Fort v. Cnty. of Cumberland

NO. COA14-93
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
SAMUEL and DORIS FORT, JULIA
KATHERINE FAIRCLOTH, RAEFORD B.
LOCKAMY, II, OK FARMS OF CEDAR
CREEK, LLC, and ARNOLD DREW SMITH,
Petitioners,
v. Cumberland County
No. 12 CVS 8440
COUNTY OF CUMBERLAND, North
Carolina, and TIGERSWAN, INC.,
Respondents.
Appeal by respondents from order entered 23 October 2013 by
Judge C. Winston Gilchrist in Cumberland County Superior Court.
Heard in the Court of Appeals 4 June 2014.
Currin & Currin, by Robin T. Currin and George B. Currin,
for petitioners.
Cumberland County Attorney’s Office, by Robert A. Hasty,
Jr., for respondent-appellant County of Cumberland.
Parker Poe Adams & Bernstein LLP, by Charles C. Meeker, for
respondent-appellant TigerSwan, Inc.
McCULLOUGH, Judge.
Respondents TigerSwan, Inc., and Cumberland County appeal
an order of the trial court, reversing a decision made by
Cumberland County’s Board of Adjustment that the TigerSwan
facility is permitted in the A1 Zoning District and remanding
-2-
with instructions to revoke the site plan approval and zoning
permit for the TigerSwan facility. Based on the reasons stated
herein, we reverse the order of the trial court.
I. Background
The Cumberland County zoning ordinance at issue in this
appeal was originally adopted on 3 July 1972, revised 20 June
2005, and amended on 18 April 2011 (“the zoning ordinance”).
Article IV, Section 402, entitled “Uses by Right” provides as
follows:
All uses of property are allowed as a use by
right except where this ordinance specifies
otherwise or where this ordinance
specifically prohibits the use. In the
event, a use of property is proposed that is
not addressed by the terms of this
ordinance, the minimum ordinance standards
for the use addressed by this ordinance that
is most closely related to the land use
impacts of the proposed use shall apply.
Article IV, Section 403 of the zoning ordinance includes a
“Use Matrix” which enumerates permitted and special land uses,
as well as some land uses allowed only in a conditional zoning
district. The following land uses are enumerated in the “Use
Matrix” and are pertinent to the case before us:
“RECREATION/AMUS[E]MENT OUTDOOR (with mechanized vehicle
operations) conducted outside building for profit, not otherwise
listed & not regulated by Sec. 924” (“recreation/amusement”)
-3-
which is a permitted use in the A1 zoning district; “SCHOOLS,
public, private, elementary or secondary” (“public or private
school”) which is a permitted use in the A1 zoning district; and
a “SCHOOL, business and commercial for nurses or other medically
oriented professions, trade, vocational & fine arts”
(“vocational school”) which is not a permitted use in the A1
zoning district.
TigerSwan, Inc. (“TigerSwan”) submitted a site plan
application to the County of Cumberland (“County”) requesting
approval for a “Training Collaboration Center” (“the TigerSwan
facility”). The TigerSwan facility leases a 978 acre site which
sits on a 1,521 acre parcel. The entire site is located in the
A1 Agricultural District of the County. Evidence in the record
established that the TigerSwan facility would be designed to
provide weapons training and firearm safety primarily to the
government, military, law enforcement, and corporate
organizations. One day a week, the TigerSwan facility would be
open to the public. Ninety-five (95%) percent of the activity
at the TigerSwan facility would occur on the outdoor gun ranges.
TigerSwan intends to have a pro-shop, buildings for instruction,
administrative offices, and restrooms.
-4-
On 9 April 2012, the County’s Planning and Inspections
Department (“the Planning Department”) issued a site plan
approval for the TigerSwan facility. The Planning Department
held that the TigerSwan facility was permitted as a
recreation/amusement land use. The Planning Department also
issued a zoning permit to TigerSwan on 17 April 2012.
Petitioners Samuel and Doris Fort, Julia Katherine
Faircloth, Raeford B. Lockamy, II, OK Farms of Cedar Creek, LLC,
and Arnold Drew Smith appealed the issuance of the permit to the
Cumberland County Board of Adjustment (“the Board”).
Specifically, petitioners challenged the approval of the
TigerSwan facility by arguing that the County’s zoning
administrator’s classification of the TigerSwan facility as a
recreation/amusement land use was erroneous. Petitioners argued
that the County had never taken the position that the TigerSwan
facility be permitted as recreation/amusement and that the
Planning Department’s determination was in direct conflict with
the County’s previous position, as set forth in Fort v. County
of Cumberland, __ N.C. App. __, 721 S.E.2d 350 (2012) (“Fort”),
that the TigerSwan facility be classified as a “private school.”
-5-
Petitioners relied on our Court’s holding in Fort. In Fort,
TigerSwan sought approval of a “firearms training facility.”
Id. at __, 721 S.E.2d at 352. Our Court found that TigerSwan
[i]ntends to provide instruction to
military, law enforcement, and security
personnel in topics such as weapons
training, urban warfare, convoy security
operations, and “[w]arrior [c]ombatives” in
order to “teach, coach, and mentor
tomorrow’s soldiers.” TigerSwan also
intends to provide courses on topics such as
first aid, firearm and hunting safety, and
foreign languages for adults and children.
Id. The site plan included multiple firing ranges in addition
to classroom facilities. Id. The Cumberland County zoning
administrator approved TigerSwan’s site plan by classifying the
business as a “private school.” Id. Petitioners Samuel and
Doris Fort, Julia Katherine Faircloth, and Raeford B. Lockamy,
II, appealed the approval of the site plan and the Board
affirmed the decision of the zoning administrator. Id. at __,
721 S.E.2d at 352-53. After the Fort petitioners appealed to
the superior court, the trial court held that the training
facility was a permitted use in the A1 zoning district. Id. at
__, 721 S.E.2d at 353. The Fort petitioners appealed to our
Court. Under section 402 of the then-existing zoning ordinance1,
1
This case was decided under the version of the ordinance prior
to the 18 April 2011 amendment: Section 402 entitled, “Uses by
-6-
our Court held that the TigerSwan facility was not a “private
school” and that the TigerSwan facility was not a permitted use
in the A1 zoning district. Id. at __, 721 S.E.2d 354. Using
rules of statutory construction, our Court reasoned that the
“schools, public, private, elementary or secondary” category in
the zoning ordinance limited permissible schools, private and
public, to elementary and secondary education. “[T]he inclusion
of ‘elementary or secondary’ in the description of permissible
schools was intended to exclude other types of ‘SCHOOLS,’
whether they be private or public.” Id. at __, 721 S.E.2d at
355. Our Court stated that “[w]ithout deciding whether the
Training Facility qualifies as either a trade or vocational
school, we conclude that the Training Facility is not a
permitted use as it is not a public or private, elementary or
secondary school.” Id.
On 10 July 2012, the Board held a hearing on the issue of
whether “the staff of the Cumberland County Planning Department
erred by failing to classify the use of the site for the
[TigerSwan facility] as a vocational school within one of the
Right” provided that “[a]ll uses of property are prohibited
except those that are permitted or otherwise allowed under the
terms of this ordinance.”
-7-
School land uses.” The Board entered an order that made the
following pertinent findings:
3. The training offered at the TigerSwan
facility is in the nature of skill level
improvement.
4. Approximately 80-90% of the activities
conducted at the TigerSwan facility occur
outside on the firing ranges, and the
training conducted in the meeting rooms
is incidental to the firing of pistols
and rifles. Twenty percent (20%) of the
activity at the TigerSwan facility is
recreational in nature and involves
sportsmen and families.
. . . .
7. There is no classification of firing
ranges in the Cumberland County Zoning
Ordinance.
. . . .
10. Before the submission of the request for
a permit for the TigerSwan facility,
Planning Director Tom Lloyd issued a
directive to staff that any outdoor
firing range would be considered as the
classified use [recreation/amusement] for
the reason that he believed this was the
classified use under the ordinance which
created the most similar land use
impacts.
11. The Planning Department classified the
TigerSwan facility in accordance with the
Planning Director’s directive and issued
the subject permit. . . .
-8-
The Board concluded that the TigerSwan facility did not fall
within the classification of a vocational school. The Board
also concluded that the decision of the Planning Department “to
consider the TigerSwan facility to be an outdoor firing range
most similar to the classified use for outdoor
recreation[/amusement] was reasonable and was made in
conformance with the provision” of the zoning ordinance. The
Board dismissed petitioners’ appeal and affirmed the issuance of
the permit for the TigerSwan facility.
Petitioners then appealed the order of the Board to the
Cumberland County Superior Court by filing a petition for writ
of certiorari on 25 September 2012.
Following a hearing held at the 26 August 2013 session of
Cumberland County Superior Court on petitioners’ writ of
certiorari, the trial court entered an order on 23 October 2013.
The trial court found that the Board’s decision “must be
reversed and the case remanded to the Board . . . with
instructions to revoke the Site Plan and Zoning Permit for the
TigerSwan Facility issued on April 9, 2012 and April 17, 2012.”
The trial court’s decision was based on the following, in
pertinent part:
4. In its Table of Permitted Uses, the
Zoning Ordinance sets forth the uses that
-9-
are allowed in the A1 District and those
which are not. [Vocational schools] are
not permitted in the A1 District. The
term vocational school is not defined in
the Zoning Ordinance.
5. [Recreation/Amusement] is a permitted use
in the A1 District. . . .
6. The Zoning Ordinance in effect at the
time of the approvals by the Zoning
Administrator (the “Zoning Ordinance”)
does not reference a use called a “firing
range” or “shooting range,” and neither
of those terms are defined in the Zoning
Ordinance.
. . . .
8. The decisions to approve the Site Plan
and Zoning Permit were based upon the
Zoning Administrator’s determination that
the TigerSwan Facility was an outdoor
firing range, which is not addressed by
the Zoning Ordinance. The Zoning
Administrator then determined, pursuant
to Zoning Ordinance Section 402, that the
TigerSwan Facility should be regulated as
[recreation/amusement] because the land
use impacts of the TigerSwan Facility
were most closely related to that use.
. . . .
13. Based on the Court’s de novo review of
the whole record . . . this Court
concludes that the TigerSwan Facility is
a [vocational school], as set out in the
Zoning Ordinance and is, therefore,
prohibited in the A1 District. The
evidence in the Record established that
the TigerSwan Facility fits within the
definition of a vocational school and its
purposes and activities are consistent
-10-
with those of a vocational school as set
out in the Zoning Ordinance. The Board
of Adjustment, thus, erred in affirming
the decision of the Zoning Administrator
which determined the TigerSwan Facility
was an outdoor firing range, because it
is not. The TigerSwan Facility is a
vocational school under the Zoning
Ordinance. The fact that TigerSwan
operates a recreational firing range one
day a week and uses a firing range for
its courses does not change the nature of
the use, which the Record establishes is
to provide instruction to military, law
enforcement and security personnel for
use in their occupations. See Fort v.
County of Cumberland, __ N.C. App. __,
__, 721 S.E.2d 350, 356 (2012) (while
some uses offered by TigerSwan may be
permitted, “the inclusion of permitted
uses cannot offset the uses prohibited by
the [Zoning] Ordinance.”).
14. Because the TigerSwan Facility is a
vocational school, which is a use that is
specifically prohibited in the A1
District, the Zoning Administrator had no
authority under the Zoning Ordinance
Section 402 to determine that the
TigerSwan Facility should be regulated
according to the minimum standards for
the use with the most closely related
land use impacts. Regardless, however,
and in the alternative, there was no
competent evidence in the Record that
could support the determination that the
TigerSwan Facility’s impacts were most
similar to [Recreation/Amusement].
Respondents County of Cumberland and TigerSwan filed notice
of appeal on 15 November 2013 from the 23 October 2013 order of
the trial court.
-11-
II. Standard of Review
It is well established that “[j]udicial review of the
decisions of a municipal board of adjustment is authorized by
N.C. Gen. Stat. § 160A-388(e2), which provides, in pertinent
part, that ‘[e]very decision of the board shall be subject to
review by the superior court by proceedings in the nature of
certiorari.’” Four Seasons Mgmt. Servs. v. Town of Wrightsville
Beach, 205 N.C. App. 65, 75, 695 S.E.2d 456, 462 (2010). Upon
review of a decision from a Board of Adjustment, the trial court
should:
(1) review the record for errors of law, (2)
ensure that procedures specified by law in
both statute and ordinance are followed, (3)
ensure that appropriate due process rights
of the petitioner are protected, including
the right to offer evidence, cross-examine
witnesses, and inspect documents, (4) ensure
that the decision is supported by competent,
material, and substantial evidence in the
whole record, and (5) ensure that the
decision is not arbitrary and capricious.
CRLP Durham, LP v. Durham City/County Bd. of Adjustment, 210
N.C. App. 203, 207, 706 S.E.2d 317, 319-320 (2011) (citations
and quotation marks omitted).
“If a petitioner contends the Board’s decision was based on
an error of law, de novo review is proper.” Four Seasons, 205
N.C. App. at 75, 695 S.E.2d at 462 (citations and quotation
-12-
marks omitted). “Under de novo review a reviewing court
considers the case anew and may freely substitute its own
interpretation of an ordinance for a board of adjustment’s
conclusions of law.” Morris Communs. Corp v. City of Bessemer,
365 N.C. 152, 156, 712 S.E.2d 868, 871 (2011) (citation
omitted). “However, if the petitioner contends the Board’s
decision was not supported by the evidence or was arbitrary and
capricious, then the reviewing court must apply the ‘whole
record’ test.” Four Seasons, 205 N.C. App. at 75, 695 S.E.2d at
462 (citations omitted). “When utilizing the whole record test,
. . . the reviewing court must examine all competent evidence
(the whole record) in order to determine whether the agency
decision is supported by substantial evidence.” Templeton
Properties v. Town of Boone, __ N.C. App. __, __, __ S.E.2d __,
__ (June 3, 2014) (No. COA13-1274).
“When this Court reviews a superior court’s order which
reviewed a zoning board’s decision, we examine the order to:
(1) determin[e] whether the [superior] court exercised the
appropriate scope of review and, if appropriate, (2) decid[e]
whether the court did so properly.” CRLP Durham, 210 N.C. App.
at 207, 706 S.E.2d at 320 (citation omitted).
III. Discussion
-13-
On appeal, respondents argue that the trial court erred by
(A) concluding, in paragraphs 13 and 14 of the 23 October 2013
order, that TigerSwan’s facility is a vocational school as set
out in the zoning ordinance and by (B) concluding in paragraph
14 that there was no competent evidence in the record that could
support the determination that the TigerSwan facility’s impacts
were most similar to the category of recreation/amusement.
A. Classification of the TigerSwan Facility as a Vocational
School
First, respondents argue that the trial court erred as a
matter of law by concluding that the TigerSwan facility was a
vocational school pursuant to the zoning ordinance. Respondents
also contend that the trial court erred by failing to affirm the
determination of the Board that the TigerSwan facility was an
outdoor firing range, allowed as a use by right.
“The superior court reviews a board of adjustment’s
interpretation of a municipal ordinance de novo.” MNC Holdings,
LLC v. Town of Matthews, __ N.C. App. __, __, 735 S.E.2d 364,
367 (2012). Reviewing the trial court’s 23 October 2013 order,
we initially note that the trial court, while reviewing issues
involving the interpretation of the zoning ordinance, employed
the appropriate de novo standard of review. The issue in this
-14-
appeal is whether the trial court’s legal interpretation of the
zoning ordinance was correct. Accordingly, we also employ de
novo review and “consider [the] question[s] anew.” JWL Invs.,
Inc. v. Guilford County Bd. of Adjustment, 133 N.C. App. 426,
429, 515 S.E.2d 715, 718 (1999). See MNC Holdings, __ N.C. App.
at __, 735 S.E.2d at 367 (stating that because the issue on
appeal is whether the trial court’s legal interpretation of a
municipal ordinance is correct, our Court also employs a de novo
review).
In determining the meaning of a zoning ordinance, we apply
the same principles of construction used to interpret statutes.
See Morris, 365 N.C. at 157, 712 S.E.2d at 872. In addition,
we attempt to ascertain and effectuate the
intent of the legislative body. Unless a
term is defined specifically within the
ordinance in which it is referenced, it
should be assigned its plain and ordinary
meaning. In addition, we avoid
interpretations that create absurd or
illogical results.
Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439 S.E.2d
199, 201 (1994) (citations omitted). “[R]eviewing courts may
make independent assessments of the underlying merits of board
of adjustment ordinance interpretations. This proposition
emphasizes the obvious corollary that courts consider, but are
not bound by, the interpretations of administrative agencies and
-15-
boards.” Morris, 365 N.C. at 156, 712 S.E.2d at 871 (citations
and quotation marks omitted).
We first examine the intent of the zoning ordinance. Prior
to the 18 April 2011 amendment, the zoning ordinance provided
that “[a]ll uses of property are prohibited except those that
are permitted or otherwise allowed under the terms of this
ordinance.” Notably, following the 18 April 2011 amendment, the
zoning ordinance provided in Section 402 that “[a]ll uses of
property are allowed as a use by right except where this
ordinance specifies otherwise or where this ordinance
specifically prohibits the use.” In determining the intent of
the 18 April 2011 amendment, it is evident that the legislative
body intended to broaden the spectrum of permissible uses and
thereby, freely allowed the use of property except where it was
specifically prohibited.
We now consider the term “vocational school” and the
Board’s interpretation of that term. The term “vocational
school” is not defined in the zoning ordinance. “In the absence
of a contextual definition, courts may look to dictionaries to
determine the ordinary meaning of words within a[n ordinance.]”
Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 638, 528
S.E.2d 902, 904 (2000) (citation omitted). “Vocational” is
-16-
defined as “of, relating to, or concerned with a vocation” or
“of, relating to, or undergoing training in a skill or trade to
be pursued as a career.” Merriam-Webster Online Dictionary.2
Despite the lack of a definition within the zoning
ordinance, the Board interpreted the term “vocational school” to
mean the following:
The commonly accepted concept or definition
of a vocational school is an institution
like Fayetteville Technical Community
College where students gain career training
through extended courses in classrooms.
Vocational schools can have hundreds or
thousands of students coming by car to the
school each day. The TigerSwan facility has
just a limited number of cars each day.
The Board also found that the training offered at the TigerSwan
facility was in the nature of “skill level improvement” – eighty
to ninety (80 – 90%) percent of the activities conducted at the
TigerSwan facility occurred outside on the firing ranges and
that the training conducted inside the meeting rooms was
incidental to the firing of pistols and rifles. Based on the
foregoing, the Board concluded that the TigerSwan facility did
not fall within the “vocational school” classification of the
zoning ordinance.
2
http://www.merriam-webster.com/dictionary/
-17-
Considering the plain and ordinary meaning of the term
“vocational” school within the zoning ordinance, in light of the
intent of the ordinance, we hold that the Board’s determination
that the TigerSwan facility did not constitute a vocational
school was proper. Uncontested evidence presented before the
Board on 10 July 2012 included testimony from Brian Searcy, the
Chief Operating Officer for TigerSwan, that ninety-five percent
(95%) of “everything that occurs on this facility is range fire,
outdoors.” Searcy testified that eighty percent (80%) of
training is provided to military personnel, law enforcement, and
private security contractors “[t]o improve their current skills
that they have[.]” One day a week, the firing range is opened
to the public for recreational shooters. Significantly, Searcy
explained that “[TigerSwan] do[es] not qualify people to do
jobs, [does not] give diplomas and [does not] give any degrees.
We give a certificate of training to people who attend two or
three day courses. All we’re doing is helping improve skills
that they already have.” Searcy agreed that at the TigerSwan
facility, people are “just practicing a skill which is firing a
weapon[.]” Steve Swierkowski, who coordinates the training
events that take place at TigerSwan, testified that “the
-18-
majority of the activities takes place on the range” and that
“we can execute this range without the use of any classrooms.”
Because the TigerSwan facility does not teach a skill or
trade to be pursued as a career, but rather, provides training
to existing members of a profession in order to practice and
refine their already-existing skills, we agree with the Board’s
conclusion that the training offered at the TigerSwan facility
is in the nature of skill level improvement. The TigerSwan
facility operates as a firing range, and not as a vocational
school, where students gain career training through extended
courses in classrooms and receive diplomas or degrees so that
they are able to pursue a career. Furthermore, because the
zoning ordinance fails to specifically prohibit the use of land
as a firing range, it is allowed as a use by right pursuant to
Section 402. Based on the foregoing reasons, we hold that the
trial court improperly applied de novo review of the Board’s
decision and thus, erred by reversing the Board’s conclusion
that the TigerSwan facility does not fall within the
classification of a vocational school.
B. Evidence of the TigerSwan Facility as a
Recreation/Amusement Land Use
-19-
Next, respondents challenge the trial court’s conclusion
that “in the alternative, there was no competent evidence in the
Record that could support the determination that the TigerSwan
Facility’s impacts were most similar to [recreation/amusement].”
Respondents argue that there was competent evidence in the
record to refute this conclusion.
Because the trial court was reviewing whether the Board’s
decision that the TigerSwan facility’s impacts were most similar
to recreation/amusement, it should have applied the whole record
test. It is well established that “[w]hile the county board
operates as the finder of fact, a reviewing superior court sits
in the posture of an appellate court and does not review the
sufficiency of evidence presented to it but reviews that
evidence presented to the town board.” Mann Media, Inc. v.
Randolph County Planning Bd., 356 N.C. 1, 12-13, 565 S.E.2d 9,
17 (2002) (citation and quotation marks omitted). “[I]f in
applying the whole record test, reasonable but conflicted views
emerge from the evidence, this court cannot substitute its
judgment for the administrative body’s decision. Ultimately, we
must decide whether the decision has a rational basis in the
evidence.” Appalachian Outdoor Adver. Co. v. Town of Boone Bd.
-20-
of Adjustment, 128 N.C. App. 137, 141, 493 S.E.2d 789, 792
(1997) (citations and quotation marks omitted).
After thoughtful review, we hold that although the trial
court’s 23 October 2013 order indicates that it conducted review
under the whole record test, it failed to do so properly.
A recreation/amusement land use is defined within the
zoning ordinance as follows:
An area or establishment, which requires the
use of motors or engines for the operation
of equipment or participation in the
activity. This definition includes but is
not limited to go-cart tracks, bicycle
motorcross (BMX) courses and the like. This
definition does not include golf courses
(golf carts) or other low impact motorized
activities or vehicles.
At the 10 July 2012 hearing before the Board, testimony was
offered by Thomas J. Lloyd, director of the Planning Department.
Mr. Lloyd testified that he had issued a memorandum dated 21
February 2012 wherein he had made a determination that the
TigerSwan facility was a firing range, with the most similar
land use impacts of recreation/amusement. Mr. Lloyd, explaining
the analysis behind his determination, testified to the
following:
MR. LLOYD: We looked at the affects [sic]
of a firing range and noted what would be
the biggest objection or the biggest problem
with respect to health, safety and welfare
-21-
to neighboring properties and of course that
would be any projectile leaving the firing
range site. Of course there are other
aspects too including noise, lighting and
traffic volume. But most of all we had to
look at the safety of the surrounding
property. When you look at outdoor
recreation it addresses safety specifically
Section 920F which talks about fencing,
netting and other control measures and many
times with firing ranges, the use permit,
shall be provided around the perimeter of
any areas used for hitting, flying, or
throwing of objects to prevent the object
from leaving the designated area. The only
thing we had in the ordinance that addressed
objects of any kind leaving the site or
leaving the area was outdoor recreation.
With respect to that and that measure of any
projectile on a firing range leaving the
area as well as the less impact of lighting
and noise, they were also similarly
addressed in outdoor recreation.
MR. FLOWERS: Just so we are clear on this,
when you issued that memo on February 21,
2012, you were not saying that a firing
range is outdoor recreation but that the
impact is similar to outdoor recreation, is
that right?
MR. LLOYD: Yes sir, which is exactly the
way the ordinance amendment in Section 402
read.
Based on the foregoing evidence presented to the Board, we
hold that the trial court erred by concluding that there was “no
competent evidence” that could support the determination that
the TigerSwan facility’s land use impacts were most similar to
the recreation/amusement classification. “It is neither the
-22-
superior court’s nor this Court’s duty to second guess the
decision of [the Board] where there is a rational basis in the
evidence.” Myers Park Homeowners Ass’n., Inc. v. City of
Charlotte, __ N.C. App __, __, 747 S.E.2d 338, 344 (2013).
IV. Conclusion
We hold that the Board properly approved the TigerSwan
facility as a firing range with the land use impacts most
similar to the recreation/amusement classification.
Accordingly, because the trial court improperly reversed the
decision of the Board, we reverse the order of the trial court.
Reversed.
Judges STEPHENS and STROUD concur.