 2009-Ohio-

6392, ¶ 32.




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                                      Analysis

       {¶14} As an initial matter, it is undisputed that Heitmeyer failed to provide

the trial court with a transcript of the evidence presented at the hearing conducted

before the trial court’s magistrate. Consequently, this court will consider only

whether the trial court correctly applied the law to the facts as set forth in the

magistrate’s decision. See generally In re Estate of Lucas at ¶ 32.

       {¶15} Nevertheless, on appeal, Heitmeyer contends that the trial court

abused its discretion by adopting the magistrate’s decision concluding that Gary

converted only $392.16 from the account. “Conversion is the ‘“wrongful exercise

of dominion over property to the exclusion of the rights of the owner, or withholding

it from his possession under a claim inconsistent with his rights.”’” Warnecke v.

Chaney, 

, 

 (3d Dist.), quoting State ex

rel. Toma v. Corrigan, 

 (2001), quoting Joyce v. Gen. Motors

Corp., 

 (1990). “‘The elements of conversion are: (1) plaintiff’s

ownership or right to possession of the property at the time of the conversion; (2)

defendant’s conversion by a wrongful act or disposition of plaintiff’s property

rights; and (3) damages.’” 

 quoting Miller v. Cass, 3d Dist. Crawford No. 3-09-

15, 

. “To prevail on a claim of conversion, the plaintiff bears

the burden of proving all the elements necessary to sustain that claim by a

preponderance of the evidence.” Hutchings v. Hutchings, 6th Dist. Sandusky No.


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S-19-008, 

. See also Burson v. Peoples Bank, 3d Dist.

Wyandot No. 16-92-31, 

, *2 (Sept. 1, 1993) (applying the

preponderance-of-the-evidence standard to a conversion claim). But see Dice v.

White Family Cos., 

, 

 (2d Dist.)

(suggesting that the clear-and-convincing-evidence standard applies to conversion

claims).

       {¶16} “A ‘preponderance of the evidence means the greater weight of the

evidence that is necessary to destroy the equilibrium.’” Golan-Elliot v. Elliot, 3d

Dist. Union No. 14-17-01, 

, quoting Reed v. Reed, 3d Dist.

Allen No. 1-09-63, 

. See also In re J.B., 3d Dist. Allen No.

1-15-79, 

 (“‘Preponderance of the evidence’ means evidence

that is more probable, more persuasive, or of greater probative value.”).

       {¶17} We conclude that the trial court did not abuse its discretion by

overruling Heitmeyer’s objections and adopting the magistrate’s decision. That is,

the trial court correctly applied the law to the facts as set forth in the magistrate’s

decision.

       {¶18} To begin with, there is no dispute that Heitmeyer is entitled to the

$392.16. Specifically addressing Heitmeyer’s argument that Gary converted the

funds from two of her paychecks deposited into the account, the trial court’s

magistrate concluded that Heitmeyer is entitled to $392.16 from those two


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paychecks (payable to Heitmeyer) deposited into the account. The trial court

likewise concluded that Heitmeyer proved that Gary converted the funds from the

paychecks deposited into the account. Thus, the trial court issued judgment in favor

of Heitmeyer by awarding her $392.16 as to her conversion claim from the

paychecks deposited into the account.

         {¶19} Nevertheless—based on the evidence presented to the trial court’s

magistrate—Heitmeyer did not sustain her burden of demonstrating ownership or a

right to possess the remainder of the account. “A UTMA account is created by

following specific statutory guidelines.”3 In re Marriage of Soenksen & Gillett, 

, 

, *6 (Kan.App.2013). Under Ohio’s UTMA, which is

codified under R.C. Chapter 5814, “a minor can have money, securities, and other

property invested in his or her name with the custodian having a fiduciary

responsibility for managing the funds in the accounts prudently.” Whitman v.

Whitman, 3d Dist. Hancock No. 5-11-20, 

.

         {¶20} Specifically, under Ohio’s UTMA, “[a] person * * * may * * * make

a gift or transfer of * * * money [to] a person who is a minor on the date of the gift


3
  Because the UTMA is a uniform-statutory scheme, courts “‘may look to other jurisdictions’ resolutions of
the question to inform our own, thus encouraging cross-jurisdictional uniformity.’” Belk v. Belk, 

, 

 (2012), quoting In re Gumpher, 

 (Pa.Super.2003). See
also Ivers v. Salladay, 

, 

 (2012) (“Because the UTMA is a uniform law
that, to the extent possible, should be interpreted uniformly, ‘case law from other states provides part of the
statutory context.’”), quoting Edward D. Jones & Co. v. Mishler, 

, 

(1999).



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Case No. 5-22-01


or transfer.” (Emphasis added.) R.C. 5814.02(A). “Under R.C. 5814.03, ‘a gift or

transfer to a minor child made pursuant to the [UTMA] is irrevocable and conveys

to the minor indefeasibly vested legal title to the property.’” Miller v. Miller, 8th

Dist. No. 107319, 

, quoting Wojanowski v. Wojanowski, 8th

Dist. Cuyahoga No. 99751, 

. See also Annotation, Uniform

Transfers to Minors Act, 64 A.L.R.7th Art. 1 (2021) (analogizing that “the UTMA

might be viewed as a form of guardianship that continues until the minor reaches

21”).

        {¶21} Importantly, to constitute an irrevocable transfer under the statute,

“[i]f the subject of the gift or transfer is money,” the donor must deliver the money

“by paying or delivering it to a broker, or a financial institution for credit to an

account in the name of the donor or transferor, another person who is eighteen years

of age or older, or a trust company, followed, in substance, by the words: ‘as

custodian for * * * (name of minor) under the Ohio Transfers to Minors Act.’” R.C.

5814.02(A)(3).

        {¶22} “These funds, or accounts, are the sole property of the minor child in

which the parents of the child ‘“have absolutely no property interest.”’” Miller at ¶

42, quoting Hyder v. Hyder, 9th Dist. Wayne No. 06CA0014, 

,

quoting Ramus v. Ramus, 8th Dist. Cuyahoga No. 34965, 

, *3

(Aug. 19, 1976). However, “where the transferor is the custodian, the transferor


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retains control of the funds within the limitations of the statute, leaving the minor

with no control over the gifted property.” Sternlicht v. Sternlicht, 

, 161-

162, 

 (2005).

       {¶23} Unless the custodian specifies otherwise, “[a]t the time the minor

attains the age of 21, he or she is no longer considered a minor for the purpose of

these accounts and has complete rights to the funds in the accounts.” Whitman,

. See R.C. 5814.01(K)(1), (2) and 5814.09.          That is, the

custodian is required to hold the funds until the minor (generally) reaches the age of

21, then is required to turn those funds over to the minor, unless the funds are

expended for the minor’s benefit in the interim. Accord In re Johns, 

 (Bankr.D.Ariz.1995); R.C. 5814.04(D)(1). “[U]nder the UTMA, any changes

to a custodial account held on behalf of a minor[] must be made by a probate court.”

Miller at ¶ 42, citing Brown v. Brown, 12th Dist. Madison No. CA2008-08-021,

.

       {¶24} In its September 21, 2021 decision, the trial court’s magistrate

concluded that Heitmeyer failed to establish “even by a preponderance of the

evidence” “whether the account is an [UTMA] account compliant with Ohio law.”

(Doc. No. 59). In other words, the trial court’s magistrate concluded that Heitmeyer

failed to demonstrate ownership or the right to possess the account at the time of the

alleged conversion. See Hutchings, 

.


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       {¶25} In concluding that Heitmeyer failed to meet her burden of establishing

that an account was created under Ohio’s UTMA, the trial court’s magistrate found

that a bank account was opened on February 3, 1993 and that Heitmeyer attained

the age of 21 in 2004. However, the trial court’s magistrate found that “[n]o records

exist for this account prior to April 1, 2010.” (Doc. No. 59). Moreover, the trial

court’s magistrate found that Gary “requested and received an updated signature

card to reflect [Heitmeyer’s] new last name after her * * * marriage” in 2013. (Id.).

The trial court’s magistrate further found that the updated signature card designates

Heitmeyer as a minor and Gary as a custodian and reflects “the language

‘ACCOUNT TYPE: Uniform Transfers to Minors Act (UTMA).’” (Emphasis sic.)

(Id., quoting Plaintiff’s Ex. B). Nevertheless, the trial court’s magistrate found that

“[c]ontrarily, ‘[n]ame 1’ at the signature line contains the name ‘Gary Arthur.’ This

is typed on the Signature Card, indicting the bank’s creation of this text. [Gary]

signed on this line.” (Id., quoting Plaintiff’s Ex. B). Importantly, the trial court’s

magistrate concluded that the UTMA designation on the signature card “is not,

necessarily, sufficient to comply with the statutory requirements for the creation of

the account.” (Id.).

       {¶26} Furthermore, as evidence that the account is not a custodial account

under the UTMA, the trial court’s magistrate found that Gary and Dianne divorced




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in 2019 and that the funds in the account were divided equally as marital property

and that the account was closed thereafter.

       {¶27} In the alternative, the trial court’s magistrate concluded that Gary

successfully rebutted any presumption of donative intent. That is, the trial court’s

magistrate concluded that Heitmeyer failed to prove that any transfers to the account

(other than the $392.16) constituted gifts or transfers under the UTMA because

“they were not made to a ‘minor.’” (Id., quoting R.C. 5814.02(A)). Similarly, as

to Gary’s donative intent, the trial court’s magistrate found that Gary “utilized the

account to direct deposit checks he received for providing training to college

football referees and other related services” and “that he deposited his state and

federal income tax refunds into the account each year.” (Id.). Importantly, the trial

court’s magistrate found that Gary “testified that at no time did he intend to gift

these amounts to [Heitmeyer] for any deposits made after she reached the statutory

age of majority.” (Id.).

       {¶28} In its December 13, 2021 decision overruling Heitmeyer’s objections

to the magistrate’s decision, the trial court, accepting the magistrate’s findings of

fact, similarly concluded that Heitmeyer failed to prove that an account was created

under Ohio’s UTMA and that she held complete rights to the funds (other than the

$392.16) in the account. Moreover, the trial court concluded that the magistrate

properly reasoned that Heitmeyer did not prove that any of the funds were delivered


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into the account when she was a minor or that Gary intended to make an irrevocable

gift of the money to her.

       {¶29} Based on the evidence before the trial court’s magistrate, the trial court

did not abuse its discretion by concluding that Heitmeyer did not demonstrate her

ownership or right to possesses the account (other than the $392.16). Further, we

conclude that the trial court correctly applied the law to the facts as set forth in the

magistrate’s decision by determining that Heitmeyer did not demonstrate that the

parties opened a custodial account under Ohio’s UTMA. That is, the trial court

properly concluded that the signature card does not comport with the statutory

language under R.C. 5814.02(A)(3) to authenticate transfers into the account as

irrevocable transfers under the statute. See Hyder, 

. See also

State v. Keith, 

 (9th Dist.1991) (noting that “the listing on

the signature card did not comply with the requirements of” the statute); In re

Marriage of Soenksen & Gillett, 

, at *6.

       {¶30} Likewise, since the funds in the account were divided as marital

property in Gary and Dianne’s divorce proceeding also corroborates the trial court’s

conclusion that the account was not a custodial account under the UTMA. See

Brown, 

 (“‘A custodial account held for the benefit of a

child is neither marital [n]or separate property.’”), quoting Wilson v. Wilson, 9th

Dist. Wayne No. 95CA0089, 

, *5 (July 24, 1996).


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        {¶31} In the alternative, the trial court properly applied the law to the facts

as set forth in the magistrate’s decision to conclude that Heitmeyer did not prove

that any of the funds in the account were transferred into the account when she was

a minor.     Indeed, based on the evidence before the trial court’s magistrate,

Heitmeyer did not submit any evidence documenting the account’s activity prior to

April 1, 2010 even though the account was allegedly established on February 3,

1993.

        {¶32} Based on the clear and unambiguous language of the statute, R.C.

Chapter 5814 clearly contemplates gifts to a minor (as defined by the statute). See

HUNY & BH Assoc., Inc. v. Silberberg, N.J.Super. No. A-1696-17, 

, *24 (Dec. 27, 2021) (concluding that the UTMA “does not apply to

deposits made after the child ceases being a minor”), citing Peter v. Gibson, 

 (Ky.2010) (holding that the law of constructive trusts, not the UTMA,

governs the rights and remedies to custodial property that a custodian failed to

transfer when a minor reaches the age of majority). See also Schout v. Schout, 

, 

 (2000) (applying the rules of statutory

interpretation to the UTMA). There is no dispute that Heitmeyer is not a minor

within the meaning of the statute—that is, Heitmeyer attained the age of 21 in

2004—and there is no evidence that the time for delivery was delayed. See 

.


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       {¶33} Furthermore, the trial court did not abuse its discretion by adopting the

magistrate’s decision concluding that Gary successfully rebutted any presumption

of donative intent. In Ohio, the elements of an inter vivos gift are: (1) the donor’s

intent to make an immediate gift; (2) delivery of the gift; and (3) acceptance of the

gift by the donee after the donor has relinquished dominion and control over the

gift. Ardrey v. Ardrey, 3d Dist. Union No. 14-03-41, 

;

Streeper v. Myers, 

 (1937), paragraph one of the syllabus.

“Generally, the donee has the burden of showing, by clear and convincing evidence,

that the donor made an inter vivos gift.” Soley v. Soley, 6th Dist. Huron No. H-16-

021, 

. See also 

; Sternlicht, 

(Cappy, C.J., concurring) (“Under the common law, when the validity of a gift is

challenged, the alleged donee of an inter vivos gift has the burden of proving by

clear and convincing evidence that delivery to the donee occurred and that the

alleged donor had donative intent.”).

       {¶34} “‘Once prima facie evidence of a gift is established, a presumption

arises that the gift is valid, and the burden is then on the contestant to rebut the

presumption by clear * * * and convincing evidence.’” 

 (Cappy,

C.J., concurring), quoting Banko v. Malanecki, 

, 

(1982). See also Brandon v. Brandon, 3d Dist. Mercer No. 10-08-13, 2009-Ohio-

3818, ¶ 26. “Clear and convincing evidence is that measure or degree of proof


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which will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations sought to be established. It is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt * * * .” Cross v. Ledford, 

, 477 (1954).

       {¶35} However, “transfers made to a custodian account [under the UTMA]

are not controlled by common law requirements of delivery and acceptance of the

gift.” 

. “Indeed, there is no requirement that the minor for

whose benefit the account is opened even be aware of the account, let alone accept

it, notwithstanding that this is inconsistent with the traditional common law

elements of a gift.” 

 “On the contrary, under the statute, where the transferor is

the custodian, the transferor retains control of the funds within the limitations of the

statute, leaving the minor with no control over the gifted property.”                

Nevertheless, the custodian is required to hold the funds until the minor generally

reaches the age of 21 and to turn those funds over to the minor, unless the funds are

expended for the minor’s benefit in the interim. Accord In re Johns, 

; R.C. 5814.04(D)(1).

       {¶36} Generally, establishing “a bank account [under the UTMA] is prima

facie evidence of donative intent.” Keith, 

, citing Gordon v.

Gordon, 

, 

 (1979), Heath v. Heath, 

 (1986), and Golden v. Golden, 

 (Fla.App.1983).


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See also Golden v. Golden, 

 (Fla.App.1986) (“The establishment

of an account in a child’s name pursuant to the [UTMA] creates a rebuttable

presumption of donative intent”).        However, “[e]xtrinsic evidence may be

introduced to demonstrate contrary intent.” 

, citing 

, Heath

at 394-395, and Golden, 

. See also of In re Marriage of Hendricks,

 (Ind.App.1997).

       {¶37} Thus, based on our review of the record, we conclude that the trial

court properly applied the law to the available facts to conclude that Gary lacked

donative intent. Importantly, the evidence before the trial court’s magistrate reflects

that Gary treated the account as his own. Accord 

 (concluding that

“despite the form of the account, [the defendant] did not intend to make a gift of the

money contained in the account but rather considered it her own”). Specifically, the

trial court’s magistrate found that Gary testified that he did not intend for any

deposits that he transferred into the account after Heitmeyer reached the age of

majority to constitute a gift. See Silberberg, 

, at *24 (concluding

that “the post-twenty-first-birthday deposits * * * were not intended as gifts”).

       {¶38} Furthermore, the evidence before the trial court’s magistrate bolsters

Gary’s testimony and reflects that he treated the account as his own. Importantly,

the trial court’s magistrate found that Gary utilized the account to deposit checks

that he received for training college-football referees and other related services as


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well as to deposit his annual tax-refund checks. See 

 (describing that

the defendant’s “actions with respect to the account did not evidence an intention

on her part to make an irrevocable gift of the money to” her daughter because

“shortly after opening the account, [she] withdrew $20,000 to purchase a piece of

commercial property”). Thus, the trial court did not err by concluding that Gary

lacked donative intent.

       {¶39} For these reasons, the trial court correctly applied the law to the facts

as set forth in the magistrate’s decision and did not abuse its discretion by adopting

the magistrate’s decision.

       {¶40} Therefore, Heitmeyer’s assignments of error are overruled.

       {¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

MILLER and WILLAMOWSKI, J.J., concur.

/jlr




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