# In the Missouri Court of Appeals

**Eastern District**

DIVISION ONE

DANIEL PHILLIPS, ) No. ED103232

VIVIAN L. EVELOFF, )

JULIA KING MULLER, and )

EARL K. SHRECKENGAST, )

)

Appellants

, )

)

and )

)

JILL L. MEDINTZ, )

)

Plaintiff, ) Appeal from the Circuit Court

) of St. Louis County

) 14SL

- CC03784

vs. )

)

CITY OF CLAYTON

, MISSOURI, ) Honorable Thomas J. Prebil

JUNE FRAZIER, in her capacity as )

CITY CLERK, )

W ORP/CA CLAYTON LLC, )

and THE CROSSING IN CLAYTON )

REDEVELOPMENT CORPORATION, )

)

Respondents

. ) FILED: December 22 , 2015

OPINION

Daniel Phillips, Vivian L. Eveloff, Julia King Muller, and Earl K. Schreckengast

(collectively “Residents”) a p peal from the trial court’ s grant of summary judgment in favor of

the City of Clayton, Missouri, and June Frazier (collectively “City”) holding that Ordinance Nos.

6339, 6340, and 6341 are not subject to referendum under the City of Clayton’s Charter and t hat2 Residents have not established that they are entitled to the issuance of a writ of mandamus under

the City Charter. We affirm.

Factual and Procedural Background

In 2010, Cl a y t o n ’s b oard of alder m en, 1 pur s uant to Chapter 89, RSMo 2000

, adopt e d

the “Do wnto w n Cl a y t on Master Plan U pdate and Ret a il S t rate g y ” (“Master P lan”), 2 which

sought t o “ [ e]ncoura g e residenti a l gro w th within wa l king d i stan c e of the Cl a y ton a n d F o r s y t h

Met r oLink Stati o ns

. ”

In 2014, GTE Pr o perties, LLC ( “GTE”) s ought to bu i ld a 2 6

- s to r y

, $72,000, 0 00

re s idential apar t m e nt t o wer (“T o we r ”) a t t he sout h east c orner of Bonh o m m e and M e ramec

Av e nues located wi th in an area where the Mas t er Pl a n cal l ed f or an i ncrease in h igh

densi t y r esident i al de v elo p m ent.

On Ju l y 2 2, 2 014, the board of alde r m e n held a public hearing on Bill No. 6454

. This

bill found that the designated area where GTE intended to construct the Tower was “ bligh t ed, ”

approved a develo p m e n t pl a n f or the r ede v elo p m e nt of the pro p er t y

, and a ut h orized C i t y

s ta f f to negotiate a dev el op m e nt agre e m ent with GT E. The deve l o p m ent plan also inclu d ed a

tax i m pact stat e m e nt that expre s s l y p rovided “ [ r]eal proper t y t a x abat e ment will be granted

pursu a nt to a d evelo p ment a g re e m ent be t ween t he Ci t y a nd the Deve l ope r. ” At this h e aring,

l et ter s were received in su p port of t h e project and the proposed t ax aba t e m e nt f r o m various

groups and, on the same day, t he board of alde r m en p a ssed B ill No. 6454 , which b ec a m e

Ordi n ance No. 6 328.

On Sept e m b er 9, 201 4

, the boa r d of alder m en held publ i c heari n g s on Bill N o s. 64 6 5

1 Unless otherwise indicated, all further st atutory references are to RSMo 2000 as amended.

2 Cl a y t o n ’s board of alde r m en con s ists of six alde r m en and a m a y o r all of whom have equal

voting power

.3 and 6 4 66 which were prop o sal s to r ezone the prope r t y up o n wh i ch the T o wer wo u ld be

construct ed as well as the proposed devel op m ent plan f or the Tower. In addition, Bill No.

64 6 7 was on the agenda as a “R e port f r o m the Ci t y M a nage r .” B ill No. 6467 w as intended to

a p prove a develo p ment a gre e ment between the Ci t y a n d GTE to redeve l op the subject prope r t y.

The d evelo p ment agre e m ent pro v ided t h at the developer would m a ke p a y men t s in lieu of taxes

( “PILOTS”) based on 50% of the assess e d val u ation of the p r oper t y f or the f irst ten y ea r s, and

p a y ments b ased on 5 0 % of the f air m arket v a lue f or the f ollo w ing t e n y e ars.

At the conclusion of the hearing on the sub j e c t m atter conta i ned in the aforementioned

bills and a fter a lengt h y pu b lic c o m m e nt period , one of the aldermen made a m oti o n to table

the Bills . The m otion passed. N o ne of the alde r m en i ntroduc e d an y of the b ills at the

Sept e m ber 9, 20 1 4 meeting and n one of the b ills were on the ag e nda f or a f irst r e a d ing. The

b ills were then re f er red back to the Ci t y Plan C o mmis s ion to consider r e visi o ns to the Tower

plan. O n Sept e m ber 1 5, 2014

, t he P lan C o m m is s ion voted to rec o m m end a pproval of the

rezoning and the Planned Unit Deve l o p m ent with revisions

.

O n S e pt e m b er 2 3

, 2 0 14, t he boa r d of alde r men held their final hearing. T h e b i l ls

appeared on the agen d a under “Un f inished Business

. ” A f ter he a ring c o mments f r o m the

public, Alderman Harris intr o duced Bill No. 6 4 65 (relating to rezoning) a nd Alderman Harris

moved that the b i ll be read f or the f irst time b y t i tle on l y

. T h e m ot i on p a ssed unan i mous l y and

the bill w a s read f or the f irst ti m e. The mayor moved that the boa r d of alder m e n appr o ve

considera t i o n of Bill No. 64 6 5 f or f inal pa s sage at that m eeting. That m otion w a s seco n ded

and approv e d u na n imous l y

. Bi l l No. 6465 was then read f or the second t i m e and was pa s sed

u nan i m ous l y b y the b o ard of alder m en, and bec a m e Ord i nance N o. 633 9

.

A f ter passage of Bill No. 646 5

, B i ll No. 6466 (relating to the development plan) was4 introduced a n d Alderman Harris m o ved that the b i ll be read f or the f irst t i m e b y title o n l y

. The

m o tion p a ssed unan i m ou s l y a nd the b i ll was read f or the f irst time. The m a y or moved that the

board of alde r m en approve consid e ration of Bill No. 6466 f or f inal passage at that

eveni n g ’s m e eting. That m o tion w a s seconded a n d appro v ed unan i m o u s l y

. Bill No. 6466 was

then read f or the s econd t i me and was p a ssed un a n i m ou s l y b y the board of alde r m e n, and

bec a m e Ordinan c e No. 634 0

.

Final l y

, Alderman Harris intro d uced Bill N o. 6467 and m o v e d that t he bill be read f or

the f irst ti m e b y ti t le on l y

. T h e m otion pa s sed unan i m o us l y a n d the b ill was read f or the

f

irst t i m e

. Again, the m a y or moved t hat t h e board of alde r m e n approve co n siderat i o n of Bill

No. 6467 f or f inal passage a t that ev e nin g ’s m ee t ing. That m otion was s econded and approv e d

unan i m o u s l y

. Bill No. 6467 was then read f or a second t i m e

. The bi l l was passed b y the b o ard

of alder m e n b y a vote of six to one

, and the bill be ca me Ordinance No. 6 3 41.

Residents su b mitted to June Fra zier ( “Frazie r ”), Ci t y Clerk f o r Cl a y t on, three

re f erend u m peti t ions request i ng t h at Ordinance Nos. 633 9

, 6340, and 6 341 either be repe a led

or su b m itted t o a vote o f the Ci t y’s electors. Frazier in f o r m ed Residents and t h e boa r d of

alde r m en t h at the petiti ons were not suf f

icient because the Ordinances were n o t subject to

re f erendum u nder the City’s charter.

Thereafter, Residents f iled their petition seeking a writ of m an d a m us to c o mp el Fra z ier

to ce r ti f y t h e re f erend u m p e titions as suf f

icient, and to c o mp el the Ci t y t o either re p eal the

Ordinances or s u b m it th e m to a vote of the Ci t y ’ s electo r s. Residents a l so sought a

declara t o r y j ud g m ent that the Ordinances were s u bj e ct to re f erendum under the Ci t y ’s charter.

The developer, W O RP/ C A Cl a y t on, LL C and T h e Cro s sing in Cl a yton Red e velo p m e nt

Corporati on (collectively “Intervenors”) w e re granted leave t o inte r vene in the la w suit.5 All parties filed cross

- motions for summary judgm ent. A hearing was held on the

cross

- motion s on June 9, 2015. On June 17, 2015

, the trial c ourt granted the City’ s motion

for summary judgment, holding that the three ordinances “ are not subject to

r eferendum under Article XII, [Section] 2 of City’ s charter, or any other provision of

City’ s charter” and that “Residents have not esta blished that they are entitled to the

issuance of a writ of mandamus under the provisions of City’ s charter.” Residents’

motion for summary judgment was denie d, and Intervenors’ motion for summary

judgment was dismissed as moot. Residents now appeal

.

S tandard of Review

Our review of the summary judgment is essentially de novo. ITT Commercial Fin. Corp.

v. Mid

- Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Accordingly, we need

not defer t o the trial court’ s order granting summary judgme nt. ITT Commercial Fin ., 854

S.W.2d at 376. We “ review the record in the light most favorable to the party against whom

judgment was entered.” Id

. We “accord the non

- movant the benefit of all reasonable inferences

from the record.” Id

. However, fact s contained in affidavits or otherwise in support of the

party's motion are accepted as true unless contradicted by the non

- moving party's response to the

summary judgment motion. Id

. Summary judgment is only proper if the moving party

establishes that t here is no genuine issue as to the material facts and that the movant is entitled to

judgment as a matter of law. Id

.

Passage of Ordinances

In Point I, Residents argue that the trial court erred in granting summary judgment in

favor of the City on the gr ound that the Ordin a nces w ere not subj e ct to re f erendum because t he y6 were not p a ssed o n the d a y of their intr o ducti o n as provided in Article II, Section 8 of the City

Charter. We disagree.

Article XII (Initiative, Referendum, and Recall), Section 2 (Refer endum) of the City

C harter p r ov i des that:

The elec t ors s hall ha ve power to appro v e or rej e ct at the po l ls a n y

ordinance pas s ed b y t h e board of alder m e n , or su b m itted b y the b o a rd to a vote

of the electors, e x cept the f ollowing: ordinances pass e d on the day of their

intro d uction as provided in the sec o nd paragraph of Sect i on 8 of Article II of this

charte r

, ordinances le v y i ng taxes, and ordinanc e s f or the issuance of special t ax

bills. Such power shall be known a s the re f er e nd u m

.

Residents cont end t h a t the Ordinanc e s we r e not pas s ed on t h e d a y of the i r introducti o n becau s e

t h e y were o n the ag e n d a f or the Sept e m ber 9, 2014

, m ee t ing of the board of alde r m e n

, t here

w a s “len g t h y considerati on ” of the b ills at t his meeting and that , at t h e conc l usi o n of the

meeting and p ublic hearing o n Sept e m ber 9 , 2014, a m ot i on w a s made to table the b ills.

Residents argue that the Ordinanc e s w e re therefore “ introduce d ” on S e p tember 9 , 2014, and

passed on Sept e mber 2 3

, 2014, and thus not e xe m p ted f rom r e f erend u m

.

Our review of t he m inutes from t he Sept e m ber 9 , 2014, and Se p tember 23 , 2014,

m eetings reveal, contrary to Residents’ contentions, that the b i l ls were not introd u ced until

Sept e m ber 2 3 , 2014

. 3

3 Section 105.170 of the M unic i pal Code of the Ci t y of Cl a y ton sets f orth a ve r y spec if ic

procedure f or the i ntroduction of bills and provides as follows :

A. A n y m e m ber of the Board m a y intro du ce a bill b y se c uri n g recognition

f r o m the Chai r m an a n d stating that he/she desi r es t o introduce Bill

No.

______. If copies of the bill have no t previous l y been su pp li ed to

m e m bers, each member sh a ll be given a co p y at the t i me the bi l l is

int r oduced. The bill shall b e read in f ull if two (2) m e mbers of the Board

so r equest.

B. The m e mber introdu ci ng a bill m a y m ove th a t the bill be considered f or

possible a men d men ts and be p l aced on the calend a r f or considera t i o n on

f

inal passage at t he next m e eting of the Board, wi t h the exception of

a m en dments in sub s tance as provided in Secti o n 8, Article II of the7 On Sept e mber 9, 2014, t h e board of alder m en conduct ed the sta tutori l y requir e d pub li c

hearing to a mend i t s zoning ordinan c es , which included a pre s entation b y t he deve lo pers and

an o pportun it y f or the boa r d m e m b ers t o ask que s tions a b out the Towe r

. T h e public was also

given opportunity to comment on the Towe r plans

. T here was no discussion abo u t the m erits

of the b ill s or any indication that a bill was being formally “introduced” at the Sep t ember 9,

2014, m eeting . At the conclusion of the public hearing, at which various concerns and questions

were raised, the is s ue of the proposed T ower was re f erred back to the Ci t y Plan C o m m i ssio n

.

On September 23, 2014, the board of aldermen reconvened. T he m in u tes of this m eet i ng

indicate th a t one of the aldermen secured recog n ition f rom t he chair to in t ro d uce each of the

bil ls and that the m a y o r m o ved that each of the b ills be con s ider e d f or f inal passage o n the d a y

of their introducti o n. For each bill, the board of alder m en un a n i m ous l y agre e d to pr o ceed with

the vote f or f inal passage on the d a y of the particular bill’s in t r oduction. As t he bo a rd of

alde r m en c o mplied wi t h the appli c able st a tut e s and m u n icipal o r din a nces, t he trial court

p r oper l y dete r m ined that the O r dinances were int r od u ced and p assed o n Se p tember 23 , 2014,

and were there f ore excluded f r om r e f erend u m under A rticle XII, Section 2 of the City C harter.

Moreover, t he trial co u rt prope rl y dete r m in e d that Or dinance No. 6341 is not subject to

re f erendum u n der the City C harter bec a use i t was passed on the d a y of i ts introduct i on b y the

a ff ir m ative v ot e of all m e mb ers of t he board of alde r m e n

. Article XII, Section 2 of

Cl a y ton’s c h arter ex e mp ts f rom re f erend u m “ o rdinanc e s passed on the d a y of their introducti o n

as p r ovid e d in the s econd paragr a ph of Section 8 of Article II of this char t e r

... .” P arag r aph 2 of

Section 8 of Article II of the City C harter p rovides:

All bills s hall be c alled up f or considerati o n a t least twic e

, and at le a st one

Charter, or he/she m a y m o ve that the bill be considered f or f ina l pa s sage

i m m e d iate l y

.8 week shall elapse b e t w een the t i m e a bill is in t roduced and its f inal p a ssage,

e x cept that bills may be pa s sed on t he d ay of the ir intr o ducti o n by the

affi r m ative vote of all m e mbers o f the b oard w ho are present.

Residents read the City Charter to requir e a unan i m ous v ote f or f inal passage rather than a

unan i m ou s vote on a motion to consider a bill f or f in a l passage on the d a y o f introduction . We

are not persuaded by this interpretation.

A review of t he m i n utes from the Sept e m ber 23, 2 0 14 , meeting re f lect that the m a y or

m oved that Bill No. 6467 (later Ordinance No. 6341) b e consi d ered f or f inal passage at this

meeting and that t hat motion p assed un a n i m ou s l y

. The minut e s f urther re f lect that, on the

question of f inal passage of Bill No. 64 67, Alderman Harris voted “n a y ,” wh i le all other

alde r m en v oted “a y e

. ” T he refore, the vote on the m o t ion to consider Bill No. 6467 f or f inal

p assage on the day of its introduction was unanimous, while the vote for final passage was not.

Read in context, the unan i m i t y re q uir e m e n t pe r m it s o ne m e mber of the board to delay

co n siderati o n of a bill f or passa g e f or o n e week

, not as Residents argue, p e r m it one m e mber of

the board to de f eat a bill outright

. The City Charter’s provisions specifying the method of

tabulating the necessary votes for final passage of a bill confirms that it is unanimity for

immediate consideration of passage, rather than una nimity in the vote on passage, that is

required. Section 6 of Article II of the City Charter provides, “[t]he affirmative vote of a

majority of the members of the board shall be necessary to adopt any ordinance, resolution or

motion.” [Emphasis added.] S ection 8 of Arti cle II simply modifies the procedure for adoption

of a bill on the date of its introduction. All present members of the board of aldermen must agree

to proceed with the vote for a final passage on the day of the bill’s introduction. Other wise, it is

necessary to wait at least one week. Section 8 of Article II does not change the threshold of

votes necessary for passage. The trial court proper l y dete r m i n ed t hat Ord i nance No. 6 341 is not9 subject to re f erend u m u n der the City C harter bec a use all m e m be r s of the board of alde r men

agr e ed to p r oceed with a vote f or f inal passage o n the d a y of Bill No. 6 46 7 ’s int r oductio n

, and

then pass e d the b ill into law b y a v o te of six to one.

Finally, t he trial c o urt pro p er l y d ete r m in e d that Ord i nance No. 6 3 41 is not subject to t he

re f erendum un d er the City C harter because it levies a tax. Article XII, Section 2 of the City

C harter ex e mpts f rom re f erendum “ ordinan ce s le v y ing t a xe s ....” Residents argue that

Ordin a nce N o. 6341 d id not le v y t a xes, but r a ther ab a ted t axes, and i s there f ore not subject to

r e f erendum. “T h e w o rd ‘le v y ’ is ‘t h e f orm a l and o ff icial action o f a legislati v e bo d y

invested w i th the p o w er of taxation dete r m i ning and d e claring t h a t a tax of a certain

amount or of a certain percentage o n valu e shall be i mposed o n p ersons and proper t y

subject t o the tax

. ’” A d a m s v. Frig a nz a

, 3 44 S

. W .3d 240, 250 ( M o. App. E.D. 2011 )

(quoting 84 C.J.S. Taxation Section 462 (2011) )

. Here, as Friganza suggests, the term

“ordinance le v y i ng t axe s ” in the City Charte r enc o m p a sses t he entire process of dete r m ining

appropria t e levels of taxation of prop e r t y , not simply the narrow act of imposing taxes

.

A r ticle I V of the d e velo p m e nt agre e m ent provi d es t h at the develop e r will m a ke

p a y m e nts in l i eu of taxes ( “PILOTS ” ) ba sed on 5 0 % of the a ssessed va l uation o f the proper t y

f

or t he f irst ten y ear s

, and p a y men t s based o n 50% of the fair m arket value f or the f ollowing ten

y e ar s

. Article IV of the develop m ent agre e m ent, negotia t ed b y the d e veloper and Cl a y ton,

dete r m i n es t h e rate at which the proper t y w ill be taxed. Ordinance N o. 6341 , which approved

the development agreement, is an exercise o f the ci t y ’s p ower to impose and f ix the a m o unt of

taxes on the Towe r

. There f ore, Ordin a nce No. 6341 levies taxes and is not subject t o

re f erend u m under the City C harter. Point I is denied.10 Ordinance No. 6341

In Point II, Residents argue that the trial court erred in granting summary judgment in

favor of the City because Ordinance No. 6341 is legislative, as opposed to administrative in

nature, and is therefore subject to referendum under Missouri law. We disagree.

“ It is the general rule that initiative and referendum are applicable only to ordinances

which are legislative in character and not applicable to those dealing with admini strative matters.

Anderson v. Smith , 377 S.W.2d 554, 557 (Mo. App. 1964); Carson v. Oxenhandler , 334 S.W.2d

394, 399 (Mo. App. 1960). Legislative acts are said to be permanent and general and presenting

a new policy or plan. State ex rel. Whittington v. Strahm , 374 S.W.2d 127, 130 (Mo. banc

1963); Anderson, supra , at 558. Those subjects temporary or special in nature or that merely

pursue on existing plan are deemed administrative. Whittington , supra, at 130 and Anderson

,

supra, at 558. ” State ex rel

. Hic k m an v. C it y Co u ncil of Kirksvill e

, 690 S

. W .2d 799, 8 02

(Mo. App. W .D. 1985)

.

Here, contrary to Residents’ contention, Ordinance No. 6 3 41 i s a d m ini s trative as its

purpose is to e ff ectuate the l e gislative poli c y est a blished b y O rdinance N o. 63 28

, whic h was

approved by Cl a y t o n ’s board of alde r m en on Ju l y 22, 2 0 14. Ordin a nce No. 6328 declar e d that

the proper t y on which t h e Tower wou l d be construc t ed was bli g hted, app r oved a dev e lo p m ent

p lan which included tax a bat e m e nt

, and authoriz e d Ci t y s taff to nego tiate a dev e lo p m ent

agr ee m en t

. The dete r m inat i o n s s e t f orth in Ordinance No. 6328 that the pro p e r t y u p on which

the Tower w o uld b e con s t r ucted was blig h ted, t h a t its re d evelo p ment wa s in the best intere s t of

the Ci t y

, and that a grant of tax a bat e ment was n ecessa r y to achieve that end, are

legislative ac t s declar i ng the poli c y of the C it y

. See BHA Gr o up Ho l ding, Inc. v. Pendergast

,

173 S

. W. 3 d 373, 376 (Mo. App. W

. D. 200 5 ) ( d ete r m i n ation of blight , as contained in Urban11 Redevelopment Corporations Law of Cha pter 353, is a po l i c y decis i on w i th r oots in the

Missou r i Constitut i on and, t here f ore , is legislat i ve in nature).

Residents’ main argument is t h at O rdinance N o. 63 4 1 is legislative , not administrative,

and t h ere f ore subject to re f erendu m because Ordi n anc e No. 6 328 expre s s l y reserved a decision

on t ax abat e m e nt until Or d inance No. 634 1

. There f ore, they contend, Ordinance No. 6341 wa s

legisla t ive to the extent i t , rather than Ordinance No. 6328, au t hor i zed tax abat e m e nt. We find

this argument meritless.

As stated above, Ordinance No. 63 28 ap p roved a develo p ment plan f or the p r oper t y

upon which the To w er wou l d be construct e d

. The devel op m ent plan express l y s tates “ [ r]eal

proper t y tax a bat e m ent w ill be granted pursuant to a de v elo p m ent a g re e m e n t between t h e Ci t y

and t he Devel o per

. ” T he board of alde r m e n did not reserve a d e cis i on on t ax ab a t e m ent. T he

board clear l y stated its intent to grant tax abat e m ent in Or d ina n ce No. 6 328. Pub l ic c omment

was rec e ived on the topic of tax abat e m ent at the m eet i ng on Ju l y 2 2

, 2014. O rdi n ance No.

63 2 8 set the Ci t y ’s poli c y of using tax abat e m e n t to incentivize develo pm ent in this area

,

as clearly articulat ed by the Master P l an. Because Ordinance N o. 6341 approved a c o ntract

with the de v eloper to ef f

ectuate the Ci t y ’ s previous l y adopted pol i cies, it is ad m inist r ati v e and

there f ore not s ub j ect to re f erend u m . Point II is denied.

Laches

In Point III, Residents argue that the trial court erred in granting summary judgment in

favor of the City “to the extent that” its deci sion was based on Intervenors’ laches argument. We

disagree.

Here, t he laches arg u ment a s serted b y I n t ervenors did n ot f o r m the b a sis of the trial

court’s j ud g m e n t as Int e r v enors ’ motion f or s u m m a r y ju dg m ent was di s m issed as m oot. In its12 judgment, the t rial court stated the following as the basis for its decision: “ [t]he Court f inds and

declares that Cl a y t o n O rdinance Nos. 6 3 39, 6340, 6341 a r e not su b ject to re f erend u m un d er

Article XII, [ Section] 2 of Ci t y ’s charter or a n y other provisi o n of Ci t y ’s char ter

. ” Nowhere

does the trial court m ent i on the re f erendum being unavailable because o f laches. In fact, as

Residents themselves admit, t he Ci t y did not specify laches at all i n its moti o n f or s u m m a r y

jud g m e nt. “ W here a tr i al court has g rant e d s u m m a r y j u d g m ent w i t hout speci f y i ng the ba s is

upon which t he m ot i o n was grante d

, this court will a ff irm the grant of sum m a r y ju dg ment under

a n y appro p r i ate theo r y

. Furth e r, a trial court’s order is p res u m ed to have bas e d its decision

on the grounds speci f ied in res ponden t s’ m ot i on i f the trial cour t ’s o r d er does not set f orth

its reason i ng

. ” C e nt. Missouri Elec. C o

- op. v. Balk e

, 119 S

. W .3d 627, 635 (Mo. App. W

. D.

2003 ). Here, t he t rial court spe c i f ied the basis f or its ruling and, furthermore, t h e laches

arg u m ent i s not p r oper l y b e f ore this c our t

. Point III is denied.

Conclusion

The judgment is affirmed.

____________________________

Robert G. Dowd, Jr., Presiding Judge and Kurt S. Odenwald, Judge, concur.