Kathryn Schroeder Clark v. Lisa Younger Neese , 262 So. 3d 1117 ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-01052-SCT
CONSOLIDATED WITH
NO. 2012-CA-00653-SCT
KATHRYN SCHROEDER CLARK, WITH POWER
OF ATTORNEY FOR HELEN SCHROEDER
v.
LISA YOUNGER NEESE, ADMINISTRATRIX OF
THE ESTATE OF HARRY L. SCHROEDER,
DECEASED
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 06/01/2016
TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS: DUNBAR DOWDY WATT
DAN W. WEBB
WAYNE DOWDY
ROECHELLE RYANN MORGAN
NORMA CARR RUFF
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DUNBAR DOWDY WATT
WAYNE DOWDY
ATTORNEYS FOR APPELLEE: NORMA CARR RUFF
DAN W. WEBB
ROECHELLE RYANN MORGAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 01/31/2019
MOTION FOR REHEARING FILED: 09/18/2018
MANDATE ISSUED:
BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is denied. The previous opinion is withdrawn, and this
opinion is substituted therefor. Helen Schroeder appeals the Lowndes County Circuit Court’s
grant of summary judgment to the Estate of Harry Schroeder, arguing that the trial court erred
in finding that the Estate was entitled to judgment as a matter of law on the grounds of
release, res judicata, and accord and satisfaction. We reverse and remand to the trial court
for further proceedings.
FACTS & PROCEDURAL HISTORY
¶2. This is the second time we have considered an appeal by Helen Schroeder (“Helen”),
after the grant of summary judgment to the Estate of Harry Schroeder (“Harry”).1 The facts
regarding the car accident and the original cause of action are set out in this Court’s opinion
in Clark v. Neese (“Clark I”), 131 So. 3d 556, 558 (Miss. 2013):
A log truck driven by Royce Sullivan collided with the rear of an automobile
being driven by Harry Schroeder, who had just pulled his car onto a highway
in Lowndes County. Harry died as a result of the accident, and his wife,
Helen–who was a passenger in her husband’s car–suffered severe injuries,
permanent disability, and diminished mental capacity. Helen–both
individually, and as one of Harry’s wrongful-death beneficiaries–sued Sullivan
in federal court, alleging that Sullivan’s negligence had caused Harry’s death
and her permanent disability. . . . Sullivan moved for summary judgment at the
close of discovery, arguing that the uncontradicted evidence established
Harry’s negligence as the sole cause of the accident. In denying summary
judgment, the federal judge stated that the evidence created a jury question as
to Sullivan’s fault, and that “plaintiffs do not appear to dispute Harry
Schroeder’s potential contributory negligence.” The parties settled and agreed
to a release of claims, and the district court dismissed the case.
1
Kathryn Clark filed suit on behalf of her mother, Helen Schroeder. The defendant,
Harry L. Schroeder, deceased, is the husband of Helen Schroeder and father of Kathryn
Schroeder Clark.
2
Following the settlement agreement, release, and subsequent dismissal of the action against
Sullivan, Helen filed suit against Harry in the Circuit Court of Lowndes County, Mississippi.
Id. Helen alleged that Harry negligently had failed to yield the right of way and pulled in
front of Sullivan’s log truck at an extremely slow rate of speed, causing the accident which
resulted in Helen’s permanent disability. Id.
¶3. In response, on August 17, 2010, Harry moved for summary judgment and argued that
Helen had pleaded facts in her complaint that were materially different from the facts she had
alleged in the federal district court. Id. Harry asserted that the trial court should grant
summary judgment based on the doctrines of judicial and equitable estoppel. Id. Harry also
argued that the settlement and release of claims against Sullivan in federal court barred the
circuit-court action under the doctrines of contractual release, accord and satisfaction,2 and
res judicata. Id.
¶4. The trial court granted summary judgment in favor of Harry and found that Helen was
judicially estopped from bringing a claim against Harry. Id. The trial court reasoned that,
although Helen discovered Harry’s potential fault during discovery, she had made the
conscious decision not to add Harry as a defendant to avoid losing diversity jurisdiction, and
as a result, her failure to add Harry in federal court barred her from bringing suit in the circuit
2
Helen contends that Harry failed to raise the affirmative defense of accord and
satisfaction in the seven years that this case has been pending; however, the record is clear
that the defense of accord and satisfaction was raised at the trial-court level.
3
court.3 Id. The trial court declined to rule on the merits regarding Harry’s arguments of
equitable estoppel, accord and satisfaction, and merger. Id.
¶5. On December 12, 2013, this Court reversed the judgment and remanded the case. Id.
at 562. In regard to whether Helen’s suit was barred by judicial estoppel, this Court held
[W]e need not determine whether Helen’s positions actually were knowingly
inconsistent because we find it abundantly clear from the record that, when the
federal district court denied Sullivan’s motion for summary judgment, [it] was
not required to accept or rely on Helen’s prior position—an absolute
requirement for the application of judicial estoppel.
Id.
¶6. In reversing the trial court’s grant of summary judgment, this Court directed the trial
court to rule on Harry’s claims of equitable estoppel, accord and satisfaction, contractual
release, and merger. Id.
¶7. On remand, Harry again moved for summary judgment, which the trial court granted
on the basis of res judicata, accord and satisfaction, and contractual release.
¶8. Aggrieved, Helen again has appealed, raising the following issues:
I. Whether the Circuit Court of Lowndes County, Mississippi (“trial
court”) erred in granting summary judgment on the basis that the
suit was barred by the doctrine of merger because all four elements
of res judicata were satisfied.
II. Whether the trial court erred in finding that the satisfaction,
release, and indemnity agreement (“release agreement”) was
“clear, definite, explicit, harmonious in all its provisions, and free
from ambiguity throughout,” and therefore, was a valid release of
all claims stemming from the collision.
3
When ruling on Sullivan’s motion for summary judgment during the federal suit, the
federal district court acknowledged that “the alleged contributory negligence of Harry
Schroeder was a prominent (and obvious) point of contention.”
4
III. Whether the trial court improperly determined that the release
agreement, coupled with the $300,000 payment, and the plaintiff’s
subsequent acceptance of the payment, operated as an accord and
satisfaction of all the plaintiff’s claims stemming from the cause of
action.
STANDARD OF REVIEW
¶9. We review the trial court’s grant of summary judgment de novo. City of Jackson v.
Shavers, 97 So. 3d 686, 688 (Miss. 2012) (citing Arcadia Farms P’ship v. Audubon Ins.
Co., 77 So. 3d 100, 104 (Miss. 2012)).
DISCUSSION
I. Whether Helen’s suit is barred by res judicata.
¶10. In its order granting summary judgment, the trial court found, “Because the four
identities of res judicata are present, the Court rules that the doctrine of merger as it relates
to res judicata applies to this action.” Merger is a bar under res judicata for an action that
should have been litigated, rather than a claim that actually was litigated. See Jeffrey Jackson
& Mary Miller, Encyclopedia of Mississippi Law § 14:6 (2001). See also Hill v. Carroll
Cty., 17 So. 3d 1081,1084-85 (Miss. 2009). Helen argues that the trial court erred in barring
her suit under the merger doctrine because the elements required for res judicata are not met.
Helen asserts that, since Harry was not a party to the original suit, the identities of the parties
are different in the two suits, and the federal district court’s final judgment was “not a
judgment on the merits” as contemplated by the doctrine of res judicata.4
4
Helen also asserts the federal court was aware of potential contributory negligence
of Harry presumably to show no issue was made to require that Harry be made a party to the
5
¶11. Conversely, Harry responds that the doctrine of merger is appropriate, because
Helen’s claims for personal injuries resulting from the accident merged into the agreed
judgment against Sullivan. As a result, Harry contends that Helen is barred from continuing
to pursue her claims against Harry that could have been asserted in the federal suit.
¶12. The doctrine of res judicata operates to bar a subsequent attempt to litigate a claim
already decided. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss.
2005). Further, the doctrine
[R]eflects the refusal of the law to tolerate a multiplicity of litigation. It is a
doctrine of public policy designed to avoid the “expense and vexation” of
attending multiple lawsuits, conserve judicial resources and foster reliance on
judicial action by minimizing the possibilities of inconsistent decisions.
Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1337 (Miss. 1997) (citing Montana
v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74, 59 L. Ed. 2d 210 (1979)).
¶13. The doctrine of res judicata generally requires the presence of four identities: “(1)
identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of
the parties to the cause of action, and (4) identity of the quality or character of a person
against whom the claim is made.” Hinton v. Rolison, 175 So. 3d 1252, 1258 (Miss. 2015)
(quoting Anderson v. LaVere, 895 So. 2d 828, 832 (Miss. 2004)). When those identities are
present, res judicata precludes “parties from litigating in a second action claims within the
scope of the judgment of the first action.” Anderson, 895 So. 2d at 832.
A. Identity of the Subject Matter of the Action
settlement.
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¶14. Res judicata “bars a second action between the same parties on the subject matter
directly involved in the prior action.” Harrison, 891 So. 2d at 232. This Court’s ruling in
Harrison referred to subject matter as “the substance of the lawsuit.” Id. at 232-33. In the
current case, the subject matter presented before both the federal and state suits is the same.
In Bell v. Dixon, the Court of Appeals found that where both cases concerned the same
automobile accident, the subject-matter identity of res judicata was met. Bell v. Dixon, 976
So. 2d 965, 968 (Miss. Ct. App. 2008); see also Little, 704 So. 2d at 1338 (holding that the
subject matter of a federal suit and state suit, both of which concerned who was responsible
for the death of two welders, satisfied the subject-matter requirement of res judicata).
Likewise, in the current action, the subject matter of both the federal and state lawsuits was
the automobile collision that occurred between Sullivan and Harry. Therefore, this element
of res judicata is met.
B. Identity of the Cause of Action
¶15. This identity requires the “cause of action” in both suits to be the same. This Court has
defined “cause of action” as the underlying facts and circumstances upon which a claim has
been brought. Hill, 17 So. 3d at 1085. Moreover, this Court has stated that “[w]here one has
a choice of more than one theory of recovery for a given wrong, she may not assert them
serially in successive actions but must advance all at once on pain of the bar of res judicata.”
Walton v. Bourgeois, 512 So. 2d 698, 702 (Miss. 1987).
¶16. This Court follows a transactional approach to determine whether the identity of the
cause-of-action requirement is met. Hill, 17 So. 3d at 1086. Specifically, courts are to “look
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past the legal bases asserted and rely more on the factual and transactional relationship
between the original action and the subsequent action.” Id. In defining transaction, this Court
looked to the approach found in the Restatement (Second) of Judgments and articulated by
the Supreme Court of the United States:
[C]auses of action are the same if they arise from the same “transaction”;
whether they are products of the same “transaction” is to be determined by
“giving weight to such considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient trial unit, and
whether their treatment as a unit conforms to the parties’ expectations or
business understanding or usage.”
Harrison, 891 So. 2d at 234 (quoting Nevada v. United States, 463 U.S. 110, 131, 103 S. Ct.
2906, 77 L. Ed. 2d 509 (1983)).
¶17. Both parties disagree as to when Helen discovered she had a potential claim against
Harry. However, Helen does not contend that the identity of the causes of action against
Harry and Sullivan are different. The legal theory contained in Helen’s federal suit against
Sullivan is based on the same underlying facts and circumstances as the case at bar. Helen
argues that both Sullivan and Harry were negligent in causing the accident. Helen charged
in the federal action that Sullivan’s liability for the wreck was based on his speeding, while
Helen now contends that Harry failed to yield before entering onto Highway 45. Thus, both
causes of action stem from the same set of underlying facts, and thus both actions arise from
the same transaction. The requirement that the cause of action must be the same is satisfied.
C. Identity of the Parties to the Cause of Action
¶18. For the third identity to be satisfied under the doctrine of res judicata, the parties must
be in privity with one another. Bell, 976 So. 2d at 968. While a nonparty defendant can assert
8
res judicata if it is in “privity” with the named defendant, there is no one prevailing definition
of privity. Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992). It is not
necessary, however, to use strict identity. See Little, 704 So. 2d at 1339 (privity existed
between different defendants because in both cases defendants were distributor-retailers who
were alleged to have caused the death of the welders). When trying to determine whether
privity exists, this Court has looked to the comment to Section 83 of the Restatement of
Judgments (1942), which provides,
Privity is a word which expresses the idea that as to certain matters and in
certain circumstances persons who are not parties to an action but who are
connected with it in their interests are affected by the judgment with reference
to the interests involved in the action, as if they were parties. The statement
that a person is bound . . . as a privy is a short method of stating that under the
circumstances and for the purpose of the case at hand he is bound by . . . all or
some of the rules of res judicata by way of merger, bar or collateral estoppel.
Little, 704 So. 2d at 1339 (citing Restatement of Judgments § 83 cmt. (1942)). “Thus,
‘privity’ is . . . a broad concept, which requires us to look to the surrounding circumstances
to determine whether claim preclusion is justified.” EMC Mortg. Corp. v. Carmichael, 17
So. 3d 1087, 1091 (Miss. 2009) (quoting Hogan v. Buckingham, 730 So. 2d 15, 18 (Miss.
1998)).
¶19. Nevertheless, the doctrine of res judicata bars only claims against parties who were
adverse to each other in the original action. Holland v. Mayfield, 826 So. 2d 664, 671 (Miss.
1999) (citing Heller Fin., Inc. v. Grammco Computer Sales, Inc., 71 F.3d 518, 523 (5th Cir.
1996)), abrogated on other grounds by Harrington v. Office of Miss. Sec’y of State, 129 So.
9
3d 153, 161 (Miss. 2013). Further, parties are adversaries only as to those claims actually
asserted. Jackson v. Lemler, 83 Miss. 37, 42-44, 35 So. 306, 307-08 (1903).
¶20. Sullivan and Harry are not in privity with one another. Instead, both were independent
tortfeasors who Helen alleged were contributorily negligent in causing the accident. Privity,
the third element of res judicata, is not satisfied.
D. The Identity of the Quality or Character of a Person
Against Whom the Claim is Made
¶21. This Court has noted that it “has not explicitly defined the identity of the quality or
character of a person against whom the claim is made.” Hill, 17 So. 3d at 1086. Examples
of this identity and its application exist, particularly where the parties are the same in the
relevant actions and are acting in the same interests or capacity. See Avakian v. Wilmington
Trust, Nat’l Ass’n, 242 So. 3d 961, 970 (Miss. Ct. App. 2018) (citing Hill, 17 So. 3d at
1086-87). However, “[w]here someone is sued in a limited or representative capacity in one
cause and then personally in another, the party’s quality or character is not the same in both
actions.” Bell, 976 So. 2d at 968.
¶22. In the original federal case, Helen sued Sullivan, both individually and as a wrongful-
death beneficiary. Harry was not named as a party plaintiff or a party defendant. Moreover,
Harry’s estate did not exist in any form during the time the original suit was pending. Thus,
the identity of the quality or character element of res judicata is not met.
E. Determination on the Merits
¶23. Even if all four elements of res judicata are satisfied, the prior judgment also must be
final and on the merits. Anderson, 895 So. 2d at 832-33. See also Kremer v. Chem. Constr.
10
Corp., 456 U.S. 461, 482, 102 S. Ct. 1883, 1898, 72 L. Ed. 2d 262 (1982) (for res judicata
to apply, there must have been a full and fair opportunity to litigate, and a state court may not
grant preclusive effect to a judgment that violated the applicable requirements of the Due
Process Clause); Harrison, 891 So. 2d at 232 (res judicata applies when a court of competent
jurisdiction has entered a final judgment on the merits, and “res judicata precludes claims that
were actually litigated in a previous action.”). Furthermore, not all judgments are on the
merits. Bowen v. Bowen, 688 So. 2d 1374, 1384 (Miss. 1997).
¶24. Harry contends that the order to dismiss with prejudice, entered after an offer of
settlement made pursuant to Rule 68 in the original action, is a final judgment on the merits
and has preclusive effect for res judicata purposes. Rocha v. California Dep’t of Corr. &
Rehab., 691 F. App’x 433, 434 (9th Cir. 2017) (holding Rule 68 judgment entered in prior
action was judgment on the merits which precluded subsequent lawsuit under res judicata).
However, res judicata still does not apply because the parties were not in privity, nor does
the current suit share the same quality or character of the original action. Both elements are
required for a suit to be barred by res judicata.
¶25. Thus the trial court improperly granted summary judgment on the basis of res judicata.
II. Whether the release agreement releases the Estate of Harry
Schroeder.
¶26. Helen claims that the trial court erred in granting Harry’s motion for summary
judgment on the basis that the Satisfaction, Release, and Indemnity Agreement (“release”)
was meant to release any and all claims stemming from the initial collision, including Helen’s
11
claim against Harry. The trial court found that the release was “clear, definite, explicit,
harmonious in all its provisions, and free from ambiguity throughout.”
¶27. This Court previously has been confronted with the issue of whether a plaintiff may
pursue a remedy against one joint tortfeasor after another joint tortfeasor was released by the
plaintiff from liability. For instance, in Medley v. Webb, 288 So. 2d 846, 848-49 (Miss.
1974), this Court found that there is no doubt that a plaintiff may sue another joint tortfeasor
after releasing the other alleged tortfeasor from liability. Further, this Court has delineated
the difference between being jointly liable and being a joint tortfeasor. See J&J Timber Co.
v. Broome, 932 So. 2d 1, 7 (Miss. 2006) (quoting Richardson v. APAC-Miss., Inc., 631 So.
2d 143, 151 n.7 (Miss. 1994)) (“Joint tortfeasor claims arise where the separate wrongful
conduct of two or more individuals combine to cause an injury, and each because his conduct
bears some responsibility for the injury.”). The key distinction is whether the claimant is
settling with one joint tortfeasor and then pursuing a remedy against another, independently
liable, tortfeasor. Id.
¶28. In Smith v. Falke, 474 So. 2d 1044, 1047 (Miss. 1985), this Court sought to determine
whether the plaintiff had the right to pursue an action against a driver who struck her vehicle
from behind after she had released the second driver who had caused the chain reaction. The
first driver argued that he was a third-party beneficiary of the release. Id. at 1045. This Court
rejected that argument because “in a release contract a party releases only those parties whom
he intends to release.” Id. at 1047. Likewise in Country Club of Jackson v. Saucier, 498 So.
2d 337, 338 (Miss. 1986), the plaintiff, who had been injured in an automobile riding as a
12
passenger, entered into a settlement and release with the estate of the driver and the driver’s
insurer. Id. The plaintiff then filed suit against the Jackson Country Club, which the plaintiff
asserted was another joint tortfeasor, as the country club allegedly had furnished alcohol to
the driver while he was visibly intoxicated. Id. This Court found that the country club was
not intended to be released and therefore was “a stranger to the release contract and paid no
consideration for it, nor was consideration paid for its benefit.” Id. at 339. Thus, this Court
must look to the language of the release agreement to find whether Helen had intended to
release Harry.
¶29. This Court applies a three-tiered process to contract interpretation. Pursue Energy
Corp. v. Perkins, 558 So. 2d 349, 351 (Miss. 1990). First, the Court must look to the “four
corners” of the agreement and review the actual language the parties used in their agreement.
Id. at 352. When the language of the contract is clear and unambiguous, “the parties’ intent
must be effectuated.” Id.
¶30. Helen contends that the language of the release agreement is unambiguous and
releases only the specific parties mentioned within the release. The release contained the
following relevant provisions:
[F]or and in consideration of the payment of the sum of $300,000. . . I HELEN
SCHROEDER as wrongful death beneficiaries of Harry L. Schroeder, do
hereby fully, finally and forever release, remise, and discharge ROYCE
SULLIVAN, ROYCE SULLIVAN TRUCKING, PROGRESSIVE
INSURANCE COMPANY, their employers, principals, agents, officers,
employees, servants, successors and insurers (hereinafter known as
Releasees”), from any and all claims, demands, actions, causes of action or
suits of any kind whatsoever, known or unknown, for damages and injuries of
any kind. . . which may have occurred on our about May 23, 2007, when the
vehicle operated by Harry Schroeder in which Helen Schroeder was a
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passenger was struck by the vehicle operated by Royce Sullivan at the
Intersection of U.S. Highway 45.
The undersigned declare that the terms of this Release have been completely
read and are fully understood and voluntarily accepted for the express purpose
of precluding forever any further or additional claims arising out of the
aforesaid accident against any of the parties aforementioned.
(Emphasis added.)
¶31. Harry cites Scott v. Gammons, 985 So. 2d 872, 875 (Miss. Ct. App. 2008), in support
of his position that the release agreement applies to Harry because the court held there that
the release that had been signed releasing one joint tortfeasor, released any other joint
tortfeasor who may have been discovered. Unlike the current case, however, the release
agreement that had been executed in Scott designated not only the sole alleged tortfeasor, but
also “any other person, firm or corporation who may, in any manner, be liable” as releasees.
Id.
¶32. Looking to the language of the release agreement in the current case, the only parties
specifically designated by the release were: (1) Helen Schroeder, (“the Undersigned”); (2)
Helen Schroeder, Kathryn Schroeder Clark, and John Schroeder, (“Wrongful Death
Beneficiaries of Harry Schroeder”); and (3) Royce Sullivan, Royce Sullivan Trucking, and
Progressive Gulf Insurance Company (“Releasees”). The agreement is not ambiguous as to
who was released. Unlike the plaintiff in Scott, Helen specifically named the persons and
entities she intended to release from future claims arising from the accident. Even further,
the release agreement stated that only the “parties aforementioned” were precluded forever
from “any further or additional claims arising out of the aforesaid accident.” Harry was not
14
among those released, nor was he “any other parties who may be liable.” Therefore, we find
that the trial court erred in granting summary judgment on the basis of the release agreement
between Helen and Sullivan, to which Harry was not a signatory.
III. Whether Helen’s suit is barred under the doctrine of accord and
satisfaction.
¶33. Mississippi follows the majority rule “that for a release of one joint tortfeasor to
release other joint tortfeasors, the satisfaction received by the injured party must be intended
and must be accepted as full and total compensation for damages sustained.” Falke, 474 So.
2d at 1045. According to the ruling in Falke, a plaintiff never should surrender his cause of
action unless he has received such satisfactory compensation that he is “no longer entitled
to maintain it.” Id. at 1046 (citing Prosser, Law of Torts § 301 (4th ed. 1971).
¶34. This Court consistently has recognized that the elements of accord and satisfaction
consist of four basic requirements. Royer Homes of Miss., Inc. v. Chandeleur Homes Inc.,
857 So. 2d 748, 753 (Miss. 2003). First, something of value must be offered in full
satisfaction of the demand. Id. at 754 (citing Wallace v. United Miss. Bank, 726 So. 2d 578,
589 (Miss. 1998)). Second, the offer must be accompanied by acts and a declaration which
amount to a condition that if the thing is accepted, it is accepted in satisfaction. Id. Third, the
party offering the thing of value is bound to understand that if he takes it, he takes it subject
to conditions. Id. Fourth, the party actually must accept the item offered. Id.
¶35. In order to constitute an effective accord and satisfaction, that which is accepted “must
have been accepted in full satisfaction of the demand in question.” Austin v. Padgett, 678 So.
2d 1002, 1004 (Miss. 1996). Here, the $300,000 settlement accepted in “satisfaction of all
15
claims,” according to the release agreement, referred only to those claims of the designated
“Releasees” against Sullivan. Helen made no demand against Harry, nor was Harry a party
to the release agreement in the federal suit. Thus, the first element of accord and satisfaction
is not met. Accordingly, we find that the trial court erred in granting Harry’s motion for
summary judgment under the doctrine of accord and satisfaction.
CONCLUSION
¶36. For the foregoing reasons, we reverse the trial court’s grant of summary judgment and
remand this case to the trial court for further proceedings consistent with this opinion.
¶37. REVERSED AND REMANDED.
RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., NOT
PARTICIPATING.
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