Health Management Associates, Inc. v. Roger D. Weiner

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-IA-01435-SCT
HEALTH MANAGEMENT ASSOCIATES, INC.,
CLARKSDALE HMA PHYSICIAN
MANAGEMENT, LLC, CLARKSDALE HMA, LLC
INDIVIDUALLY AND d/b/a NORTHWEST
MISSISSIPPI MEDICAL CENTER, MARK
CATON, REGINA ROBINSON, MATTHEW
TORMEY AND TEENA ROWE
v.
ROGER WEINER, M.D.
DATE OF JUDGMENT: 10/12/2017
TRIAL JUDGE: HON. LINDA F. COLEMAN
TRIAL COURT ATTORNEYS: RALPH E. CHAPMAN
DANA J. SWAN
ANDY LOWRY
JAMIE F. JACKS
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ANDY LOWRY
THOMAS L. KIRKLAND, JR.
BILL LUCKETT, JR.
JAMIE F. JACKS
GERALD H. JACKS
ATTORNEYS FOR APPELLEE: DANA J. SWAN
H. SCOT SPRAGINS
LAWRENCE J. TUCKER, JR.
NATURE OF THE CASE: CIVIL- TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 03/07/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. Dr. Roger Weiner brought a malicious-prosecution claim against Health Management
Associates Inc. and Teena Rowe. Dr. Roger Weiner based his malicious-prosecution claim
on the federal district court’s dismissal of his criminal prosecution. The court had dismissed
the case for lack of jurisdiction. Health Management Associates Inc. and Teena Rowe filed
a motion for partial summary judgment on the malicious-prosecution claim, arguing that a
jurisdictional dismissal is not a favorable termination for the purposes of a malicious-
prosecution claim. The trial court agreed. Later, with a new trial judge on the bench, Dr.
Weiner sought reconsideration. The trial court reconsidered and reversed the former judge’s
order. Health Management Associates Inc. and Teena Rowe appealed. The Court reverses
and remands the judgment of the trial court, holding that it erred in denying the partial
summary-judgment motion.
STATEMENT OF FACTS
¶2. Dr. Roger Weiner was prosecuted in federal district court for violating the Mann Act.
See 18 U.S.C. § 2422(a) (2012). Dr. Weiner sought dismissal of the charges, alleging that
the interstate-commerce element was not met. The district court dismissed the charges for
lack of federal jurisdiction, stating that “the federal nexus to interstate commerce necessary
to create federal jurisdiction simply is not present in the case at bar.” The order stated that
dismissal was jurisdictional and that “[i]n this case the court is not ruling on whether
prostitution was never discussed and would never have been engaged in. If state or local
prosecutorial authorities want to pursue a state law prosecution of solicitation of prostitution,
that is their prerogative.”
2
¶3. Subsequently, Dr. Weiner brought a civil suit against Health Management Associates
Inc. (HMA) and Teena Rowe.1 The suit alleged a number of claims, including a claim for
malicious prosecution. HMA and Rowe filed a motion for partial summary judgment on the
malicious-prosecution claim. HMA and Rowe argued that the malicious-prosecution claim
should be dismissed because a dismissal for lack of jurisdiction of the underlying criminal
prosecution did not amount to a “favorable termination” under the elements of a malicious-
prosecution claim.
¶4. The trial judge granted HMA and Rowe’s motion for partial summary judgment. The
trial judge then denied Dr. Weiner’s motion for reconsideration and certified the order
granting partial summary judgment as a final order.
¶5. Dr. Weiner filed a petition for interlocutory appeal and a direct appeal on the grant of
the partial summary-judgment motion. The Court denied the petition for interlocutory
appeal, holding that a Mississippi Rule of Civil Procedure 54(b) certification had been
entered. Subsequently, HMA and Rowe filed a motion to dismiss the direct appeal, arguing
that the order had been improperly certified as a final order under Rule 54(b). The Court
granted the motion and dismissed the appeal.
¶6. Thereafter, the trial judge assigned to the case retired, and a new trial judge was
assigned to the case. Dr. Weiner filed a “Motion to Reconsider the Former Trial Court[’]s
Granting of HMA Defendants’ Motion for Partial Summary Judgment.”2 Under Rule 54(b)
1
Teena Rowe did not file her own briefs, but she joined and adopted the entire
substance of HMA’s brief and HMA’s reply brief.
2
Dr. Weiner’s second motion for reconsideration was filed in May 2017. The first trial
judge had granted HMA and Rowe’s motion for partial summary judgment nearly six years
3
of the Mississippi Rules of Civil Procedure, the new trial judge granted the motion to
reconsider and denied HMA and Rowe’s partial summary-judgment motion on the issue of
malicious prosecution. She stated that the prior federal case was decided in Dr. Weiner’s
favor because the order of dismissal “went to the substantive elements of the crime of the
Mann Act.”
¶7. HMA and Rowe filed an interlocutory appeal. A panel of the court granted
permission for the appeal.
STATEMENT OF THE ISSUES
¶8. The parties argue two general issues regarding whether the underlying termination
supports a claim for malicious prosecution and whether the grant of the motion to reconsider
was proper. The Court considers only one issue, as it is dispositive. The Court restyles the
issue as follows:
Whether the underlying termination of the federal criminal action constitutes
a favorable termination for the purposes of a malicious- prosecution claim.
ANALYSIS
Whether the underlying termination of the federal criminal action
constitutes a favorable termination for the purposes of a malicious-
prosecution claim.
A. Standard of Review
¶9. The trial court granted Dr. Weiner’s motion to reconsider. The trial court then denied
HMA’s motion for partial summary judgment on the claim of malicious prosecution.
before, in November 2011.
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¶10. The grant or denial of a motion for summary judgment is considered de novo.
Bearden v. BellSouth Telecomms., Inc., 29 So. 3d 761, 764 (Miss. 2010). Summary
judgment is appropriate if the record shows “no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56. “In
making such a determination, the evidence must be viewed in the light most favorable to the
nonmoving party.” Id.; Bearden, 29 So. 3d at 764 (internal quotation omitted). Further, to
the extent that questions of law are at issue, the standard of review is de novo. Barlow v.
Miss. State Bd. of Chiropractic Exam’rs, 233 So. 3d 223, 227 (Miss. 2017).
B. Whether the underlying dismissal for lack of jurisdiction of the federal
criminal action constitutes a favorable termination for the purposes of
the malicious-prosecution claim.
¶11. Dr. Weiner maintains that the underlying dismissal for lack of jurisdiction of the
federal criminal action constitutes a favorable termination for the purposes of the malicious-
prosecution claim. HMA and Rowe consider the termination procedural and, therefore,
conclude that it does not constitute a favorable termination for the purposes of the malicious-
prosecution claim. For the reasons discussed below, the Court agrees with HMA and Rowe.
¶12. In Bearden, in considering an issue of first impression for Mississippi, the Court held
that a dismissal of the underlying criminal action for a lack of jurisdiction is not a favorable
determination for malicious-prosecution purposes. Bearden, 29 So. 3d at 761. Before
reaching its holding, the Bearden Court reviewed the competing interests in malicious-
prosecution cases.
¶13. First, it considered “[t]he public policy interest in crime prevention [which] insists that
private citizens, when aiding law enforcement personnel, ought to be protected against the
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prejudice that is likely to arise from the termination of the prosecution in favor of the
accused.” Id. at 765 (quoting Benjamin v. Hooper Elec. Supply Co., Inc., 568 So. 2d 1182,
1187-1188 (Miss. 1990)). Second, it considered the interest “which protects individuals from
being wrongly accused of criminal behavior which results in unjustified and oppressive
litigation of criminal charges.” Id.
¶14. The Bearden Court also specifically stated that the dismissal must “reflect on the
merits of a criminal action or the innocence of the accused,” noting that “[t]he record is
totally void of any indication of why the justice court concluded that it had no jurisdiction.”
Bearden, 29 So. 3d at 764, 766. Further, it held that “the dismissal of the case for lack of
jurisdiction does not reflect on the merits of the criminal case against Bearden.” Id. at 766.
¶15. Dr. Weiner maintains that, although the criminal dismissal here was jurisdictional,
Bearden is distinguishable. Stating that federal courts are courts of limited jurisdiction, Dr.
Weiner concludes that, unlike in state court, if a federal court lacks subject-matter
jurisdiction, no federal crime exists. On the other hand, he claims that in state court, if a
court lacks jurisdiction, the criminal charge may be brought elsewhere. HMA and Rowe
argue that the jurisdictional requirement to federal crimes is merely a jurisdictional hook.
¶16. Dr. Weiner is correct to note the fundamental precept that “federal courts are courts
of limited jurisdiction. They possess only that power authorized by Constitution and statute
. . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673,
1675, 128 L. Ed. 2d 391 (1994). Thus, federal criminal laws differ from state criminal laws
in that “state crimes do not contain interstate commerce elements because a State does not
need such a jurisdictional hook.” Torres v. Lynch, 136 S. Ct. 1619, 1625, 194 L. Ed. 2d 7376
(2016). Here, the Mann Act required interstate commerce as a jurisdictional requirement.
See 18 U.S.C. § 2422(a). The district court dismissed the criminal action against Dr. Weiner,
citing a lack of jurisdiction due to the missing element of interstate commerce.
¶17. Although Bearden addressed dismissal for lack of jurisdiction, it did so for a state
crime, not a federal crime. Here, the question for the Court is also one of first impression:
whether the dismissal for lack of jurisdiction for a federal crime in federal court is a
termination in Dr. Weiner’s favor for the purposes of malicious prosecution. The instant
issue presents an issue of law, which the Court reviews de novo. See Barlow, 233 So. 3d at
227.
¶18. The parties cite Torres, arguing that it supports their arguments. The issue in Torres
is notably different than the issue here. The Supreme Court was faced with determining
whether a state crime can count as an aggravated felony under the Immigration and
Nationality Act when the only difference in the state-law offense and the federal offense is
the interstate-commerce element. Torres, 136 S. Ct. at 1622. In other words, the issue was
whether the jurisdictional element precluded the state crime from being considered an
aggravated felony. The Supreme Court determined that the jurisdictional element was
immaterial and that a state offense, which otherwise mirrors the federal offense, constituted
an aggravated felony under the Act. Id. Despite the factual differences in Torres, the Court
agrees with the parties that Torres provides guidance regarding the effect of a jurisdictional
element of a federal crime.
¶19. Dr. Weiner points out that Torres refers to federal jurisdiction as an element of the
crime. Dr. Weiner states that the Torres Court noted that both kinds of elements must be
7
proved to a jury beyond a reasonable doubt. See Torres, 136 S. Ct. at 1630. Dr. Weiner then
interpreted Torres to conclude, “If neither is proven beyond a reasonable [doubt], the accused
is not guilty!”
¶20. The Torres Court did state that both elements must be proved beyond a reasonable
doubt, but it went on to provide that the two types of elements are not the same. It said,
Both kinds of elements must be proved to a jury beyond a reasonable doubt;
and because that is so, both may play a real role in a criminal case. But still,
they are not created equal for every purpose. To the contrary, courts have
often recognized—including when comparing federal and state offenses—that
Congress uses substantive and jurisdictional elements for different reasons and
does not expect them to receive identical treatment.
Torres, 136 S. Ct. at 1630. The Court then stated that the mens rea requirement is not needed
for a finding under the jurisdictional element. Id. at 1630-31. Further, it cited United States
v. Yermian, 468 U.S. 63, 68, 104 S. Ct. 2936, 2939, 82 L. Ed. 2d 53 (1984) for the point that
“[j]urisdictional language need not contain the same culpability requirement as other
elements of the offense.” Torres, 136 S. Ct. at 1631. The Torres Court also held that the
jurisdictional element is “properly ignored when determining if a state offense counts as an
aggravated felony . . . .” Id. at 1634. Similarly, for the Mann Act, the mens rea requirement
for the interstate-commerce element is not required. United States v. Hattaway, 740 F.2d
1419, 1428 (7th Cir. 1984) (“The defendant’s knowledge of whether a state line has been
crossed thus is irrelevant to whether he has violated the Mann Act . . . .”).
¶21. The holdings of Torres and Hattaway illustrate that the jurisdictional element of a
federal crime does not reflect upon culpability. Stated differently, a dismissal for lack of
jurisdiction is not a dismissal on the merits of the crime. Thus, Torres and Hattaway offer
8
guidance that a jurisdictional dismissal—even if it is in federal court—is not a favorable
determination for purposes of a malicious-prosecution claim. See Bearden, 29 So. 3d at 764
(The dismissal must “reflect on the merits of a criminal action or the innocence of the
accused.”). However, due to the fact that the instant issue is one of first impression in
Mississippi and due to the fact that the parties cite a number of additional cases, the analysis
continues.
¶22. Dr. Weiner cites United States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001),
overruled on other grounds by United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152
L. Ed. 2d 860 (2002), for the point that “[i]f the Government alleged, but failed to prove
those elements, we would not say the district court was deprived of subject matter
jurisdiction to hear the case; rather we would say Defendant was entitled to acquittal.” To
understand the rule that can be garnered from Prentiss, the Court looks to the facts and issue
in Prentiss and its guiding authority.
¶23. In Prentiss, the issue was whether the government properly had alleged in the
indictment the Indian and non-Indian statuses of the defendant and the victim such that
federal jurisdiction was triggered. Id. at 974-75. Notably, however, a distinction exists
between subject-matter jurisdiction to hear the case and the ultimate dismissal due to the lack
of a jurisdictional element. Prentiss, 256 F.3d at 982. Thus, in concluding that the
indictment’s failure to allege the jurisdictional element did not affect the court’s ability to
hear the case, the Prentiss Court stated that the defendant would be entitled to an acquittal
if the government failed to prove the jurisdictional element. Id. at 982–83. While Prentiss’s
mention of acquittal does seem to reflect upon innocence, it does not sway the Court.
9
¶24. First, the issue of Prentiss is distinguishable from the instant issue. Prentiss was not
specifically determining if the jurisdictional elements reflect on the merits of the crime.
Second, Prentiss’s acquittal pronouncement does not fit with additional federal law on
whether jurisdictional elements reflect on the merits. See Torres, 136 S. Ct. at 1631. Third,
Prentiss’s limited pronouncement makes more sense when considered alongside the case
Prentiss cited: United States v. Martin, 147 F.3d 529 (7th Cir. 1998).
¶25. Like in Prentiss, Martin noted a distinction between the subject-matter jurisdiction
to hear the case and the jurisdictional element. Martin, 147 F.3d at 532 (“[The jurisdictional
element] is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction,
i.e., a court’s constitutional or statutory power to adjudicate a case, here authorized by 18
U.S.C. § 3231.”). Further, Martin stated that the interstate-commerce element is
“‘jurisdictional’ only in the shorthand sense that without that nexus, there can be no federal
crime . . . .” Id. at 531–32 (citing Kanar v. United States, 118 F.3d 527, 530 (7th Cir.
1997)); see also United States v. Sealed Appellant, 526 F.3d 241, 243 (5th Cir. 2008).
Martin provided this point in order to conclude the following: “Even if the government fails
to establish the connection to interstate commerce, the district court is not deprived of
jurisdiction to hear the case.” Martin, 147 F.3d at 532. Notably, Martin was distinguishable
from Prentiss. The issue in Martin was whether a defendant could reopen a guilty plea on
the ground that the government had failed to prove the jurisdictional element. Id. at 529.
However, the pronouncements in both Prentiss and Martin are focused on determining the
same central issue: whether a federal court has jurisdiction to decide a question of
jurisdiction.
10
¶26. Here, no similar central issue exists. The parties do not dispute that the federal district
court had subject-matter jurisdiction to rule that the government had failed to meet the
interstate-commerce, jurisdictional element. The issue is whether the dismissal due to the
lack of the jurisdictional element constitutes a favorable termination for the purposes of a
malicious-prosecution claim. Thus, Prentiss’s and Martin’s pronouncements do nothing to
add to or change the need for a determination on the merits.
¶27. In fact, if anything, Martin provides guidance that falls along the same lines of the
guidance provided by Torres. Martin stated,
This court has recognized for decades that, despite defendants’ tendency to
confuse facts essential to be alleged as elements of the crime with
jurisdictional requirements arising as a matter of law, once a defendant pleads
guilty in court which has jurisdiction of the subject matter and of the
defendant, as did the court in the instant case, the court’s judgment cannot be
assailed on grounds that the government has not met its burden of proving
so-called jurisdictional facts.
Id. at 532 (emphasis added) (internal quotations omitted) (citing United States v. Hoyland,
264 F.2d 346, 352–53 (7th Cir. 1959); La Fever v. United States, 279 F.2d 833, 834 (7th Cir.
1960)). The above-quoted language in Martin illustrates that an inherent difference exists
in elements of the crime and the jurisdictional element. Combined with Torres’s guidance
that “[j]urisdictional language need not contain the same culpability requirement as other
elements of the offense,” the Court concludes that, although the jurisdictional element is an
element of the federal crime, it is not an element that reflects upon the merits. Torres, 136
S. Ct. at 1631.
¶28. As stated above, Bearden specifically provided that the dismissal must “reflect on the
merits of a criminal action or the innocence of the accused” to be considered a favorable
11
termination. Bearden, 29 So. 3d 761 at 764. Further, holding that a dismissal on the
jurisdictional element in federal court does not reflect on the merits is consistent with
caselaw from around the country. In Bearden, the Court looked to Hatch v. Davis, 102 P.3d
774, 776 (Utah 2004). Notably, the underlying criminal case in Hatch dealt with a dismissal
in federal court for a lack of jurisdiction. Hatch, 102 P.3d at 776. Hatch considered that a
jurisdictional dismissal does not reflect on the merits, and it concluded that “a defendant is
required to have the underlying action resolved on the merits in his or her favor prior to
initiating a claim for wrongful use of civil proceedings.” Id. at 780-81. More recently than
Martin, the United States Court of Appeals for the Seventh Circuit has stated,
Although not “mere surplusage,” a jurisdictional element does little more than
ensure that the conduct regulated in a federal criminal statute is within the
federal government’s limited power to proscribe, thereby preventing the
federal government from usurping power from the “States [who] possess
primary authority for defining and enforcing the criminal law.”
Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 502 (7th Cir. 2008) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). Mukasey
went on to state that “[t]he only purpose of the commerce element . . . is to obtain federal
jurisdiction over the crime.” Mukasey, 518 F.3d at 502.
¶29. Further, the United States Court of Appeals for the Second Circuit has addressed the
favorable-termination element of a malicious-prosecution claim in Murphy v. Lynn, 118
F.3d 938, 948 (2d Cir. 1997). “Where the prosecution did not result in an acquittal, it is
deemed to have ended in favor of the accused . . . only when its final disposition is such as
to indicate the innocence of the accused.” Murphy, 118 F.3d at 948 (emphasis added).
Murphy went on to state, “Certain types of dispositions that do not result from adjudication
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of the merits have generally been held not sufficiently favorable to the accused to be
indicative of innocence. These include dismissals for lack of subject matter jurisdiction.” Id.;
see also Fish v. Watkins, 298 F. App’x 594, 597 (9th Cir. 2008) (internal quotation omitted)
(“A judgment on the merits is a favorable termination, while a procedural or technical
dismissal is not.”)
¶30. Turning to the instant case, the trial court pointed out that the federal district court’s
order “went to the substantive elements of the crime of the Mann Act.” While true that the
order did entertain substantive elements of the Mann Act, the entertainment constituted mere
dicta; the holding addressed only jurisdiction. The federal district court held, “For the
foregoing reasons, the court finds that the defendant’s motion to dismiss for lack of federal
jurisdiction should be and the same is hereby GRANTED.” Specifically, the order also stated
that “the government is confusing the elements required to prove the [elements] of an
‘attempted crime’ with the subject matter jurisdictional requirements for the court initially
to acquire jurisdiction even to hear the case.’” Finally, the order provided that a state-court
action could be brought, albeit without the federal jurisdictional requirement.
¶31. Under a de novo review of the issues of law and summary judgment—specifically
considering Bearden and additional applicable caselaw—the Court holds that the instant
jurisdictional dismissal does not reflect on the merits of the crime. In order to constitute a
favorable termination for the purposes of a malicious-prosecution case, the dismissal must
reflect on the merits of the crime. Bearden, 29 So. 3d 761 at 764. Thus, the trial court should
not have denied the motion for partial summary judgment.
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C. Whether the government abandoned its prosecution of Dr. Weiner,
creating a favorable termination for the purposes of the malicious-
prosecution claim.
¶32. Citing Mississippi caselaw, Dr. Weiner makes an alternative argument that a favorable
termination occurred when the government abandoned its prosecution by not appealing the
federal district court’s dismissal. The Court considers the instant issue de novo because it
presents an issue of law about whether a failure to take an appeal on a jurisdictional dismissal
amounts to an abandonment under Mississippi caselaw. See Barlow, 233 So. 3d at 227.
¶33. In Joiner Insurance Agency, Inc. v. Principal Casualty Insurance Co., 684 So. 2d
1242 (Miss. 1996), the Court considered abandonment for the purposes of satisfying the
termination element of a malicious prosecution. Specifically, the Court stated that “if the
facts or circumstances underlying the dismissal without prejudice demonstrated that the claim
was abandoned because the plaintiff could not prevail on the merits, then the dismissal was
a final termination” for malicious-prosecution purposes. Joiner Ins., 684 So. 2d at 1245
(emphasis added).
¶34. As analyzed above, a dismissal for lack of jurisdiction, even in federal court, does not
amount to a dismissal on the merits. Joiner Insurance shows that abandonment in
Mississippi (while not requiring dismissal with prejudice) requires the facts and
circumstances of the dismissal to illustrate a failure to prevail on the merits. See Joiner Ins.,
684 So. 2d at 1245. Therefore, Joiner Insurance does not support Dr. Weiner’s argument.
¶35. Dr. Weiner also cites Lochridge v. Pioneer Health Services of Monroe County, Inc.,
86 So. 3d 942 (Miss. Ct. App. 2012). In considering whether the malicious-prosecution case
had accrued, the Lochridge Court determined that in order to accrue, the termination element
14
of a malicious-prosecution claim does not require “an appealable judgment or dismissal with
prejudice.” Lochridge, 86 So. 3d at 946 (citing Joiner Ins., 684 So. 2d at 1244). The
Lochridge Court looked to the facts of the case to determine that abandonment had occurred.
Specifically, in Lochridge, Pioneer Health Services submitted a letter to the district attorney
stating that it did “not wish to pursue criminal charges against Linda Lochridge at this time.”
Lochridge, 86 So. 3d at 946.
¶36. In Lochridge, specific proof of abandonment was provided. Aside from arguing that
the government failed to take an appeal, Dr. Weiner provides no such factually similar
information. Further, Lochridge does not address whether the failure to appeal amounts to
an abandonment, and most importantly, Lochridge does not change the rule that the dismissal
must reflect the merits. See Joiner Ins., 684 So. 2d at 1245. Thus, Lochridge is
distinguishable from the instant case and does not provide support for Dr. Weiner’s
argument.
¶37. Dr. Weiner also cites Hyer v. Caruso, 102 So. 3d 1232 (Miss. Ct. App. 2012). In
Hyer, the charges against Caruso “were remanded to the file.” Id. at 1236. Once again, Dr.
Weiner presents no such factually similar situation to garner guidance or support from Hyer.
¶38. In sum, when a dismissal does address the merits, a failure of the government to
appeal does not amount to an abandonment. Therefore, the instant issue does not bar
summary judgment.
15
CONCLUSION
¶39. Under a de novo review, the trial court erred in denying the partial summary-judgment
motion. The Court reverses the judgment and remands the case with instructions for the trial
court to enter an order granting partial summary judgment in favor of HMA and Rowe.
¶40. REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, ISHEE AND
GRIFFIS, JJ., CONCUR. COLEMAN AND MAXWELL, JJ., NOT
PARTICIPATING.
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