[Cite as State ex rel. Smith v. Hayes, 2014-Ohio-1367.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO ex rel. 

KELLY SMITH, 

: PER CURIAM OPINION 

:

 Relator, 

: CASE NO. 2013-P-0089

 - vs - 

:

JERRY L. HAYES, JUDGE, 

:

 Respondent. 

Original Action for Writ of Prohibition. 

Judgment: Petition dismissed. 

Mary E. Randazzo, 6555 Dean Memorial Parkway, Boston Heights, OH 44236 (For 

Relator). 

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, 

OH 44266 (For Respondents). 

Brendan Kohrs, 421 Graham Road, Suite F, Cuyahoga Falls, OH 44221 (Guardian ad 

litem). 

PER CURIAM. 

{¶1} This original action is before this court for final consideration of 

respondent’s motion to dismiss the prohibition petition, pursuant to Civ.R. 12(B)(6). 

Respondent, Judge Jerry L. Hayes of the Portage County Court of Common Pleas, 

Domestic Relations Division, argues that relator, Kelly Smith, has failed to state a viable 

claim for the writ because her factual allegations can only be construed to support the 
 2

conclusion that he has jurisdiction to rule upon the pending motions in the underlying 

dissolution case. For the following reasons, the dismissal is warranted. 

{¶2} The following statement of facts is based solely upon the allegations in the 

prohibition petition and accompanying exhibits. Relator and Nathan M. Smith (“Smith”) 

were married for approximately five years and had one child. Even though the couple 

initially lived in Utah, they ultimately moved to Portage County, Ohio, where Smith was 

attending dental school with the goal of becoming an anesthesiologist. After the couple 

mutually decided to terminate their marriage, Smith moved to Pennsylvania for the 

express purpose of continuing his education. 

{¶3} In 2008, Smith and relator filed an action in the Portage County domestic 

relations court to dissolve the marriage. During that proceeding, Smith was represented 

by counsel, while relator acted pro se. To facilitate the “dissolution” process, Smith and 

relator negotiated a separation agreement in which they resolved all issues relating to 

child custody and visitation, distribution of marital property, and spousal support. This 

agreement was incorporated into the trial court’s final dissolution decree, rendered on 

July 21, 2008. 

{¶4} Regarding Smith’s payment of spousal support to relator, the separation 

agreement provided: 

{¶5} “The parties acknowledge that Husband shall pay to Wife the amount of 

Six Thousand Five Hundred Dollars ($6,500.00) per month beginning January 1, 2013. 

Husband shall pay to Wife Nine Thousand One Hundred ($9,100.00) per month 

beginning January 1, 2020 due to Husband’s anticipated income. Husband’s spousal 

support obligation shall terminate upon Wife’s remarriage only. If Husband shall 
 3

become disabled, Husband’s spousal support obligation will be reduced by one-half.” 

{¶6} As originally written, the spousal-support term did not have any language 

pertaining to the trial court’s retention of jurisdiction over the issue. However, when the 

separation agreement was presented to the trial court for review prior to the release of 

the final decree, the court mandated that the following sentence be added to the term: 

“This court shall retain jurisdiction over Husband’s spousal support obligation.” The new 

sentence was handwritten unto the copy of the agreement attached to the final decree, 

and both Smith and relator initialed the amendment. 

{¶7} Two weeks after the dissolution decree was issued, Smith and relator 

submitted an agreed judgment entry to the trial court for approval. This entry had been 

prepared by Smith’s counsel, and had already been executed by Smith and relator. The 

entry stated that, in exchange for mutual promises and consideration, Smith and relator 

had agreed to modify the separation agreement to provide that the trial court would not 

retain jurisdiction over the spousal-support issue, and that the support obligation, as set 

forth in the agreement, would not end until Smith died or relator remarried. On August 

4, 2008, the trial court approved the agreed judgment entry. 

{¶8} No new proceedings were held in the dissolution action over the next four 

years. However, when Smith’s initial obligation to pay spousal support was scheduled 

to commence in January 2013, he began to file a series of motions in the trial court. On 

January 4, 2013 alone, he submitted four motions relating to: (1) the validity of the final 

dissolution decree; (2) his spousal support obligation; or (3) his right to visitation with, or 

custody of, the minor child. In his first motion, Smith requested the trial court to vacate 

the final dissolution decree and all subsequent orders in the case, pursuant to Civ.R. 
 4

60(B). In the second, he moved for modification of his spousal support obligation under 

the separation agreement. 

{¶9} Over the next few weeks, Smith filed an additional four motions to vacate 

the final dissolution decree or the August 4, 2008 agreed judgment entry pertaining to 

the trial court’s continuing jurisdiction over the spousal-support issue. Furthermore, he 

submitted an amended motion to modify his support obligation and moved to stay his 

support obligation until the trial court could address the merits of his various motions. 

{¶10} On April 16, 2013, Smith filed a brief that discussed the substance of all of 

his pending motions. In relation to his motions to vacate the final dissolution decree, he 

contended that: (1) he had been subject to duress from relator during the negotiation of 

the separation agreement; (2) relator had committed fraud by failing to timely inform him 

of the extent of her student loans for purposes of determining the total marital debt; and 

(3) at the outset of the case, relator did not submit a required “parenting” affidavit under 

R.C. 3127.23. As to his motion to vacate the August 4, 2008 agreed judgment entry, he 

argued that the amendment of the spousal-support term was unenforceable because he 

did not receive any consideration in exchange for agreeing that the trial court would not 

retain jurisdiction over the support issue. 

{¶11} Before any hearing could be held on Smith’s motions, the sitting domestic 

relations judge for Portage County issued a judgment stating that she was disqualifying 

herself from the “Smith” dissolution action. Respondent was assigned by the Ohio 

Supreme Court to proceed as a visiting judge for the case. 

{¶12} In late October 2013, Smith filed a renewed motion to temporarily suspend 

his spousal support obligation. One day later, relator moved to dismiss each of the four 
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pending motions in which Smith had sought either a stay or modification of the spousalsupport term in the separation agreement. Relator maintained that the trial court had no 

authority to reduce or suspend Smith’s support obligation because the August 4, 2008 

agreed judgment entry expressly stated that the court would not retain jurisdiction going 

forward over that particular issue. 

{¶13} On the same day relator filed her motion to dismiss, respondent signed an 

attorney-prepared judgment granting the dismissal of the referenced motions. One day 

later, respondent rendered a second judgment stating that the issuance of the dismissal 

judgment had not been intended; accordingly, the dismissal judgment was vacated, and 

Smith’s motions were reinstated. 

{¶14} In response to the vacation of the dismissal judgment, relator initiated this 

separate action for a writ of prohibition. In her petition, she requests the issuance of the 

writ to enjoin respondent from considering the merits of, or issuing any ruling upon, any 

motion Smith has filed in the dissolution case, unless the motion directly pertains to the 

sole minor child. Concerning the question of spousal support, relator again asserts that 

respondent has no authority to render a new order because the separation agreement 

was amended to take away the trial court’s continuing jurisdiction over that point. As to 

the question of property distribution, she alleges that respondent cannot issue any new 

order regarding the allocation of the marital debt because she and Smith never agreed 

to give the trial court continuing jurisdiction over that point. Last, in regard to Smith’s 

motions to vacate, relator contends that Smith cannot be granted relief from the final 

dissolution decree because: (1) he is attempting to use the motions as substitutes for a 

direct appeal from the decree; and (2) none of the motions were timely filed. 
 6

{¶15} As previously mentioned, respondent has moved to dismiss relator’s entire 

prohibition petition for failing to state a viable claim for relief. In that motion, respondent 

focuses his argument solely upon Smith’s first motion to vacate, filed in the dissolution 

case on January 4, 2013. Specifically, he notes that the first motion to vacate does not 

request a modification of the spousal-support term in the separation agreement; rather, 

it asks for relief from the final dissolution decree pursuant to Civ.R. 60(B). Respondent 

further notes that the first motion alleges a permissible basis for relief under the rule. In 

light of this, he submits that he has jurisdiction to proceed on the motion to vacate, and 

that relator is improperly trying to contest the merits of the motion through a prohibition 

petition. 

{¶16} Relator has not submitted a brief in opposition to the motion to dismiss; as 

a result, only the legal arguments contained in her prohibition petition can be analyzed 

in determining whether dismissal is justified under Civ.R. 12(B)(6). 

{¶17} In asserting that respondent will exceed the scope of his jurisdiction as a 

domestic relations judge if he takes any additional steps in the underlying action, relator 

has referred to two basic types of pending submissions: (1) motions to modify, suspend, 

or stay the spousal-support term in the separation agreement; and (2) motions to vacate 

the final dissolution decree or the August 4, 2008 agreed judgment entry. Of these two 

categories, the jurisdictional analysis as to the first is the most straightforward. Under 

current Ohio law, the continuing jurisdiction of a domestic relations court over an award 

of spousal support is governed solely by a statutory provision. R.C. 3105.18(E) states: 

{¶18} “(E) If a continuing order for periodic payments of money as alimony is 

entered in a divorce or dissolution of marriage action that is determined * * *January 1, 
 7

1991, the court that enters the decree of divorce or dissolution of marriage does not 

have jurisdiction to modify the amount or terms of the alimony or spousal support unless 

the court determines that the circumstances of either party have changed and unless 

one of the following applies: 

{¶19} “(1) In the case of a divorce, the decree or a separation agreement of the 

parties to the divorce that is incorporated into the decree contains a provision 

specifically authorizing the court to modify the amount or terms of alimony or spousal 

support. 

{¶20} “(2) In the case of a dissolution of marriage, the separation agreement that 

is approved by the court and incorporated into the divorce decree contains a provision 

specifically authorizing the court to modify the amount or terms of alimony or spousal 

support.” 

{¶21} In applying R.C. 3105.18(E) in the context of a divorce case, “a trial court 

has the authority to modify or terminate an order for alimony or spousal support only if 

the divorce decree contains an express reservation of jurisdiction.” Kimble v. Kimble, 

97 Ohio St.3d 424, syllabus (2002). This court has followed the Kimble holding in 

relation to a post-decree motion to terminate or modify spousal support in a dissolution 

action. Thomas v. Thomas, 159 Ohio App.3d 761, 2004-Ohio-2928, ¶6-7 (11th Dist.). 

Therefore, a trial court has no continuing authority to alter a spousal-support term in a 

separation agreement unless the parties have specifically agreed at the time of the 

dissolution decree to confer that jurisdiction upon the court. 

{¶22} In this case, the documents attached to relator’s petition demonstrate that 

she and Smith specifically agreed to not confer continuing jurisdiction over the spousal-
 8

support issue to the Portage County domestic relations court. Although the final version 

of their separation agreement contained a handwritten term stating that the court would 

retain jurisdiction over Smith’s support obligation, that term was expressly rescinded in 

the August 4, 2008 agreed judgment entry. According to the judgment entry, relator and 

Smith had agreed to deny the trial court continuing jurisdiction over the spousal-support 

issue. Moreover, the judgment entry was not only signed by both relator and Smith, but 

was also approved by the trial court. 

{¶23} Thus, pursuant to R.C. 3105.18(E)(2), respondent lacks the authority to go 

forward at this time on Smith’s pending motions to modify/suspend his spousal-support 

obligation under the separation agreement; i.e., since there was no express reservation 

of continuing jurisdiction, the requested relief can never be granted. For this reason, if 

respondent presently possesses any authority to proceed in the dissolution action, it is 

limited to the pending motions to vacate under Civ.R. 60(B). Furthermore, respondent’s 

jurisdiction to decide the 60(B) motions will turn upon whether those motions essentially 

seek relief which is distinct from that requested in the motions to modify/suspend. 

{¶24} In order for the movant to be entitled to relief from a final judgment under 

Civ.R. 60(B), he must be able to establish, inter alia, that he can satisfy one of the five 

possible grounds for relief delineated in the rule. Novak v. Novak, 11th Dist. Lake Nos. 

2013-L-047 and 2013-L-063, 2014-Ohio-10, ¶21. The rule states that a court may grant 

relief from a final judgment for any of the following reasons: “(1) mistake, inadvertence, 

surprise or excusable neglect; (2) newly discovered evidence which by due diligence 

could not have been discovered in time to move for a new trial under Rule 59(B); (3) 

fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other 
 9

misconduct of an adverse party; (4) the judgment has been satisfied, released or 

discharged, or a prior judgment upon which it is based has been reversed or otherwise 

vacated, or it is no longer equitable that the judgment should have prospective 

application; and (5) any other reason justifying relief from the judgment.” 

{¶25} Of the five listed reasons, parties who have sought relief from a dissolution 

decree have often tried to invoke the “no longer equitable” clause under 60(B)(4). For 

example, in Knapp v. Knapp, 24 Ohio St.3d 141 (1986), the husband based his request 

for relief from the alimony term of the separation agreement upon 60(B)(4), making two 

arguments in support: (1) he could no longer afford to pay the agreed amount because 

his financial condition had changed; and (2) he did not understand the meaning of the 

alimony term when he signed the separation agreement. In concluding that neither of 

the husband’s arguments stated justifiable reasons for relief from the dissolution decree, 

the Knapp court emphasized that the “no longer equitable” clause was not intended to 

encompass possible changes in circumstances that a party could have envisioned prior 

to executing the separation agreement: 

{¶26} “1. The ‘* * * it is no longer equitable * * *’ clause of Civ.R. 60(B)(4) was 

designed to provide relief to those who have been prospectively subjected to 

circumstances which they had no opportunity to foresee or control. 

{¶27} “2. The ‘* * * it is no longer equitable * * *’ clause of Civ.R. 60(B)(4) will not 

relieve a litigant from the consequences of his voluntary, deliberate choice to enter into 

a separation agreement in a dissolution of marriage proceeding.” Id. at syllabus. 

{¶28} The underlying logic of the Knapp analysis was recently explained by the 

Eighth Appellate District in Harper v. Harper, 8th Dist. Cuyahoga No. 96454, 2011-Ohio-
 10

5276, ¶11: 

{¶29} “We reiterated this holding in Pumper v. Pumper, Cuyahoga App. No. 

93916, 2010-Ohio-4131. Citing Knapp, we noted that, ‘when a party voluntarily enters 

into a separation agreement, the party is bound by the terms of that agreement, even if 

the party’s financial circumstances change.’ Id. at ¶15. ‘Indeed, a change in a person’s 

financial situation is always a possibility; therefore, “it is considered a foreseeable event 

for purposes of Civ.R. 60(B)(4) even if there was no immediate reason to believe the 

change was about to occur when the judgment was issued.”’ Id., quoting Barnes v. 

Barnes, 5th Dist. No. 2003CA00383, 2005-Ohio-544. Consistent with Knapp * * *, we 

concluded that, ‘a party cannot rely on Civ.R. 60(B)(4) to vacate a settlement agreement 

due to a change in finances when the party should have considered such a change in 

negotiating the settlement.’ Id. at ¶20.” 

{¶30} In relation to the “change in financial circumstances” argument, the Third 

Appellate District has essentially extended the Knapp analysis and concluded that such 

an argument cannot form the basis of a viable motion to vacate under Civ.R. 60(B)(5), 

the “catchall” provision. See Jordan v. Jordan, 3rd Dist. Hancock No. 5-05-07, 2005-

Ohio-6028. Similarly, in Crouser v. Crouser, 39 Ohio St.3d 177 (1988), the Supreme 

Court held that a change in the prognosis of the wife’s mental/emotional condition was 

not a viable basis for seeking relief from a spousal-support order under either 60(B)(4) 

or 60(B)(5). 

{¶31} Pursuant to the foregoing precedent, a party to a dissolution proceeding 

cannot seek Civ.R. 60(B) relief from the separation agreement on the grounds that the 

occurrence of new events after the decree has rendered the continuing enforcement of 
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the spousal-support obligation unfair. Hence, if the parties to a separation agreement 

have not afforded the trial court continuing jurisdiction over the spousal-support issue, a 

60(B) motion cannot be employed as a separate means of obtaining the modification of 

the support obligation based upon a change of circumstances. However, this does not 

mean that there are no instances in which a viable 60(B) motion can be asserted as to a 

dissolution decree and the accompanying separation agreement. Additional case law 

establishes that a viable 60(B) motion can be stated when it is predicated upon alleged 

misconduct or mutual mistake that occurred during the negotiation of the agreement. 

{¶32} In In re Whitman, 81 Ohio St.3d 239 (1998), the wife sought Civ.R. 60(B) 

relief regarding the provisions in the separation agreement governing the distribution of 

the marital property. Specifically, she asserted that her decision to sign the agreement 

had been based upon a mistake of fact because the “distribution” terms did not dispose 

of some of the marital assets. Even though the primary focus of the Supreme Court’s 

analysis concerned whether the entire dissolution decree must be vacated as a result of 

a material mistake of fact as to terms of the separation agreement, the opinion contains 

a considerable discussion of the legal underpinnings of dissolution law. Specifically, the 

Whitman court noted that each party to the action must freely consent to the separation 

agreement before the dissolution of the marriage can be granted. Id. at 241. In light of 

this essential requirement, the court then stated: 

{¶33} “But if consent or mutuality did not exist when the parties entered into the 

separation agreement because of fraud or mutual mistake or misrepresentation, then 

there was no agreement upon which the dissolution decree could have been based. 

This lack of mutuality undermines the integrity of the dissolution proceeding and may 
 12

constitute sufficient grounds to set aside the decree under Civ.R. 60(B). In re Murphy

(1983), 10 Ohio App.3d 134, * * *.” Id. at 241-242. 

{¶34} Citing the foregoing language from Whitman, subsequent appellate courts 

have upheld the use of Civ.R. 60(B)(1), (B)(2), and (B)(3) to vacate a dissolution decree 

when the separation agreement was not based upon mutual consent. For example, in 

Nardecchia v. Nardecchia, 155 Ohio App.3dd 40, 2003-Ohio-5410, the wife moved for 

Civ.R. 60(B) relief on the basis that, in negotiating the distribution of the marital assets, 

the parties had mistakenly undervalued the husband’s retirement account. Although the 

trial court denied the wife’s motion, the Second Appellate District reversed that ruling on 

the grounds that the wife satisfied all three requirements for 60(B) relief. Id. at ¶17. As 

to the justification for vacating the separation agreement, the Nardecchia court held that 

incomplete financial disclosure had caused a mistake of fact concerning the retirement 

account which warranted relief under 60(B)(1). Id. at ¶14-17. The court also held that, 

since the separation agreement did not contain a term granting the trial court continuing 

jurisdiction to modify the marital property distribution, the entire dissolution decree had 

to be vacated. Id. at ¶14. 

{¶35} This court has expressly upheld the granting of 60(B) relief in a dissolution 

case when the evidence demonstrated that fraud had occurred during the negotiation of 

various provisions in the separation agreement, including spousal support. In Cefaratti 

v. Cefaratti, 11th Dist. Lake No 2004-L-091, 2005-Ohio-6895, the separation agreement 

was prepared solely by the husband, and he specifically told the wife that there was no 

need for her to hire an attorney to represent her in the dissolution action. The evidence 

further established that the husband’s income was twelve times greater than that of the 
 13

wife, and that he made representations to her regarding the “nonexistence” of spousal 

support. Based upon these facts, this court concluded that there had been fraud in the 

inducement, and that relief from the dissolution decree was justified under 60(B)(3). Id. 

at ¶29-32. 

{¶36} Therefore, under present Ohio law, a Civ.R. 60(B) motion can be brought 

to contest the validity of a party’s consent to the provisions of the separation agreement, 

including the spousal-support term. In addition to a claim of material mistake of fact, the 

60(B) motion can be predicated upon claims of fraud, duress, or undue influence. Id. at 

¶15, quoting DiPietro v. DiPietro, 10 Ohio App.3d 44, 47 (1983). 

{¶37} In this case, the documents attached to relator’s prohibition petition shows 

that Smith filed five separate motions to vacate in January 2013. Three months later, in 

April 2013, he submitted a brief in support of the five motions, in which he raised seven 

basic arguments for review. Of the seven arguments, two clearly assert potential claims 

for relief under Civ.R. 60(B). First, Smith maintained that, during the negotiation of the 

settlement agreement, relator had taken advantage of his unstable mental condition and 

subjected him to duress. Second, he alleged that relator had engaged in fraud by not 

informing him of the extent of her student loans for purposes of calculating the total debt 

he could owe on her behalf. 

{¶38} In these two arguments, Smith is not requesting respondent to modify his 

spousal-support obligation on the basis of events that have occurred subsequent to the 

issuance of the dissolution decree and the August 4, 2008 agreed judgment entry; thus, 

he is not attempting to invoke Civ.R. 60(B)(4) or (B)(5). Instead, Smith is attacking the 

validity of the entire separation agreement through allegations of duress and fraud, as is 
 14

permissible under Civ.R. 60(B)(1) and (B)(3). Given that Smith has raised at least two 

viable claims for 60(B) relief, respondent has the authority to address the substance of 

the two arguments as asserted in the pending motions to vacate. 

{¶39} As to Smith’s remaining five arguments, the copy of his April 2013 brief in 

support, as attached to the prohibition petition, indicates that none of these arguments 

constitute veiled attempts to obtain the modification of the spousal-support obligation. 

Rather, each of the five arguments challenges the propriety of the trial court’s decision 

to issue the final dissolution decree and the August 4, 2008 agreed judgment entry. As 

noted above, under one of his remaining arguments, Smith contends that the trial court 

lacked the necessary jurisdiction to render the decree because relator never submitted 

a “parenting” affidavit, as mandated under R.C. 3127.23. Given that none of the five 

remaining arguments directly pertain to the spousal-support issue, respondent clearly 

has the authority to make an initial determination as to whether each argument states a 

viable reason for vacating either judgment, and then, depending upon the outcome of 

that initial analysis, proceed to address the final merits of each. 

{¶40} In her prohibition petition, relator maintains that respondent should not be 

allowed to go forward on Smith’s motions to vacate because: (1) none of the motions 

were timely filed, as expressly required under Civ.R. 60(B); and (2) Smith is attempting 

to use the motions as a substitute for a timely direct appeal from the dissolution decree 

or the agreed judgment entry. However, while each of these two points may constitute 

a viable counter-argument to the motions to vacate, neither of the points is relevant to 

the issue of respondent’s jurisdiction to determine the merits of those motions. Thus, by 

raising these points, relator is essentially using this original action as a separate means 
 15

for contesting the merits of the motions. Such a use is not permissible, since an action 

in prohibition can only be employed to challenge the jurisdiction of a lower court. See 

State ex rel. Kister-Welty v. Hague, 160 Ohio App.3d 486, 2005-Ohio-1788, ¶14, 17. 

{¶41} “As a general proposition, * * * a prohibition claim can be subject to 

dismissal under Civ.R. 12(B)(6) when the nature of the relator’s allegations are such 

that, even if the allegations are presumed true and interpreted in a manner most 

favorable to [her], it would still be beyond doubt that [she] will not be able to prove a set 

of facts entitling [her] to the writ.” State ex rel. Feathers v. Gansheimer, 11th Dist. 

Ashtabula No. 2006-A-2858, 2007-Ohio-2858, ¶6. Under this standard, a relator will be 

permitted to go forward on her prohibition claim only when her allegations are sufficient 

to satisfy the three required elements for the writ: (1) respondent intends to exercise his 

judicial authority in the underlying case; (2) the proposed use of judicial power is beyond 

the scope of respondent’s jurisdiction; and (3) if the writ is not granted, the relator will be 

subject to damages for which there is no adequate remedy at law. Kister-Welty, at ¶24, 

citing State ex rel. Barclays Bank PLC v. Ct of Common Pleas of Hamilton Cty., 74 Ohio 

St.3d 536, 540 (1995). 

{¶42} Pursuant to the foregoing discussion, this court concludes that relator will 

never be able to prove a set of facts under which the second element for a prohibition 

claim will be satisfied. Even though respondent does not have any authority to suspend 

or modify Smith’s spousal-support obligation while the separation agreement remains in 

effect, he does have the jurisdiction to issue judgments on Smith’s pending motions to 

vacate under Civ.R. 60(B). This authority to proceed exists notwithstanding the fact that 

the Portage County domestic relations court did not retain continuing jurisdiction over 
 16

the issues of spousal support and property distribution. Accordingly, since relator’s own 

factual allegations are legally insufficient to establish a complete lack of jurisdiction to 

go forward in the underlying dissolution action, she has failed to state a viable claim for 

a writ of prohibition. 

{¶43} Respondent’s motion to dismiss the prohibition petition is granted. It is the 

judgment and order of this court that relator’s entire prohibition petition is dismissed in 

its entirety. It is further ordered that Nathan M. Smith’s motion to intervene in this action 

is overruled as moot. 

TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, 

J., concur.