Barbara Ann Coombs and her Daughter, A.D., a Minor by and through her Mother and Next Friend, Barbara Ann Coombs v. Jason Pilger Hyundai of Gautier, Mississippi and Randy Workman

• Court: Court of Appeals of Mississippi
• Decided: December 10, 2019
• Docket: NO. 2018-CA-01571-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01571-COA

BARBARA ANN COOMBS AND HER APPELLANTS DAUGHTER, A.D., A MINOR BY AND THROUGH HER MOTHER AND NEXT FRIEND, BARBARA ANN COOMBS

v.

JASON PILGER HYUNDAI OF GAUTIER, APPELLEES MISSISSIPPI AND RANDY WORKMAN

DATE OF JUDGMENT: 10/23/2018 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: ELMER LOUIS FONDREN JR. ATTORNEY FOR APPELLEES: DAVID BENNETT PILGE NATURE OF THE CASE: CIVIL - INSURANCE DISPOSITION: AFFIRMED - 12/10/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

McDONALD, J., FOR THE COURT:

¶1. Barbara Coombs and her minor daughter filed suit against Jason Pilger Hyundai and

Randy Workman1 for damages arising out of a motor vehicle accident. Barbara claimed that

when she leased/purchased a vehicle from Pilger Hyundai, Workman and other employees

misled her into purchasing new insurance coverage that did not include uninsured motorist

coverage. When she and her daughter had an accident with an uninsured motorist and her

new insurer denied their claim for lack of coverage, they sued Pilger Hyundai, Randy

1 Others were sued, but only these two defendants remain on appeal. Workman, and others for damages. Because Barbara had signed an arbitration agreement

with the dealership, the County Court of Jackson County ordered arbitration, and the

arbitrator ruled in favor of Pilger Hyundai and Workman. Barbara and her daughter appealed

the arbitrator’s decision to the county court and then to the Jackson County Circuit Court.

Both courts upheld the arbitration award. Barbara and her daughter have now appealed the

circuit court’s judgment denying their request to vacate the arbitration award. We affirm

because Barbara and her daughter failed to timely appeal the order compelling arbitration and

waived the right to challenge it on appeal after participating in the arbitration proceeding.

Also, Barbara and her daughter failed to establish any statutory ground for vacating the

arbitrator’s decision.

FACTS AND PROCEDURAL HISTORY

I. The Vehicle Purchase

¶2. Barbara leased/purchased a vehicle from Pilger Hyundai on June 11, 2013. Workman

sold Barbara the car and Ryan McMahon, another Pilger Hyundai employee, was introduced

to her as the “insurance man who would get her the full coverage insurance she wanted at a

lower price.” Barbara already had full coverage, including uninsured motorist coverage, with

another company, but McMahon convinced her to switch. McMahon completed a

Government Employees Insurance Company (GEICO) automobile insurance application for

Barbara online in her presence, although she said that she was unable to see the computer

monitor. Barbara claims that McMahon entered a rejection of uninsured motorist coverage

on the computer but wrongfully concealed this fraudulent act from her. Barbara believed she

2 was purchasing full coverage insurance, which included uninsured motorist coverage,

although she admitted that she signed the above-mentioned form without reading it. Later,

when Barbara received a copy of the GEICO policy in the mail, Barbara also failed to read

it.

¶3. In connection with her purchase, Barbara signed a “Dispute Resolution Agreement

for Binding Arbitration.” Among its provisions, the agreement states that “any controversy

or claim between the Buyer(s)/Lessee(s) and Jason Pilger Hyundai arising out of or relating

to . . . (5) any and all related finance, insurance, extended warranty and/or service

agreements. . . or any breach thereof shall be resolved by binding arbitration . . . .”

II. The Accident

¶4. On November 16, 2013, Barbara and her fourteen year old daughter, A.D.,2 were

involved in an automobile accident in which they were struck by Kenyon Sumlin, an

uninsured motorist. After the accident, both sought medical treatment, and Barbara filed

uninsured motorist claims with GEICO for herself and her daughter. GEICO denied the

claims because Barbara’s insurance policy did not include uninsured motorist coverage.

III. County Court Action

¶5. On March 3, 2015, Coombs filed an action in the Jackson County County Court

against Sumlin and GEICO. GEICO was dismissed when Coombs learned that McMahon

was not a GEICO agent but simply an employee of Pilger Hyundai. On August 13, 2015,

2 For privacy reasons, the minor child will be referenced by initials only. Going forward, both will be referred to collectively using the singular surname “Coombs” but separated when necessary.

3 Coombs filed an amended complaint against Sumlin, “Ryan,”3 Workman, and Pilger

Hyundai. The amended complaint alleged that Pilger Hyundai and Workman directly and

proximately contributed to a fraudulent misrepresentation being made to Barbara—i.e. that

she was getting “full insurance coverage”—and that this misrepresentation led her to

reasonably believe that her new insurance with GEICO included uninsured motorist

coverage.

¶6. On October 21, 2015, Pilger Hyundai and Workman filed a motion to dismiss or to

compel arbitration in the alternative. On November 3, 2015, Coombs filed a response and

argued that the arbitration agreement was null and void as to Barbara because it was a one-

sided contract of adhesion and because it violated her right to a jury trial. Coombs also

argued that the agreement was void as to A.D. because the child was not a party to the

arbitration agreement.4 On November 17, 2015, the county court entered an order

compelling arbitration of all claims.5

3 At the time, Coombs did not know Ryan McMahon’s last name. Once learned, Coombs moved for a default judgment against McMahon. After a hearing on the motion, on November 22, 2016, the county court granted Coombs a default judgment against McMahon and awarded Barbara and A.D. $5,000 each in compensatory damages and $15,000 in punitive damages. Coombs has not yet collected this judgment. 4 The grounds for Coombs’s objections to arbitration are found in the Response to Motion to Dismiss, which is in the record. According to the county court docket, Coombs filed a supplemental “Motion in Objection to Arbitration,” which is not in the record. So we do not know what, if any, additional grounds Coombs raised to challenge the validity of the arbitration agreement. However, not having that information does not affect the outcome of this case. 5 The record does not include this county court order, but its absence does not affect the outcome of this case.

4 ¶7. On December 21, 2015, Coombs filed a motion for relief from the order compelling

arbitration or, alternatively, for an order requiring Pilger Hyundai and Workman to pay the

arbitration fees.6 A hearing was held on this motion. On February 12, 2016, the court

affirmed its previous order compelling arbitration and granted Coombs’s request for payment

of the arbitration fees. Coombs did not appeal the court’s order compelling arbitration but

chose to participate in the arbitration.

IV. The Arbitration

¶8. At the arbitration, Barbara and A.D. testified; Pilger Hyundai and Workman called no

witnesses. According to the arbitration decision rendered on December 22, 2017, Barbara

admitted that Pilger Hyundai was an automobile dealership and that none of its employees

wore or displayed anything that would indicate a relationship with GEICO. Barbara also

testified that she received her GEICO policy in the mail but did not read it. The arbitrator

found that based on the testimony presented, there was no evidence that supported Coombs’s

claims that Pilger Hyundai employees had apparent authority to act for GEICO. Nor did the

proof support claims of intentional or negligent misrepresentation. The arbitrator found “no

facts which indicate conduct on behalf of Jason Pilger Hyundai to induce the public to

believe it has a relationship with Geico or is an insurance agent of Geico; thus, the question

becomes, is Ms. Coombs reasonable in her reliance on Workman’s statement that he would

get her the same coverage she had with State Farm.” Based upon the testimony presented,

6 Coombs’s motion is not in the record, so we cannot determine the basis for the argument against the order compelling arbitration. However, not having that information does not affect the outcome of this case.

5 the arbitrator decided that it was not reasonable for Barbara to have relied on Workman’s

statements, and he found for Pilger Hyundai and Workman.

¶9. On February 5, 2018, Coombs filed a motion with the arbitrator asking him to

reconsider his decision and correct factual errors. The arbitrator denied Coombs’s motion.

V. Appeal of the Arbitration Decision to County Court

¶10. On February 7, 2018, Coombs filed a notice of appeal from the arbitrator’s decision

in the county court. Coombs argued that the arbitrator made numerous factual mistakes and

that because A.D. was not a party to the arbitration contract, the minor’s claim should not be

decided by an arbitrator.7 On March 5, 2018, following a hearing on Coombs’s motion, the

county court entered an order denying the appeal of the arbitrator’s decision.

VI. Appeal to Circuit Court

¶11. Aggrieved with the county court’s decision, Coombs appealed to the Jackson County

Circuit Court on March 9, 2018. In their appeal, Coombs alleged the arbitrator made errors

warranting a vacation of the decision under Mississippi Code Annotated sections 11-15-133

and 11-15-135 (Rev. 2004).8 Further, Coombs argued that the minor was not a signor and

was not connected to the arbitration agreement and that the minor’s business was subject to

7 Concerning her own claim, Barbara did not challenge the legality of the court’s order compelling arbitration. 8 Coombs cites the wrong statutory sections applicable to this case, none of which has been amended since 1981. Mississippi Code Annotated sections 11-15-133 and 11-15-135 (Rev. 2019) deal with the grounds for vacating or modifying an arbitration award under Mississippi Code Annotated section 11-15-101 (Rev. 2019) (covering controversies arising from construction contracts and related agreements). The statute applicable in this case is Mississippi Code Annotated section 11-15-23 (Rev. 2019) (covering grounds for vacation of arbitration awards).

6 the jurisdiction and approval of the chancery court.9

¶12. On October 23, 2018, the circuit court held that Coombs failed to prove any of the

grounds for vacation of an award pursuant to Mississippi Code Annotated section 11-15-23,

and therefore, it denied Coombs’s requested relief. The court made no specific ruling on

Coombs’s argument that the minor’s claim should not have been sent to arbitration. Coombs

appealed the circuit court’s decision to this Court on October 30, 2018.

STANDARD OF REVIEW

¶13. The standard by which an appellate court reviews a trial court’s order confirming an

arbitration award is that questions of law are reviewed de novo and findings of fact are

reviewed only for clear error. D. W. Caldwell Inc. v. W.G. Yates & Sons Constr. Co., 242 So.

3d 92, 99 (¶15) (Miss. 2018). The level of review afforded to the decision of an arbitrator

is quite narrow and provided by statute. Robinson v. Henne, 115 So. 3d 797, 799 (¶6) (Miss.

2013). An arbitration award may be overturned by a reviewing court only if the elements of

the applicable statute are present. Wilson v. Greyhound Bus Lines Inc., 830 So. 2d 1151,

1157 (¶16) (Miss. 2002). Normally we review the grant or denial of a motion to compel

arbitration de novo. East Ford Inc. v. Taylor, 826 So. 2d 709, 713 (¶9) (Miss. 2002).

DISCUSSION

¶14. On appeal, Coombs raises eleven issues.10 Issue #1, and Issues ##3-9 allege errors

9 Again Barbara did not challenge the legality of the county court’s order that her claim be arbitrated; she only argued the errors allegedly made by the arbitrator. 10 These include (1) that Coombs and the Appellees had a fiduciary relationship that Appellees violated; (2) that the minor child’s claim should not have been ordered to arbitration; (3) that the arbitrator said that Coombs had been awarded a default judgment

7 made by the arbitrator that Coombs contend warrant vacation of the arbitration award. Issue

#2 and Issue #11 challenge the county court order compelling arbitration of both Barbara’s

and A.D.’s claims. We find that Barbara and A.D. failed to timely appeal the order

compelling arbitration, and we lack jurisdiction to address it now. Alternatively, Barbara and

A.D. waived the right to challenge the validity of an order compelling arbitration after

participating in it. We further find that the circuit court did not err in holding that Coombs

failed to prove any of the grounds for vacation of the arbitration award pursuant to

Mississippi Code Annotated section 11-15-23.

A. Coombs’s Challenge to the Order Compelling Arbitration

¶15. Barbara and A.D. argue that the county court should not have compelled the

arbitration of their claims. But they failed to appeal the order in a timely fashion and

participated in arbitration, thereby robbing this Court of jurisdiction to consider their

argument on appeal and waiving their right to challenge the order compelling arbitration after

the dispute-resolution process occurred.

against Sumlin, when the default judgment had been entered against McMahon; (4) that the arbitrator said that Workman sold the insurance to Barbara when this was done by McMahon; (5) that the arbitrator failed to find that the perpetrator of the fraud was an agent of Pilger Hyundai; (6) that the arbitrator failed to grant the minor child her statutory and Mississippi Constitutional rights (a duplication of Issue 2); (7) that because of the judgment against McMahon, fraud and deception by him was proved by the doctrine of collateral estoppel; (8) that the arbitrator’s finding that Barbara could not have believed that automobile dealers would be in the insurance business is contrary to the evidence; (9) that Pilger Hyundai and Workman are the proper parties; (10) that Barbara was given verbal assurances and GEICO insurance information so she should not be expected to examine the policy sent to her; and (11) that Barbara should not have been ordered to arbitrate her individual claim because the fraudulent misrepresentation claim was not in the scope of the arbitration agreement.

8 ¶16. The Mississippi Supreme Court has made it clear that an order compelling arbitration

that disposes of all the issues before the trial court is a final decision that is immediately

appealable. Sawyers v. Herrin-Gear Chevrolet, 26 So. 3d 1026, 1034 (¶19) (Miss. 2010).

In that case, Sawyers, who had signed an arbitration agreement when she purchased a

vehicle, sued the dealership for misrepresentations made to her concerning the coverage of

the insurance she purchased through the dealership. Id. at 1028-29 (¶¶2-3). Herrin-Gear

filed a motion to compel arbitration, which the court granted. Id. at 1029-30 (¶¶5, 8). Before

participating in arbitration, Sawyers immediately appealed the order to arbitrate. Concerning

the appellate court’s jurisdiction to consider the matter, the supreme court said:

The trial court order in today’s case compelled arbitration of the entire controversy as to all parties. As such, we find that this Court has appellate jurisdiction over the present matter pursuant to Section 16(a)(3) of the FAA. See 9 U.S.C. § 16(a)(3) (2006). To the extent that Banks and its progeny are in conflict with today’s decision, those cases are overruled.

Id. at 1034 (¶19). Since 2010, then, the supreme court has made it clear that a party has the

right to a direct appeal of an order compelling arbitration. In numerous cases after Sawyer,

that procedure has been followed by those who wish to challenge such orders. See LAGB

LLC v. Total Merch. Servs Inc., No. 2018-CA-00723-SCT, 2019 WL 4686438, at *2 (¶7)

(Miss. Sept. 26, 2019); Dalon v. MS HUD Ocean Springs LLC, No. 2018-IA-00594-SCT,

2019 WL 4316160, at *1 (¶4) (Miss. Sept. 12, 2019); Massey v. Oasis Health & Rehab of

Yazoo City LLC, 269 So. 3d 1242, 1249 (¶11) (Miss. Ct. App. 2018).

¶17. Even though a party has the right to appeal an order compelling arbitration, that right

can be waived. In Paige Electric Co. v. Davis & Feder P.A., 231 So. 3d 201 (Miss. Ct. App.

9 2017), the electric company had retained a law firm to collect an outstanding debt. Id. at 203

(¶5). The retainer agreement contained an arbitration clause. Id. When the electric company

later learned that the law firm had allegedly breached their agreement, the electric company

sued the law firm. Id. at 204 (¶6). Acknowledging that the retainer included the arbitration

provision, the electric company agreed to an order compelling arbitration. Id. After an

unsuccessful outcome in arbitration, the electric company filed a motion to vacate the award

and a motion to declare the arbitration clause invalid. Id. at (¶8). The circuit court concluded

that the electric company had waived any objection to the arbitration clause when it

voluntarily consented to arbitration. Id. at 205 (¶11). We agreed. We noted that Mississippi

had not addressed the precise issue of challenging an arbitration clause post-arbitration;

however, other jurisdictions had. Id. at (¶12). Quoting one, we said, “[G]iven that

arbitration is an optional alternative to judicial resolution of disputes . . . when the parties

have agreed to arbitration, the law discourages the loser from seeking a second de novo (or

even quasi-de novo) shot at obtaining its desired result.” Id. (quoting Unite Here Local 23

v. I. L. Creations of Maryland Inc., 148 F. Supp. 3d 12, 18-19 (D.D.C. 2015)). Noting that

the electric company had not objected to arbitration until after the arbitration itself, we found

no error in the circuit court’s finding that the electric company had waived its right to object

to the order compelling arbitration. Id. at 206 (¶14).

¶18. In the case at hand, even though Barbara and A.D. had challenged the order

compelling them to arbitrate their dispute,11 they failed to appeal that order until now and

11 Although Barbara did not argue to the circuit court that her individual claim should not have been ordered to arbitration, we will consider her arguments as if she had.

10 participated in the arbitration. On November 17, 2015, the county court ordered arbitration.

It denied Coombs’s motion for relief from that order on February 12, 2016. As a final

appealable order, Coombs had thirty days under Rule 4(a) of the Mississippi Rules of

Appellate Procedure to appeal the order compelling arbitration. Rule 4(a) provides that “in

a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right

from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed

with the clerk of the trial court within 30 days after the date of entry of the judgment or order

appealed from.” Here, Barbara and A.D. had a right by law to appeal the order compelling

arbitration. But instead of doing so, they both participated in the arbitration. Failure to

timely appeal leaves the supreme court and this court without jurisdiction to consider the

issue. Pope v. Brock, 179 So. 3d 1120, 1126 (¶27) (Miss. 2015) (citing Bank of Edwards v.

Cassity Auto Sales Inc., 599 So. 2d 579, 582 (Miss. 1992)). “This time requirement is

jurisdictional and will be strictly enforced.” Rigdon v. Miss. Farm Bureau Fed’n, 22 So. 3d

321, 324 (¶5) (Miss. Ct. App. 2009).

¶19. Accordingly, with respect to A.D.’s claim and to the extent that her mother contends

the arbitrator’s award as to her claim should be vacated because of an invalid order

compelling arbitration, we find that their participation in the arbitration constituted a waiver

of their rights to challenge the validity of the order compelling it on appeal. To find

otherwise, would be patently unfair to their opposing parties. The Mississippi Supreme

Court has held that a defendant’s participation in litigation waives its right to compel

arbitration. MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 180 (¶41) (Miss. 2006); Citibank,

11 N.A. v. Stovall, 211 So. 3d 700, 702 (¶10) (Miss. Ct. App. 2016). “Waiver will be found

when the party seeking arbitration substantially invokes the judicial process to the detriment

or prejudice of the other party.” Univ. Nursing Assocs. v. Phillips, 842 So. 2d 1270, 1278

(¶28) (Miss. 2003). The converse applies as well. If a party who has a right to compel

arbitration loses that right by continuing its defense in our court system, then a party with a

challenge to arbitration who participates in arbitration cannot argue the enforceability of the

arbitration clause thereafter in court. Here Barbara arbitrated both her claim and that of her

daughter. Therefore, both must live with the arbitration results unless there are statutory

grounds for the relief.12 However, they cannot revisit the issue of whether arbitration should

have been ordered once they participated in the arbitration.

B. Coombs’s Challenge to the Circuit Court Order Affirming the Arbitrator’s Award

¶20. Finding that we cannot consider Coombs’s challenge of the validity or scope of

arbitration agreement post-arbitration, we move on to Coombs’s second issue. The circuit

court denied Coombs’s request to set aside the arbitrator’s decision and held that Coombs

had failed to prove any of the grounds for vacation of an award pursuant to Mississippi Code

Annotated section 11-15-23. We agree.

¶21. As noted earlier, there are two relevant statutes that deal with the grounds that must

be shown to vacate an arbitrator’s award. One, Mississippi Code Annotated section 11-15-

133 deals with the permissible grounds for vacating an arbitration award in controversies

12 This may seem harsh with respect to the claims of the minor. However, Barbara filed suit on behalf of herself and on behalf of the minor and by doing so she had the right to make decisions concerning her child’s claim.

12 arising from construction contracts and related agreements. In the application to set aside

an arbitration award in such cases, the challenging party must show that “the award was

procured by corruption, fraud or other undue means” or “[t]here was evident partiality by an

arbitrator[,] . . . corruption[,] . . . or misconduct prejudicing the rights of any party. . . .”

Miss. Code Ann. § 11-15-133(1)(a)-(b). The other statute, Mississippi Code Annotated

section 11-15-23, deals with vacating any other type of arbitration award. This statute states

that a court may vacate an arbitration award upon any of the following grounds:

(a) That such award was procured by corruption, fraud, or undue means;

(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;

(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;

(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

Miss. Code Ann. § 11-15-23. Since this arbitration award is not related to a construction

contract, we apply section 11-15-23.

¶22. In Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809 (1948), the Mississippi Supreme

Court held that the only grounds for setting aside an arbitration award are prescribed by

statute; it said:

Errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in the award relative to the merits of the controversy as submitted, however wrongly decided, is ground for setting aside an award

13 in the absence of fraud, misconduct or other valid objections (“other valid objections” defined in the opinion by statutes.)

Id. at 40-41, 36 So. 2d at 811. The Hutto court relied on a treatise and explained that

“[u]nless the arbitrators are restricted by the agreement of submission, the general rule is that

they are the final judges of both law and fact, and an award will not be reviewed or set aside

for mistake in either.” Id. at 41, 36 So. 2d at 811. The Court further reiterated that “there is

no review or correction of errors of the judgment, either upon the law or facts.” Id. In

reviewing an arbitration award in Wilson v. Greyhound Bus Lines Inc., 830 So. 2d 1151

(Miss. 2002), the supreme court said:

It is not legitimate, therefore, in exceptions to the award, to inquire into the original merits in favor of one party or the other, or to show that in the evidence the award ought to have been different or that the law of the case was misconceived or misapplied, or that the decision, in view of all the facts and circumstances, was unjust.

Id. at 1156 (¶10).

¶23. We have strictly applied the provisions of section 11-15-23 when considering the

validity of an arbitration award. In Wells Fargo Advisors LLC v. Runnels, 126 So. 3d 137

(Miss. Ct. App. 2013), a trial court denied a motion to confirm an arbitration award and for

entry of judgment. On appeal, we reversed and found that the arbitration award did not fall

under any of the four grounds that would allow the award to be vacated. Id. at 143 (¶22).

Additionally, we noted that “the supreme court has ruled that the trial court is not allowed

to substitute its own judgment on the merits of the controversy for that of the arbitrator but

is instead constrained to determine whether the award fails an analysis under section 11-15-

23.” Id. at 143 (¶23). Thus, simply raising alleged factual errors by the arbitrator does not

14 constitute grounds for vacating his decision.

¶24. Here, Coombs presented no evidence that the arbitration award falls under any of the

four grounds that would allow the award to be vacated. Coombs produced no proof that the

arbitration award was procured by corruption, fraud, or undue means; there was no proof of

partiality or corruption on the part of the arbitrator; there was no refusal to postpone the

hearing upon sufficient cause, and no proof of misbehavior by which the parties’ rights were

prejudiced. There was no showing the arbitrator exceeded or executed his powers in a matter

in which an award was imperfectly made. Coombs merely raises alleged errors made by the

arbitrator that do not constitute grounds to reverse his decision.

¶25. Accordingly, we find that the circuit court did not err when denying Coombs’s motion

to set aside the arbitrator’s award.

CONCLUSION

¶26. Because Coombs did not timely appeal the order compelling arbitration and proceeded

to participate in it, Coombs waived their right to challenge the order post-arbitration.

Further, because Coombs did not prove any statutory ground for vacating the arbitrator’s

award, we affirm the circuit court’s refusal to vacate it.

¶26. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.