Wolfe v. The Archimedes Acad. , 773 S.E.2d 573 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1132
Filed: 19 May 2015
Durham County, No. 13 CVD 5392
TERRA E. WOLFE, Plaintiff,
v.
THE ARCHIMEDES ACADEMY, a partnership, and TAMMY KEARNS, ROBNET
KEARNS1, and GARY HULL, Individually and as Partners Associated and in
Business Under the Common Name The Archimedes Academy, Defendants.
Appeal by plaintiff from order entered 2 May 2014 by Judge James T. Hill in
Durham County District Court. Heard in the Court of Appeals 5 March 2015.
Hutchison PLLC, by Trevor P. Schmidt, and Wood Jackson PLLC, by J.
Christopher Jackson, for plaintiff-appellant.
Nelson Mullins Riley & Scarborough LLP, by Donna Rascoe and Bryce R.
Lowder, for defendants-appellees.
DAVIS, Judge.
Terra E. Wolfe (“Plaintiff”) appeals from the trial court’s order dismissing her
complaint against the Archimedes Academy (“Archimedes”), Tammy Kerns
(“Tammy”), Robnet Kerns (“Robnet”), and Gary Hull (“Hull”) (collectively
1 We note that while the trial court’s order spells Robnet and Tammy Kerns’s last name as
“Kearns,” elsewhere in the record their last name is spelled “Kerns.” We therefore elect to use the
spelling “Kerns” throughout this opinion as this appears to be the spelling actually used by the parties.
WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
“Defendants”) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure. On appeal, Plaintiff contends that the trial court erred in granting
Defendants’ motion to dismiss based on the doctrine of res judicata. After careful
review, we affirm.
Factual Background
We have summarized the pertinent facts below using Plaintiff’s own
allegations from her complaint, which we treat as true in reviewing a trial court’s
order granting a motion to dismiss under Rule 12(b)(6). See, e.g., Stein v. Asheville
City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a
complaint dismissed under Rule 12(b)(6), we treat a plaintiff’s factual allegations as
true.”).
Archimedes was a private school formed in early 2012 by Tammy, Robnet, and
Hull. Archimedes was established as a general partnership under North Carolina
law, and the members of the partnership were Tammy, Robnet, and Hull.2 The
inaugural class of Archimedes was to be comprised of the Kernses’ daughter and
Hull’s daughter. Defendants planned to enroll additional students at Archimedes in
the future.
2While Defendants deny that Archimedes was, in fact, a general partnership, they
acknowledge in their brief that for purposes of our review of an order entered pursuant to Rule 12(b)(6),
we must take Plaintiff’s allegations in her complaint as true.
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Opinion of the Court
On 28 April 2012, Hull and Plaintiff met and discussed Hull’s vision for
Archimedes. This meeting led to Plaintiff submitting her resume to Archimedes for
a teaching position.
On 17 May 2012, the Kernses and Hull encouraged Plaintiff to move to North
Carolina from Florida by making multiple representations to her about becoming the
first teacher at Archimedes, teaching their daughters, and “working with the
partnership to create a curriculum that would form the basis of future years of
instruction at the school.”
On 24 May 2012, Tammy drafted and sent to Plaintiff a written employment
agreement (“the Employment Agreement”) offering Plaintiff a teaching position at
Archimedes from 15 August 2012 through 15 June 2013 for which she would be
compensated in the amount of $2,500.00 per month. Tammy signed the Employment
Agreement as the President of Archimedes. Plaintiff signed the Employment
Agreement the following day. Plaintiff subsequently moved to North Carolina in July
of 2012 and began working for Archimedes on 15 August 2012.
Beginning in October 2012, however, a dispute arose between the Kernses and
Hull. While the nature of the dispute is not clear from the record, it appears that as
a result of the dispute, Archimedes began to pay Plaintiff only $1,250.00 — rather
than $2,500.00 — per month.
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
On 15 November 2012, Hull sent Plaintiff a letter (the “November
Agreement”), which stated, in pertinent part, as follows:
I, Gary Hull, agree to pay you the amount of $5,000 (five
thousand dollars) if you continue teaching at Archimedes
Academy through the end of the 2012-2013 school year.
This includes teaching through the end of the spring term
(May 31, 2013), and executing end-of-the-year
responsibilities such as issuing the year-end grade reports.
The amount will be paid upon your successful submission
of those grade reports.
I am compelled to pay you this money because, on
September 19, 2012, Robnet and Tammy Kerns
unilaterally (and without legal cause) breached their
contract with you and with Archimedes Academy. (That
contract is dated May 24, 2012.) For teaching their
daughter, they were contractually obligated to pay you
$12,500 in 10 equal installments from August 15, 2012
through June 15, 2013. The total amount of their breach
is $11,050.00.
The amount of $5,000 will be reduced commensurate with
the amount of any monetary damages recovered from the
Kerns. So, for example, if the Kerns pay damages of
$1,000, then the amount paid at the end of the school year
will be $4,000.
Plaintiff signed the November Agreement, assenting to its terms. However, Plaintiff
never received any compensation pursuant to this agreement.
On 24 January 2013, Plaintiff filed an action (“the Small Claims Action”) in
Durham County Small Claims Court against Tammy and Robnet.3 In her complaint,
3 Neither Hull nor Archimedes were named as defendants.
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Opinion of the Court
Plaintiff alleged claims for (1) breach of contract; (2) fraud; and (3) “tortious
interference.” Based on these claims, she sought damages in the amount of $5,000.00.
Plaintiff later submitted to the small claims court a copy of the Employment
Agreement and a narrative setting out the allegations underlying her claims for
relief.
On 28 February 2013, the magistrate ruled in favor of Tammy and Robnet and
dismissed Plaintiff’s action with prejudice. Plaintiff appealed the dismissal to
Durham County District Court, and the case was assigned to arbitration pursuant to
N.C. Gen. Stat. § 7A-37.1.
On 24 April 2013, an arbitration award and judgment was entered against
Plaintiff awarding her nothing and taxing her with the costs of the action. On 31
May 2013, Judge James T. Hill adopted the arbitration award as the judgment of the
district court.
Plaintiff did not appeal from Judge Hill’s 31 May 2013 judgment. Instead, she
filed a new action in Durham County District Court on 27 November 2013, the action
that forms the basis for the present appeal. In her complaint, Plaintiff asserted
causes of action against Archimedes, Tammy, Robnet, and Hull, alleging that
Tammy, Robnet, and Hull were being sued both individually and in their capacities
as partners of Archimedes. The complaint contained claims for (1) breach of the
Employment Agreement; (2) violation of the North Carolina Wage and Hour Act; (3)
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
breach of the November Agreement; (4) fraud and negligent misrepresentation; (5)
unjust enrichment; and (6) unfair trade practices.
On 22 January 2014, Plaintiff filed a motion for entry of default as to
Archimedes and Hull based on their failure to respond to her complaint. On that
same date, default was entered by an assistant clerk of court against Hull and
Archimedes. On 5 February 2014, Tammy and Robnet filed an answer to Plaintiff’s
complaint and a motion to dismiss pursuant to Rule 12(b)(6).
The motion to dismiss was heard before Judge Hill on 28 April 2014. On 2 May
2014, Judge Hill entered an order dismissing Plaintiff’s complaint, which contained
the following findings of fact:
1. Plaintiff initiated a small claims action (13 CVM
697) against Defendants Robnet Kerns and Tammy Kerns.
The small claims action was continued until counsel for
Defendants Robnet Kerns and Tammy Kerns were served
with documents referred to and attached to the small
claims complaint. The small claims action was
subsequently adjudicated in favor of Defendants Robnet
Kerns and Tammy Kerns by the duly appointed magistrate
on February 28, 2013.
2. Plaintiff appealed her small claims action to the
District Court which was heard, pursuant to the Local
Rules of the 14th Judicial District, District Court Division,
by a duly appointed arbitrator. The arbitrator also
adjudicated the action in favor of Defendants Robnet and
Tammy Kerns on April 24, 2013.
3. Plaintiff did not file a motion for a trial de novo
within the designated time period and this Court therefore
adopted the ruling of the arbitrator as the judgment of this
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
Court on May 31, 2013.
4. Plaintiff subsequently filed a second lawsuit in
Durham County District Court against Defendants in the
above entitled action. Attached to Plaintiff’s Complaint in
the instant second lawsuit was the same alleged contract
that was referred to and attached to Plaintiff’s initial
lawsuit that commenced in small claims court.
Judge Hill then made the following conclusions of law:
1. The Court takes judicial notice of the pleadings and
papers in the court file for Plaintiff’s first lawsuit, the small
claims action and subsequent appeal to District Court; said
court documents are relevant to the instant action and to
this Court’s analysis of the res judicata doctrine.
2. After reviewing the pleadings and papers in
Plaintiff’s small claims and subsequent District Court
appeal action, and after consideration of the papers
submitted in the instant action as referenced above,
Plaintiff’s Complaint alleges the same series of facts,
circumstances, and parties as the previous small claims
and District Court lawsuit.
3. Plaintiff’s Complaint in the instant action is barred
due to the res judicata doctrine.
NOW, THEREFORE, IT IS HEREBY ORDERED
that the Motion to Dismiss is GRANTED and Plaintiff’s
Complaint is dismissed with prejudice as to all parties.
On 30 May 2014, Plaintiff filed a notice of appeal to this Court.
Analysis
Plaintiff’s sole argument on appeal is that the trial court erred in dismissing
her complaint.
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
The standard of review of an order granting a Rule 12(b)(6)
motion is whether the complaint states a claim for which
relief can be granted under some legal theory when the
complaint is liberally construed and all the allegations
included therein are taken as true. On appeal, we review
the pleadings de novo to determine their legal sufficiency
and to determine whether the trial court’s ruling on the
motion to dismiss was correct.
Gilmore v. Gilmore, __ N.C. App. __, __, 748 S.E.2d 42, 45 (2013) (internal citations,
quotation marks, and brackets omitted).
I. Res Judicata
Plaintiff concedes that the doctrine of res judicata serves to bar her claims
against Robnet and Tammy in their individual capacities based upon the prior ruling
in the Small Claims Action. However, she contends that the trial court erred in ruling
that res judicata likewise bars her claims against (1) Archimedes; (2) Hull; and (3)
Tammy and Robnet, in their capacities as partners of Archimedes. We disagree.
In order to successfully assert the doctrine of res
judicata, a litigant must prove the following essential
elements: (1) a final judgment on the merits in an earlier
suit, (2) an identity of the causes of action in both the
earlier and the later suit, and (3) an identity of the parties
or their privies in the two suits.
Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d 259, 262 (2005).
Furthermore, “[w]hether the doctrine of res judicata operates to bar a cause of
action is a question of law reviewed de novo on appeal.” Mount Ulla Historical Pres.
Soc’y., Inc. v. Rowan Cty., __ N.C. App. __, __, 754 S.E.2d 237, 240 (2014) (citation,
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
quotation marks, and brackets omitted). As such, the defense of res judicata may be
raised in connection with a motion to dismiss under Rule 12(b)(6). See ACC Const.,
Inc. v. SunTrust Mortgage, Inc., __ N.C. App. __, __, 769 S.E.2d 200, 211 (2015) (“[A
party] cannot circumvent the application of res judicata by seeking a different remedy
and asserting a new theory for a claim that could and should have been resolved in
[an earlier action]. Accordingly, we hold that the trial court did not err in granting
[a] Rule 12(b)(6) motion to dismiss [on this basis].”).
Plaintiff does not dispute that the first two elements of res judicata exist as to
her claims in the present action. Therefore, we need only address the validity of the
trial court’s ruling as to the third element of res judicata — whether an identity of
the parties or their privies existed between the present action and the Small Claims
Action.
This Court has held that
[i]n general, privity involves a person so identified in
interest with another that he represents the same legal
right. Although the meaning of ‘privity’ has proven to be
elusive, and there is no definition of the word . . . which can
be applied in all cases, the prevailing definition in our
cases, at least in the context of res judicata, . . . is that
privity denotes a mutual or successive relationship to the
same rights of property. In determining whether such a
privity relation exists, courts will look beyond the nominal
party whose name appears on the record . . . and consider
the legal questions raised as they may affect the real party
or parties in interest.
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
Williams v. Peabody, 217 N.C. App. 1, 8, 719 S.E.2d 88, 94 (2011) (internal citations,
quotation marks, and brackets omitted).
Because of the allegation in Plaintiff’s complaint concerning the status of
Archimedes as a partnership with Hull, Tammy, and Robnet serving as its general
partners, we must examine principles of law applicable to general partnerships in
order to determine whether the third element of res judicata has been met.4 It is
well-established that
a partnership is an association of two or more persons to
carry on as co-owners a business for profit; that every
partner is an agent of the partnership for the purposes of
its business, and the act of every partner for apparently
carrying on in the usual way the business of the
partnership of which he is a member ordinarily binds the
partnership; that where by any wrongful act or omission of
any partner acting in the ordinary course of the business of
the partnership or with the authority of his co-partners,
loss or injury is caused to any person, not being a partner
in the partnership, or any penalty is incurred, the
partnership is liable therefor to the same extent as the
partner so acting or omitting to act; and that all partners
are liable jointly and severally for everything chargeable to
the partnership[.]
Dwiggins v. Parkway Bus Co., 230 N.C. 234, 238, 52 S.E.2d 892, 894-95 (1949)
(internal citations omitted).
4 In her brief, Plaintiff cites cases involving the extent to which privity existed between
shareholders and the corporate entity in the context of a closely held corporation. See, e.g., Troy
Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132 (1960). However, because, as explained herein,
principles of partnership law apply instead, her reliance on such cases is misplaced.
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
We are guided by our Supreme Court’s decision in Ron Medlin Const. v. Harris,
364 N.C. 577, 704 S.E.2d 486 (2010), in which the Court made clear that actions taken
by individual partners in furtherance of partnership business bind the partnership
and further distinguished between corporations and partnerships in this context:
Unlike a corporation that acts through its officers and
directors, who may or may not be shareholders,
partnerships act through their partners. Shareholders in
a corporation are insulated from personal liability for acts
of the corporation, but partners in a partnership are not
insulated from liability. Stated differently, no corporate
veil exists between a general partnership and its partners.
....
The jurisdictions appear to be split as to whether a
partnership is a separate legal entity, an aggregate of the
partners, or a hybrid organization that is viewed as an
aggregation of partners for some purposes and as a
separate entity for others. . . . In our view, the treatment of
a partnership as a hybrid organization that is considered
an aggregate of the partners for some purposes and a
separate entity for others more nearly reflects a correct
interpretation of the Uniform Partnership Act than does
the separate entity concept. The act of a partner in
furtherance of the partnership’s business binds the
partnership unless the partner was not authorized to act.
Id. at 583-84, 704 S.E.2d at 490-91 (internal citations and quotation marks omitted
and emphasis added).
This Court has held that a privity relationship exists between partners when
a contract is entered into by the partnership through one of its partners acting as an
agent of the partnership.
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
Defendant argues, however, that there is no privity
between the defendant-seller and plaintiff since it was the
partnership and not the plaintiff which purchased the
cable and clamp. We do not agree. It is fundamental that
all partners are agents of each other, that a contract
entered into by the agent is a contract entered into by the
principal and that all partners are liable on any contract
executed by a single partner in the name of the
partnership. If a partner may be sued for nonpayment or
other breach of the contract, he certainly is privy to the
contract.
Barnes v. Campbell Chain Co., 47 N.C. App. 488, 490, 267 S.E.2d 388, 389-90 (1980)
(internal citations omitted). These fundamental principles of partnership law — that
a privity relationship exists between a partnership and its general partners and that
partners are agents of the partnership and each other — are directly applicable to
the present case.
In addition, our prior caselaw has applied these principles in the res judicata
context, holding that
the principal’s liability is derivative, arising from the acts
of the agent. Accordingly, where the agent has no liability,
there is nothing from which to derive the principal’s
liability under the doctrine. Applying this reasoning, the
appellate courts of this State have repeatedly held that a
final adjudication on the merits that an agent bears no
liability acts as res judicata to prevent an attempt to
pursue derivative claims against the principal.
Cameron Hospitality, Inc. v. Cline Design Associates, PA, __ N.C. App. __, __, 735
S.E.2d 348, 351 (2012) (internal citations omitted), disc. review denied, 366 N.C. 564,
738 S.E.2d 370 (2013).
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
We believe that the real party in interest here in both the Small Claims Action
and the present action is Archimedes. It is clear that the Employment Agreement —
written on Archimedes letterhead — was entered into by Tammy acting in her
capacity as a partner of Archimedes and in furtherance of the partnership’s business
by extending the offer of a teaching position to Plaintiff. It is likewise clear that, in
so acting, she served as an agent of Archimedes, Hull, and Robnet. 5
Similarly, the November Agreement was entered into by Hull in his role as a
partner of Archimedes given that the document provided for Plaintiff’s continued
teaching at Archimedes and further obligated her to perform “end-of-the-year
responsibilities such as issuing the year-end grade reports” for the partnership’s
benefit. For this reason, Hull bound Archimedes, Tammy, and Robnet when he
executed the November Agreement in his capacity as a partner of Archimedes.6
5Indeed, Plaintiff’s complaint appears to acknowledge that the Employment Agreement was
an agreement between her and Archimedes. Her complaint alleges that “[a]mong other things, the
Employment Agreement obligated Archimedes Academy to pay [Plaintiff] $2,500 per month for the
period beginning August 15, 2012 through June 15, 2013.” (Emphasis added).
6 Despite the fact that the November Agreement contains language such as “I, Gary Hull, agree
to pay you . . .” and “I am compelled to pay you this money . . .” and further references an internal
dispute between the partners of Archimedes, there was nothing in the materials properly before the
trial court to refute the proposition that the agreement was nevertheless executed by Hull acting as a
partner in furtherance of the partnership’s business. The November Agreement conveys benefits to
Archimedes in the form of (1) Plaintiff’s agreement to continue teaching at the school; and (2) Plaintiff’s
promise to execute additional tasks at the end of the school year. In addition, immediately below
Hull’s name on the letterhead of the November Agreement is the phrase “Founder, Archimedes
Academy[.]”
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
Therefore, because both the Employment Agreement and the November
Agreement were executed in furtherance of the partnership’s business, Archimedes
was the real party in interest in both actions. Consequently, the ruling in favor of
the Kernses in the Small Claims Action based on the alleged breach of the
Employment Agreement precluded further litigation of claims relating to Plaintiff’s
employment agreements in a subsequent suit against Archimedes, the Kernses, or
Hull.7
For these reasons, we conclude that the third element of res judicata was
satisfied here. Although Plaintiff asserts that she sued Tammy and Robnet in the
Small Claims Action solely in their individual capacities, a privity relationship clearly
existed between Tammy, Robnet, Archimedes, and Hull. Thus, regardless of the
differences in the manner in which Plaintiff has attempted to frame her allegations
and identify the adverse parties in the two actions, it is clear that both lawsuits, in
7While the November Agreement was not expressly raised in the Small Claims Action, it is
well-established that res judicata applies not only to claims actually brought in a prior action but also
to claims that could have been brought in that action. See Housecalls Home Health Care, Inc. v. State,
__ N.C. App. __, __, 738 S.E.2d 753, 758 (“The doctrine [of res judicata] prevents the relitigation of all
matters that were or should have been adjudicated in the prior action. Thus, res judicata not only
bars the relitigation of matters determined in the prior proceeding but also all material and relevant
matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence
could and should have brought forward. All of a party’s damages resulting from a single wrong must
be recovered in a single action.” (internal citations, brackets, and ellipses omitted)), disc. review denied,
366 N.C. 592, 743 S.E.2d 181 (2013). In addition, as noted above, Plaintiff has conceded that the
“identity of claims” element of res judicata is satisfied as between the Small Claims Action and the
present action.
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Opinion of the Court
essence, seek redress of the same wrong — breach of the employment agreements in
effect between her and Archimedes.
The res judicata doctrine therefore bars Plaintiff’s claims in the present action
based on the final judgment in the Small Claims Action. Plaintiff’s argument on this
issue is therefore overruled.
II. Entry of Default
Plaintiff’s final contention is that the trial court erred in dismissing her
complaint as to Hull and Archimedes because the entry of default previously entered
against them had not been set aside prior to the date of the trial court’s 2 May 2014
order dismissing the action in its entirety. This argument also lacks merit.
It is well-established that “[t]he effect of an entry of default is that the
defendant against whom entry of default is made is deemed to have admitted the
allegations in plaintiff’s complaint, and is prohibited from defending on the merits of
the case.” Hartwell v. Mahan, 153 N.C. App. 788, 791, 571 S.E.2d 252, 253-54 (2002)
(citation and quotation marks omitted), disc. review denied, 356 N.C. 671, 577 S.E.2d
118, 118-19 (2003). However, it is only “[w]hen an entry of default is made and the
allegations of the complaint are sufficient to state a claim, [that] the defendant has no
further standing to contest the merits of plaintiff’s right to recover.” Id. at 790, 571
S.E.2d at 253 (emphasis added).
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
Therefore, obtaining an entry of default against a defendant does not eliminate
the plaintiff’s obligation to state a claim upon which relief can be granted under some
legal theory.
A default judgment admits only the allegations
contained within the complaint, and a defendant may still
show that the complaint is insufficient to warrant
plaintiff’s recovery. Lowe’s of Raleigh, Inc. v. Worlds, 4
N.C. App. 293, 295, 166 S.E.2d 517, 518 (1969); accord,
Weft, Inc. v. G.C. Investment Associates, 630 F. Supp. 1138,
1141 (E.D.N.C. 1986), aff’d, 822 F.2d 56 (4th Cir. 1987)
(default not treated as absolute confession by defendant of
plaintiff’s right to recover and court must consider whether
plaintiff’s allegations are sufficient to state claim for relief).
Hunter v. Spaulding, 97 N.C. App. 372, 377, 388 S.E.2d 630, 634 (1990).
Thus, the key question is whether Plaintiff’s complaint in the present action
was sufficient to warrant recovery against Archimedes and Hull. We conclude that
it was not.
“On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of
law, the allegations of the complaint, treated as true, state a claim upon which relief
can be granted.” Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 282,
669 S.E.2d 777, 778 (2008) (citation omitted). The applicability of the res judicata
doctrine is sufficient to warrant the dismissal of an action under Rule 12(b)(6). See
Cline v. McCullen, 148 N.C. App. 147, 149, 557 S.E.2d 588, 590 (2001) (affirming trial
court’s dismissal of claim under Rule 12(b)(6) where privity element of res judicata
was established).
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WOLFE V. ARCHIMEDES ACADEMY
Opinion of the Court
In the present case, as discussed above, the real party in interest in both the
Small Claims Action and the present action was Archimedes. Because Tammy,
Robnet, and Hull were all in privity with Archimedes by nature of their status as
general partners of the partnership, res judicata operates as a bar to Plaintiff’s claims
in the present action as to all of the named Defendants. Therefore, Plaintiff’s
complaint was not sufficient to state a valid claim for relief against Hull or
Archimedes. For this reason, the prior entry of default against these two defendants
did not preclude the trial court from dismissing the claims asserted by Plaintiff
against them.
Conclusion
For the reasons stated above, the order of the trial court is affirmed.
AFFIRMED.
Judges STROUD and DILLON concur.
Report per Rule 30(e).
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