George E. Trim v. Lisa Mosley Trim ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CT-01648-SCT
GEORGE E. TRIM
v.
LISA MOSLEY TRIM
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/24/2007
TRIAL JUDGE: HON. J. DEWAYNE THOMAS
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WILLIAM LEE COLBERT, JR.
ATTORNEYS FOR APPELLEE: KIMBERLY PINE TURNER
RANDALL HARRIS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE
JUDGMENT OF THE CHANCERY COURT
OF HINDS COUNTY IS REINSTATED AND
AFFIRMED - 04/29/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. George E. Trim and Lisa Mosley Trim obtained an irreconcilable-differences divorce
by order of the Chancery Court for the First Judicial District of Hinds County on June 14,
2000. Lisa was not represented by counsel in the divorce proceeding, and neither party
propounded discovery beyond the mandatory Uniform Chancery Court Rule 8.05 financial
disclosure statements. On November 19, 2004, Lisa filed a “Petition to Set Aside the Final
Judgment of Divorce and/or Property Settlement Agreement on the Allegation of Fraud.”
In the petition, Lisa asserted that George fraudulently had misrepresented the value of his
corporate stock, a marital asset, to be $100,000 in his Rule 8.05 financial disclosure
statement. The chancellor granted the petition, finding that the elements of fraud were met
by clear and convincing evidence and that the actual value of the corporate stock at the time
of the divorce had been $694,000. Subtracting the $100,000 that had been equitably
distributed in the divorce judgment, the chancellor awarded Lisa twenty-five percent of
$594,000 under Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), plus attorneys’ fees
and costs. George appealed, arguing that Lisa’s petition had been untimely filed under
Mississippi Rule of Civil Procedure 60(b) and that the chancellor erroneously had found
clear and convincing evidence of the elements of fraud. This Court assigned the case to the
Court of Appeals.
¶2. A divided Court of Appeals reversed and rendered, finding that Lisa’s petition had
been untimely filed under Mississippi Rule of Civil Procedure 60(b). Trim v. Trim, 2009
WL 1058630, at *5 (Miss. Ct. App. Apr. 21, 2009). The Court of Appeals held that the
chancellor erroneously had deemed the petition timely under the catch-all provision in Rule
60(b)(6), under which a motion for relief from a final judgment shall be made within a
reasonable time. The Court of Appeals determined that because Lisa’s petition alleged fraud,
Rule 60(b)(1) applied and that the petition was untimely under that rule’s six-month deadline.
Having so found, the Court of Appeals declined to reach the merits of the fraud issue. After
the Court of Appeals denied Lisa’s motion for rehearing, Lisa filed a petition for writ of
certiorari, which this Court granted. Lisa raises two issues for decision on certiorari: (1)
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whether the decision rendered by the Court of Appeals conflicts with prior Court of Appeals
decisions and with decisions of this Court, and (2) whether this case involves fundamental
issues of broad public importance requiring our review.
¶3. This Court is confronted with a finding by the chancery court that a party to divorce
litigation intentionally submitted a substantially false Rule 8.05 financial disclosure
statement. The chancellor determined that this misconduct constituted fraud on an adverse
party. We take this opportunity to hold that a party’s intentional filing of a substantially false
Rule 8.05 financial disclosure statement constitutes a fraud on the court, for which there is
no limitation of time restricting the court from affording a remedy. Miss. R. Civ. P. 60(b).
Therefore, it was within the chancellor’s authority to modify the final judgment of divorce.
The judgment of the Court of Appeals is reversed, and the judgment of the Chancery Court
of Hinds County is reinstated and affirmed.
FACTS
¶4. The Court of Appeals provided a thorough recitation of the facts, which we restate:
On November 16, 1990, George and Lisa were married in Hinds
County, Mississippi. No children were born to the marriage. Over the course
of their marriage, Lisa worked as a sales representative for the Berry Company
selling yellow page advertisements, and George was self-employed in a
computer networking and cabling business, Business Communications, Inc.,
(BCI). In 1993, George and Tony Bailey (Bailey) partnered to form (BCI),
which is a closely-held subchapter S for profit corporation. Bailey owned
fifty-one percent of the stock, with George owning a minority share of
forty-nine percent.
George and Lisa continued to live as husband and wife until their
separation in September 1999. Around the time of their separation, George
and Lisa discussed their financial status. George thought that the value of his
stock in BCI was worth $100,000, and Lisa owned a retirement account valued
at $120,000. The equity in George and Lisa's home was $30,000. George
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proposed that Lisa keep her retirement account; he keep his BCI stock and
their home; and he pay Lisa $5,000 to make up the difference. In essence, the
couple divided their marital assets equally. After this, on September 24, 1999,
Lisa signed a property settlement agreement reflecting the couple's decision.
George and Lisa did not file for divorce until seven months later. On
April 10, 2000, George and Lisa filed a Joint Complaint and Consent to
Divorce based on irreconcilable differences. They also attached the above
property settlement agreement to their complaint. Pursuant to Uniform
Chancery Court Rule 8.05 (hereinafter 8.05), each party submitted a financial
statement of their assets and liabilities to the court. In his 8.05 statement,
George again listed the value of his BCI stock at $100,000. On June 14, 2000,
the Hinds County Chancery Court entered a final judgment granting a divorce
to George and Lisa and ratified the property settlement agreement attached in
the divorce complaint.
Following the divorce, in 2001, the business relationship between
George and Bailey began to deteriorate. In July 2001, at a board of directors'
meeting, Bailey and a third director voted to fire George as president of the
company and reduce his management responsibilities and salary. As a result
of being “squeezed out” of the company, George filed suit against Bailey and
BCI alleging breach of fiduciary duty and wrongful breach of minority rights.
He sought to have the company dissolved. Pursuant to statutory requirements,
the Madison County Chancery Court held a hearing to determine the value of
George's BCI stock, and the court determined that the better result, rather than
to dissolve the company, was to have BCI pay George for his stock and for
George to relinquish any rights in BCI. The stock valuations presented in that
hearing spurred the present litigation between Lisa and George.
During the litigation between George and Bailey, each party presented
expert testimony to determine the value of George's stock, and the chancellor
adopted George's expert's finding that the stock was worth $1,186,000 as of
August 14, 2001. During the Trim v. Bailey litigation, the chancellor
expressed dissatisfaction with the determined values because of the disparity
of findings between the parties' experts. However, due to the parties'
unwillingness to hire a third expert, he felt bound to choose one of the
amounts, so he chose the higher value. It is clear that difficulty existed in
placing a definitive monetary value on the stock. Rather, determinations were
based on numerous factors that were not easily discernible and resulted in
vastly different valuations.
Lisa waited until November 19, 2004, to file suit against George
claiming that he had fraudulently misrepresented the value of his stock when
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they were discussing their property settlement agreement over five years
earlier in September 1999.[1 ] In the Trim v. Trim litigation, Lisa hired a third
expert, which presented yet another opinion concerning the value of George's
stock. Lisa's expert valued George's stock at $694,000 at the time of George
and Lisa's divorce. The chancellor accepted this opinion and awarded Lisa
25% of this amount [less the $100,000 that had already been subjected to
equitable distribution in the divorce judgment]. In other words, Lisa received
an additional $148,000 plus attorneys' fees and costs. The judgment from that
litigation is now the subject of this appeal.
Trim, 2009 WL 1058630, at *1-2 (footnotes omitted).
STANDARD OF REVIEW
¶5. This Court reviews judgments in domestic relations cases under the familiar
“substantial evidence/manifest error” rule. Evans v. Evans, 994 So. 2d 765, 768 (Miss.
2008). We will not disturb the chancellor’s findings unless those findings were manifestly
wrong, clearly erroneous, or the chancellor applied an incorrect legal standard. Id.
ANALYSIS
¶6. On certiorari, Lisa argues that the Court of Appeals’ reversal of the chancellor’s
modification of the final judgment of divorce conflicted with its prior decisions and that this
case involves broad issues of public importance. This case requires the Court to determine
whether the chancellor had authority to modify a final judgment of divorce upon a finding
that one party fraudulently had misrepresented the value of an asset in the party’s Uniform
Chancery Court Rule 8.05 financial disclosure statement. Mississippi Rule of Civil
Procedure 60 provides, in part:
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After Lisa learned of the higher stock valuation in 2002, she sought representation
from two successive attorneys who failed to take any action in the case; she finally retained
a third attorney who filed the instant lawsuit on November 19, 2004.
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(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On
motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding for the
following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse
party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b);
(4) the judgment is void;
(5) 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;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2)
and (3) not more than six months after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision does not affect the finality
of a judgment or suspend its operation. Leave to make the motion need not be
obtained from the appellate court unless the record has been transmitted to the
appellate court and the action remains pending therein. This rule does not limit
the power of a court to entertain an independent action to relieve a party from
a judgment, order, or proceeding, or to set aside a judgment for fraud upon
the court. Writs of coram nobis, coram vobis, audita querela, and bills of
review and bills in the nature of a bill of review, are abolished. The procedure
for obtaining any relief from a judgment shall be by motion as prescribed in
these rules or by an independent action and not otherwise.
Miss. R. Civ. P. 60(b) (emphasis added).
¶7. The decision to modify a prior order under Rule 60(b) is a matter within the trial
court’s sound discretion. Accredited Sur. and Cas. Co. v. Bolles, 535 So. 2d 56, 58 (Miss.
1988). The first five enumerated clauses of Rule 60(b) allow modification of a final
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judgment in the specific listed circumstances. Miss. R. Civ. P. 60(b)(1-5). Rule 60(b)(6)
provides a “catch-all” provision under which relief may be granted in exceptional and
compelling circumstances, such as for fraud upon the court. Miss. R. Civ. P. 60(b); Tirouda
v. State, 919 So. 2d 211, 214 (Miss. Ct. App. 2005). While a Rule 60(b)(6) motion must be
brought within a reasonable time, a motion made under the first three enumerated clauses
must be brought within six months of the entry of the final judgment. Miss. R. Civ. P. 60(b).
This Court has held that use of Rule 60(b)(6) must be based on some reason other than those
listed in the first five enumerated clauses of the rule. Am. States Ins. Co. v. Rogillio, 10 So.
3d 463, 474 (Miss. 2009).
A. The chancellor’s decision
¶8. The chancellor determined that George fraudulently had misrepresented the value of
his corporate stock to be $100,000 in his Rule 8.05 financial disclosure statement, which was
incorporated into the final judgment of divorce on June 14, 2000. In making this finding, the
chancellor relied upon the undisputed evidence that, in December 1999, George had
submitted a personal financial statement to State Bank and Trust valuing the stock at
$1,100,000, and in December 2000, he had submitted another statement to State Bank and
Trust valuing the stock at $1,837,500. The chancellor determined that George’s submission
of a false Rule 8.05 statement constituted perjury of a single witness; therefore, it did not rise
to the level of fraud upon the court.
¶9. The chancellor further found that Lisa could not have discovered George’s fraud until
after the expiration of the six-month time limit under Rule 60(b)(1). Addressing the Rule
60(b)(1) time limit, the chancellor stated:
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[George] argues that this court is precluded from any action based upon
the Court of Appeals ruling in Brown v. Estate of Johnson, 822 So. 2d 1072(Miss. App. 2002). This court has reviewed Brown repeatedly and is aware
of the finding that “mere perjury is not ground for collateral attack on a
judgment of divorce.” Brown v. Estate of Johnson, 822 So. 2d 1072, 1073
(Miss. App. 2002) (citing Kirby v. Kent, 160 So. 569, 572 (Miss. 1935)).
However, this court finds that equity demands that [George] not be rewarded
for his deceitful behavior.
¶10. The chancellor cited Kalman v. Kalman, in which the Court of Appeals had allowed
the consideration of a motion to modify a final judgment of divorce more than three years
after entry of judgment based upon the husband’s nondisclosure of lottery winnings. Kalman
v. Kalman, 905 So. 2d 760, 763-64 (Miss. Ct. App. 2004). The Court of Appeals in Kalman
stated that the husband’s argument pertaining to his failure to disclose accurate financial
information was an attempt to justify a fraud on the court. Id. at 764. Citing the court’s
equitable powers, the chancellor here deemed Lisa’s “Petition to Set Aside a Final Judgment
of Divorce and/or Property Settlement” to be a “Motion to Modify the Final Judgment of
Divorce and/or Property Settlement.” Essentially, the chancellor determined that, when
presented with egregious circumstances similar to those in Kalman, the chancery court has
the equitable power to entertain a motion to modify a final judgment of divorce filed outside
the six-month time limit in Rule 60(b)(1).
B. The Court of Appeals’ opinions
¶11. Before the Court of Appeals, George argued that the chancellor’s finding of fraud was
an abuse of discretion, and that Lisa’s petition was untimely under Rule 60(b)(1). The Court
of Appeals conducted a lengthy analysis of the evidence of fraud that was before the
chancellor and determined that “the facts place genuine doubt upon a legitimate fraud
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claim[.]” Trim, 2009 WL 1058630, at *5. In particular, the Court of Appeals expressed
doubt that George intentionally had misrepresented the value of the stock. However, the
Court of Appeals found it unnecessary to decide whether the chancellor’s finding of fraud
was an abuse of discretion, because it found the determinative issue to be whether Lisa’s
petition was untimely filed under Rule 60(b)(1). The Court of Appeals found that the
chancellor erroneously had relied upon Rule 60(b)(6) in deciding the case. The Court of
Appeals stated:
The chancellor’s ruling relating to Lisa’s fraud claim does not preempt Rule
60(b)(1). Rule 60(b)(1) clearly requires that any claim of fraud upon a party
to litigation must be brought within six months after the judgment, and such
a claim does not fall within the “catch-all” Rule 60(b)(6). As stated in
Tirouda, “this Court is without authority where Rule 60(b)(1), (2), or (3) is the
basis for an action and the motion is brought beyond the six-month limitation.”
Tirouda, 919 So. 2d at 214(¶8).
Trim, 2009 WL 1058630, at *7.
¶12. The Court of Appeals distinguished its prior decision in Kalman, in which it had
allowed consideration of a motion to modify made three years after entry of the final divorce
judgment, finding that “the instant matter does not deal with something as bizarre as a litigant
winning the lottery one month prior to divorce and hiding his winnings from the spouse and
the court.” Trim, 2009 WL 1058630, at *6. The Court of Appeals cited Lisa’s testimony
that she was involved in George’s business, from which it concluded that Lisa easily could
have discovered the true stock value prior to the divorce judgment. The Court of Appeals
also stated that a property settlement agreement incorporated into a divorce decree is not
subject to modification.
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¶13. The Court of Appeals concluded that, although the result was a harsh one, Lisa’s
petition was time-barred under Rule 60(b)(1). Accordingly, the Court of Appeals reversed
and rendered a judgment for George. In dissent, four judges argued that sufficient evidence
supported the chancellor’s finding of fraud, and that the chancellor possessed discretion to
entertain Lisa’s petition pursuant to the “grand reservoir of equitable power to do justice in
a particular case” afforded by Rule 60(b)(6). Trim, 2009 WL 1058630, at *8-10 (Myers,
P.J., dissenting). The dissent argued that, because Lisa could not have discovered the value
of the stock within the six-month time limitation, this was an extraordinary situation in which
equitable principles justified the application of Rule 60(b)(6) rather than Rule 60(b)(1).
Further, the dissent argued that, although Lisa did not file the petition until approximately
two years after her discovery of the misrepresentation, the evidence of dilatory conduct by
Lisa’s attorneys would have permitted a finding that she had brought the petition within a
reasonable time.
C. Discussion
¶14. The Court of Appeals’ analysis of the chancellor’s ability to modify the final judgment
of divorce was limited to determining the court’s authority under Rule 60(b). Both the
majority and the dissenting opinions found that the chancellor had used Rule 60(b)(6) to
modify the judgment; the majority and the dissent disagreed about whether the chancellor’s
use of Rule 60(b)(6) was permissible. This Court’s review of the chancellor’s opinion
reveals that the chancellor did not invoke Rule 60(b)(6) as authority for the modification.
Instead, the chancellor opted to use his equitable powers to treat Lisa’s petition as a motion
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to modify the final judgment, and he modified the equitable distribution of marital property
accordingly.
¶15. Rule 60(b) provides that the rule does not limit the court’s power to “to set aside a
judgment for fraud upon the court.” Miss. R. Civ. P. 60(b). “Relief based on ‘fraud upon
the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an
unconscionable plan or scheme which is designed to improperly influence the court in its
decision.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978)). Fraud on the court
“should ‘embrace only the species of fraud which does or attempts to, defile the court itself,
or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform
in the usual manner its impartial task of adjudging cases that are presented for adjudication.’”
Id. (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n.8
(5th Cir. 1980)). “Fraud vitiates a judgment caused by the active agency of some party to the
proceeding, as the court is misled and deceived as to the facts upon which it attempts to
administer the law, and mistake is equally efficacious in procuring a wrong . . . . Brown v.
Wesson, 114 Miss. 216, 74 So. 831, 834 (1917).
¶16. It has been recognized that “[t]he mere nondisclosure to an adverse party and to the
court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the
court’ for purposes of vacating a judgment under Rule 60(b).” Kerwit Med. Prods., 616 F.
2d at 837. We find that the intentional filing of a substantially false Rule 8.05 statement is
misconduct that rises above mere nondisclosure of material facts to an adverse party. A Rule
8.05 statement is a mandatory filing with the chancery court that provides that court with
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accurate financial information to assist in its equitable distribution of the divorcing parties’
assets. Miss. Unif. Ch. R. 8.05. In many divorce cases, a chancellor undertaking equitable
distribution has the power to control virtually every asset the parties possess. It is vital to the
effective administration of justice in the domestic relations arena that chancellors undertake
this task while in possession of accurate financial information. To that effect, our rules
provide that the failure to submit a Rule 8.05 statement without just cause constitutes
contempt of court. Miss. Unif. Ch. R. 8.05.
¶17. We hold that a party’s intentional filing of a substantially false Rule 8.05 financial
statement constitutes a fraud on the court. In this case, the chancellor found that clear and
convincing evidence demonstrated that George intentionally had filed a false Rule 8.05
financial disclosure statement that drastically undervalued a major marital asset. However,
the chancellor determined that George’s conduct constituted fraud on a party and did not rise
to the requisite level of egregiousness for fraud on the court. This finding was manifestly
erroneous. We hold that, by intentionally filing a substantially false Rule 8.05 financial
disclosure statement, George committed a fraud upon the court. Therefore, no time limit
constrained the chancellor’s ability to modify the divorce judgment to remedy the fraud on
the court. Miss. R. Civ. P. 60(b).
¶18. The Court of Appeals cited Townsend v. Townsend, 859 So. 2d 370, 376 (Miss.
2003), for the proposition that a property settlement agreement is not subject to modification.
However, Townsend clarifies that a property settlement agreement is like any other contract,
and may be reformed on the basis of mutual mistake, or a mistake by one party coupled with
fraud or inequitable conduct by the other party. Townsend, 859 So. 2d at 376 (quoting
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Johnson v. Consol. Am. Life Ins. Co., 244 So. 2d 400, 402 (Miss. 1971); see Norton v.
Norton, 742 So. 2d 126, 129 (Miss. 1999) (stating that “absent fraud or a contractual
provision stating otherwise, neither a property settlement nor lump sum alimony may be
modified”).
¶19. We further observe that, although the Court of Appeals expressed doubt that the
elements of fraud had been met, that court improperly reweighed the evidence before the
chancellor to reach this conclusion. The elements of an intentional or fraudulent
representation, which must be proven by clear and convincing evidence, are:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's
knowledge of its falsity or ignorance of its truth, (5) his intent that it should be
acted on by the hearer and in the manner reasonably contemplated, (6) the
hearer's ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely
thereon, and (9) his consequent and proximate injury.
McCord v. Healthcare Recoveries, Inc., 960 So. 2d 399, 406 (Miss. 2007). The Court of
Appeals observed that the chancellor had “seemed to place great emphasis” on the fact that
George had represented in a financial statement to State Bank and Trust in December 1999
that the value of his stock in BCI was $1,100,000, but represented in his 8.05 statement in
April 2000 that it was worth only $100,000. The chancellor also had relied on the fact that
George had represented in a financial statement to State Bank and Trust in December 2000
that his stock was worth $1,186,000. Based upon George’s testimony that: (1) the financial
statements were not completed by him, but only signed by him; (2) he was relatively
uneducated and had quit school at the age of sixteen; (3) he did not believe the stock was
worth $1,100,000 when he discussed the divorce settlement with Lisa in September 1999 and
submitted the Rule 8.05 statement in April 2000; and (4) his own expert in the Trim v. Bailey
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litigation had valued the stock at $111,000, the Court of Appeals found the evidence
unconvincing that George intentionally had perpetrated fraud upon Lisa. Moreover, the
Court of Appeals found that Lisa’s reliance on George’s valuation was naive due to her
testimony that she had performed work for BCI on several occasions. The Court of Appeals
stated: “On one hand, she claimed to work at and be very involved with the company; while
on the other hand, she claimed to barely know George’s partner or any details surrounding
the closely-held company. It is unclear where the truth lies.” Trim, 2009 WL 1058630, at
*4. The Court of Appeals also stated that, if Lisa had harbored doubts about the stock
valuation at the time of the divorce, she could have refused to execute the property settlement
agreement, requested George’s agreement to an appraisal of the stock, or demanded BCI’s
financial records. Id.
¶20. “The credibility of the witnesses and the weight of their testimony, as well as the
interpretation of evidence where it is capable of more than one reasonable interpretation, are
primarily for the chancellor as the trier of facts.” Chamblee v. Chamblee, 637 So. 2d 850,
860 (Miss. 1994) (quoting Polk v Polk, 559 So. 2d 1048, 1049 (Miss. 1990)). We observe
that the evidence which the Court of Appeals found to cast doubt upon the chancellor’s
finding conflicted with other evidence that was before the chancellor. Certainly, reasonable
minds could differ on whether the elements of fraud were met in this case. Nonetheless,
because the evidence was capable of more than one reasonable interpretation, the issue was
for the chancellor as the finder of fact. It was within the chancellor’s discretion to weigh the
credibility of the conflicting testimony and to choose between competing interpretations of
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the evidence. The evidence before the chancellor was sufficient to support his discretionary
findings that George had perpetuated fraud upon Lisa and that this act was egregious.
CONCLUSION
¶21. We find that George’s submission of a substantially false Rule 8.05 financial
disclosure statement constituted a fraud on the court, and no time limit was applicable to the
court’s ability to remedy the fraud by modifying the final judgment of divorce. Therefore,
we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the
Chancery Court of Hinds County.
¶22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REINSTATED
AND AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.
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