THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
JEFFERSON COUNTY, TENNESSEE, ) C/A NO. 03A01-9810-CH-00331 FILED October 13, 1999
Cecil Crowson, Jr. Appellate Court Clerk ) Plaintiff-Appellant, ) ) ) ) v. )
) APPEAL AS OF RIGHT FROM THE ) HAMBLEN COUNTY CHANCERY COURT ) THE CITY OF MORRISTOWN, ) TENNESSEE, and THE INDUSTRIAL ) DEVELOPMENT BOARD OF ) MORRISTOWN, TENNESSEE, ) ) HONORABLE THOMAS R. FRIERSON, II, Defendants-Appellees.) CHANCELLOR
For Appellant For Appellee The City of Morristown, Tennessee
GREGORY C. LOGUE RICHARD C. JESSEE Woolf, McClane, Bright, LORI L. JESSEE Allen & Carpenter, PLLC Bacon, Jessee & Perkins Knoxville, Tennessee Morristown, Tennessee
For Appellee The Industrial Development Board of Morristown, Tennessee
WILLIAM O. FOUTCH, JR. Morristown, Tennessee
Page 1 OPINION
AFFIRMED AND REMANDED Susano, J.
This appeal questions the validity of the
multifaceted efforts of the City of Morristown (“Morristown”) —
the county seat of Hamblen County — to include 250 acres of
property located in neighboring Jefferson County as a part of
an industrial park to be developed by Morristown in two phases. 1 Morristown, through its Industrial Development Board (“
Development Board”), entered into option agreements to
purchase the Jefferson County acreage from the affected
landowners. As a further part of its development plan,
Morristown annexed the subject Jefferson County properties
into its boundaries. The County Commission of Jefferson
County (“Jefferson County”) objected to the development of a
public works project within its boundaries in the absence of
its consent, and filed a declaratory judgment action against
Morristown and the Development Board in an attempt to enjoin
the defendants from purchasing any real property in Jefferson
County for the proposed development without first obtaining
the consent of Jefferson County. In its suit, Jefferson
County also questions the constitutionality and applicability
of a portion 2 of a new annexation statute of general
Page 2 application, a statute that Jefferson County contends is
controlling on the issue of the validity of the subject
annexations. Following a bench trial, the court below
dismissed Jefferson County’s complaint. Jefferson County
appeals, raising issues that present the following questions
for our resolution:
1. Did the trial court err in determining that T.C.A. § 9-21-107(1) (1992) 3 is inapplicable to the facts of this case?
2. Did the trial court err in allowing Attorney Mark Mamantov to testify as to the bond community’s understanding of and usage under T.C.A. § 9-21-107(1) (1992)?
3. Did the trial court err in determining that Jefferson County did not have standing to challenge Morristown’s annexation ordinances?
I.
In or about 1996, Morristown embarked on a plan to
expand its reservoir of industrial park acreage. The new
project — known as the East Tennessee Progress Center (“the
Center”) — was to be developed in the same general area as
that of an existing industrial park. In planning for the new
site, Morristown became interested in property in neighboring
Jefferson County. That property is contiguous to the property
in Morristown, Hamblen County, that was to be used for the
Center.
In 1998, Morristown, in conjunction with the
Page 3 Development Board, entered into agreements to purchase the
tracts of property that are located entirely in Hamblen
County. As a part of the same project, in late 1997 and early
1998, Morristown took options on four other tracts. Each of
the four tracts lies partially in Hamblen County and partially
in Jefferson County. Morristown had been unable to purchase
only the Hamblen County portion of these tracts because each
of the property owners had refused to sell their tracts unless
the transaction also included their acreage in Jefferson
County. This prompted Morristown to pursue these properties
by way of options. None of the acreage involved in the
project was acquired through eminent domain.
On April 21, 1998, Morristown passed, on final
reading, six annexation ordinances, extending its boundaries
to include the Jefferson County properties under option. On
May 19, 1998, Morristown passed an initial and final
resolution for the issuance of bonds to purchase the Hamblen
County portion of the property required for the Center. On
the same date, Morristown passed a resolution to acquire the
Jefferson County properties. The latter resolution specified
that the Jefferson County properties would be purchased with
available funds. No bond money was to be used to purchase or
develop the property in Jefferson County.
On March 26, 1998, the Jefferson County Commission
passed a resolution, which provided that Morristown did not
Page 4 have its consent to construct a public works project, i.e.,
the Center, in Jefferson County.
Effective May 19, 1998, the General Asssembly passed
a new annexation law, which provides, in pertinent part, as
follows:
(e)(1) After May 19, 1998, a municipality may not annex by ordinance upon its own initiative territory in any county other than the county in which the city hall of the annexing municipality is located...
* * *
(2) This subsection (e) shall not affect
any annexation ordinance adopted on final
reading by a municipality prior to May 19,
1998, if such ordinance annexed property
within the same county where the
municipality is located or annexed
property in a county other than the county
in which the city hall is located if the
property is used or is to be used only for
industrial purposes.
T.C.A. § 6-58-108(e) (1998). (Emphasis added).
This suit was filed on May 26, 1998. In its
complaint, Jefferson County alleges that the defendants
violated T.C.A. § 9-21-107(1) (1992) in that they failed to
Page 5 obtain Jefferson County’s consent to the construction of a
public works project lying partially in Jefferson County.
Jefferson County also challenges the constitutionality and
applicability of Subsection (e)(2) of T.C.A. § 6-58-108
(1998), and contends that since Morristown must rely on the “
unconstitutional” and “inapplicable” exception found in
Subsection (e)(2) of the statute to validate its annexations,
those ordinances are not valid.
The trial court concluded that T.C.A. § 9-21-107(1)
(1992) is not applicable to the facts of this case.
Furthermore, that court determined that Jefferson County
lacked standing to challenge Morristown’s annexation
ordinances. Because the parties had requested an expedited
hearing, the trial court found that the Attorney General had “
not been afforded an adequate opportunity to be heard”;
accordingly, the trial court refused to address the
constitutionality of T.C.A. § 6-58-108(e)(2) (1998).
II.
This non-jury matter is before us for a de novo
review on the record of the proceedings below. Rule 13(d),
T.R.A.P. That record comes to us with a presumption of
correctness –- a presumption that we must honor unless the
evidence preponderates against the trial court’s factual
findings. Id. The trial court’s conclusions of law are
Page 6 subject to a de novo review with no presumption of
correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996). Therefore, we will examine the trial court’s
interpretation of the applicable statute unburdened by a
presumption of correctness. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 924 (Tenn. 1998).
III.
The parties differ as to the meaning of §
9-21-107(1) (1992), which provides, in pertinent part, as
All local governments have the power and are authorized, either singly or jointly with any one (1) or more other local governments, local government instrumentalities, the state, or a state or federal agency or jointly with one (1) or more of the above, to:
(1) Engage in the construction of any public works project which may be constructed within or without the local government, or partially within and partially without the local government. However, no local government shall engage in the construction of a public works project wholly or partly within the legal boundaries of another local government except with the consent of the governing body of the other local government; provided, that any county or metropolitan government may construct a public works project within a municipality within the county or metropolitan government without the permission of the governing body of the municipality....
Page 7 T.C.A. § 9-21-107(1) (1992) (Emphasis added). Jefferson
County contends that this provision requires the consent of
Jefferson County to the proposed development even though the
property, by virtue of Morristown’s recent annexations, is
wholly within the legal boundaries of Morristown. Morristown
argues, on the other hand, that the provision does not apply
when a local government constructs a public works project
wholly within its own boundaries.
We agree with the trial court that this provision is
somewhat ambiguous. “A statute is ambiguous if it is capable
of conveying more than one meaning.” Browder v. Morris, 975
S.W.2d 308, 311 (Tenn. 1998). Does the statute mean that a
municipality must obtain the consent of the county in which it
is located before undertaking a public works project that lies
entirely within the municipality’s borders? Or does the
statute only mean that a municipality is required to obtain
the consent of another local government when the municipality
intends to develop a public works project within that other
local government’s territory but outside the territory of the
municipality? We believe the language of the statute can be
read either way. Hence, we find that language ambiguous. In
dealing with an ambiguous statute, we are authorized to look
elsewhere in our attempt to ascertain legislative intent. Id.
The language of a statute must be considered “in
[the] context of the entire statute without any forced or
Page 8 subtle construction which would extend or limit its meaning.”
Id. (citing Wilson v. Johnson County, 879 S.W.2d 807, 809
(Tenn. 1994)). We are also mindful that we must “construe
terms reasonably and not in a fashion which will lead to an
absurd result.” McClellan v. Board of Regents of State Univ.,
921 S.W.2d 684, 689 (Tenn. 1996); Loftin v. Langsdon, 813
S.W.2d 475, 480 (Tenn.App. 1991).
T.C.A. § 9-21-107 (1992) is part of a statutory
scheme governing the financing of public works projects
through the use of general obligation or revenue bonds. At
trial, Mark Mamantov, an attorney with extensive experience 4
practicing primarily in the field of such bonds, testified
that he was not aware of any instances in Tennessee where a
firm had advised a municipality to seek the consent of the
county in which the municipality is located before
constructing a public works project when the project was
located entirely within the municipality’s boundaries. While
noting that such evidence is not controlling, the trial court
in its memorandum opinion recognized that in an appropriate
case the meaning attributed to statutory language by the legal
profession is accorded some deference. See Shields v.
Williams, 19 S.W.2d 261, 265 (Tenn. 1929). Furthermore, the
trial court noted:
[f]ollowing Plaintiff Jefferson County’s argument to its logical conclusion, each occasion when a municipality would be
Page 9 engaged in a public works project financed by general obligation bond funds it would be compelled to seek the consent of each county in which said municipal property was located. Each Tennessee municipality is located within the legal boundaries of another governing body, i.e., the county in which it is located. Under Plaintiff’s interpretation of the statute in question, each time the City of Morristown would be engaged in any form of public works wholly within its legal boundaries, if financing were accomplished through general obligation bond funds, the consent of the Hamblen County Commission would be required. Thus, a municipality’s basic ability to function would be dependent upon the consent of the governing body of the county in which it was located. Such a construction of T.C.A. 9-21-107(1) would lead to unreasonable and absurd results.
We agree with the trial court that Jefferson County’s
interpretation of the statutory language would produce an
unreasonable and absurd result. We find that Morristown’s
interpretation is a reasonable one: the statute requires a
municipality to seek another local government’s consent when a
project of the former lies outside the municipality’s
boundaries. To read the statute otherwise would require the
consent of the county in which a municipality is located for
the construction of every municipal public works project
within the municipality’s territory. For example, if a
municipality decided to build a road within its city limits,
it would, according to Jefferson County’s interpretation, have
to secure the consent of the county in which the municipality
and its new road is located. The legislature could not have
intended such an absurd result. Therefore, we hold that
Page 10 T.C.A. § 9-21-107(1) (1992) does not require a municipality to
seek the consent of the county in which the municipality is
wholly or partially located to construct a public works
project located entirely within the municipality’s borders.
Hence, we find and hold that T.C.A. § 9-21-107(1) (1992) is
not applicable to the facts of this case.
We find that there is an additional reason why
T.C.A. § 9-21-107(1) (1992) is inapplicable to the facts of
this case. The language of that statute was enacted as part
of the Local Government Public Obligations Act of 1986, now
codified at T.C.A. § 9-21-101 (1992), et seq., which provides
a comprehensive framework by which local governments may issue
general obligation bonds and revenue bonds in order to finance
public works projects. Thus, if a local government finances a
public works project by using funds not generated by general
obligation bonds or revenue bonds, T.C.A. § 9-21-107 (1992) is
simply not applicable. In the instant case, the trial court
made a specific finding that Morristown would not be financing
any portion of the Jefferson County phase of the Center with
funds generated as a result of the issuance of general
obligation bonds or revenue bonds. We agree with the trial
court that this is an additional reason why T.C.A. §
9-21-107(1) (1992) is inapplicable and, therefore, Jefferson
County’s consent was not required.
IV.
Page 11 Jefferson County argues that the trial court erred
in considering Mamantov’s expert testimony concerning the bond
community’s understanding and usage under the provisions of
T.C.A. § 9-21-107(1) (1992). Specifically, Jefferson County
contends that pursuant to Rule 702, Tenn.R.Evid., expert
testimony is admissible only to substantially assist the trier
of fact to determine a fact in issue, not the interpretation
of a statute, which is a question of law.
We will not reverse a lower court’s decision to
admit expert testimony absent a clear showing of an abuse of
discretion. Miller v. Alman Construction Co., 666 S.W.2d 466,
468 (Tenn.App. 1983). “Also, it must be shown that the
testimony was not only incompetent but injurious as well.” Id.
We find no error in the trial court’s decision to
consider Attorney Mamantov’s expert testimony because the
customary practice of the legal profession in working under an
ambiguous statute is relevant in ascertaining the purpose and
meaning of the statutory language. The Supreme Court has
noted that
[t]he meaning publicly given by
contemporary or long professional usage is
usually presumed to be the true one, even
when the language has etymologically or
Page 12 popularly a different meaning. If there
is ambiguity in the language, the
understanding and application of it when
the statute first comes into operation,
sanctioned by long acquiescence on the
part of the legislature and judicial
tribunals, are the strongest evidence that
it has been rightly explained in practice.
Franklin Light & Power Co. v. Southern Cities Power Co., 47
S.W.2d 86, 90 (Tenn. 1932)(quotation marks omitted).
Furthermore, “[a] construction of a statute acted on generally
by the bar of the state for many years is entitled to
consideration.” 73 Am.Jur.2d Statutes § 163 (1974). The fact
of the common practice of Tennessee attorneys in working under
T.C.A. § 9-21-107(1) (1992) is relevant to the proper
interpretation of the ambiguous language at hand, and we find
no abuse of discretion in admitting the expert testimony.
Even if the trial court erred in relying on this
expert testimony — a conclusion with which we cannot agree —
we are unable to say, considering the record as a whole, that
it was “error involving a substantial right [that] more
probably than not affected the judgment or would result in
prejudice to the judicial process.” Rule 36(b), T.R.A.P.
Mamantov’s expert testimony was not the only evidence before
the trial court; obviously, that court also had before it the
Page 13 language of the statute itself. The court was bound to
construe the language of the statute reasonably and in a way
that would avoid an absurd result. Applying this basic
principle of statutory construction, without more, would have
been a sufficient basis for the trial court’s finding that the
statute does not apply to the facts of this case. Thus, we
cannot say that the admission of Mamantov’s testimony was
reversible error.
V.
We next address the issue of Jefferson County’s
standing to challenge the validity of the Morristown
annexation ordinances.
Standing is a judicially created doctrine that “is
used to refuse to determine the merits of a legal controversy
irrespective of its correctness where the party advancing it
is not properly situated to prosecute the action.” Knierim v.
Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). Standing “
requires the court to decide whether the party has a
sufficiently personal stake in the outcome of the controversy
to warrant the exercise of the court’s power on its behalf.”
Metropolitan Air Research Testing Auth., Inc. v. Metropolitan
Gov’t of Nashville, 842 S.W.2d 611, 615 (Tenn.App. 1992). To
establish standing, a party must show “not only a distinct and
palpable injury but also a causal connection between the
Page 14 claimed injury and the challenged conduct.” Morristown
Emergency and Rescue Squad, Inc. v. Volunteer Dev. Co., 793
S.W.2d 262, 263 (Tenn.App. 1990). When the claimed injury
involves the violation of a statute, the court must determine
whether the plaintiff’s interest falls within the zone of
interests protected by the statute. Carter v. Redmond, 218
S.W. 217, 218 (1920). A party’s standing does not depend on
the likelihood of success of the party’s claim on the merits.
Metropolitan Air Research Testing Auth., Inc., 842 S.W.2d at
615.
The trial court found that Jefferson County lacked
standing to challenge Morristown’s annexation ordinances for
two reasons. First, that court determined that Jefferson
County was not an “aggrieved owner of property” and thus was
without standing to challenge the ordinances in a quo warranto
proceeding. See T.C.A. § 6-51-103(a)(1)(A) (1998).
Furthermore, the trial court noted that Jefferson County had
failed to pass the necessary resolution and did not receive a
petition from a majority of the property owners within the
annexed territory asking the County to represent their
interests so as to qualify the County as an “aggrieved owner”
under T.C.A. § 6-58-108(b)(1) (1998). The trial court
reasoned that because Jefferson County had neither owned
property within the annexed territory nor complied with the
requirements of T.C.A. § 6-58-108(b)(1) (1998), the County
lacked standing to challenge the validity of Morristown’s
Page 15 annexations.
We agree that Jefferson County lacked standing to
challenge Morristown’s annexations in quo warranto; however,
we disagree with the trial court’s characterization of
Jefferson County’s action as a quo warranto action. It is
clear from Jefferson County’s complaint that it challenges
Morristown’s annexations under the Declaratory Judgment Act.
We also disagree with the trial court’s assertion that the
exclusive method for contesting annexations is through a quo
warranto proceeding. While quo warranto is the exclusive
means by which a party may challenge the reasonableness of an
annexation, the Supreme Court has held that “[t]he validity of
an annexation ordinance alleged to exceed the authority
delegated by the legislature is subject to challenge under the
Declaratory Judgment Act.” State ex rel. Earhart v. City of
Bristol, 970 S.W.2d 948, 954 (Tenn. 1998) (Emphasis added).
Thus, we find that Jefferson County had standing to challenge
the validity of Morristown’s annexations under the Declaratory
Judgment Act; the County did not have to be an “aggrieved owner
” of property in order to have standing to mount a challenge
to the constitutionality and applicability of T.C.A. §
6-58-108(e)(2) (1998).
The trial court’s second basis for finding that
Jefferson County lacked standing was founded on the doctrine
of res judicata. The plaintiff originally brought this
Page 16 litigation in the Jefferson County Circuit Court; although
that court dismissed the action for lack of venue, it opined
in the course of the proceedings that the plaintiff lacked
standing.
We disagree with the trial court’s finding that it
was bound by the doctrine of res judicata based on the
judgment of the Jefferson County Circuit Court. Res judicata
applies only where there has been a previous adjudication on
the merits. Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989).
A dismissal for lack of venue is not an adjudication on the
merits. See Rule 41.02(3), Tenn.R.Civ.P. It matters not that
the judge who heard the case in the Jefferson County Circuit
Court opined that Jefferson County lacked standing; since that
court determined that it could not hear the case because the
venue was not in Jefferson County, its comments with respect
to standing were superfluous. Res judicata does not apply to
comments made by a court with respect to the substantive issue
of standing when that court has decided that it cannot hear
the case because of a lack of venue.
We find that Jefferson County did have standing in a
declaratory judgment action to challenge the validity of
Morristown’s annexations. Jefferson County clearly had an
interest in the annexations at issue because the annexations
occurred with respect to property within the boundaries of
Jefferson County.
Page 17 Having determined that Jefferson County had standing
to challenge the validity of Morristown’s annexations, we now
turn to the issue of the applicability of T.C.A. § 6-58-108(e)
(1998). 5 Jefferson County contends that Subsection (1) of
this provision applies to the subject annexation ordinances
because, although they were passed on final reading on April
21, 1998, they were not operative as of May 19, 1998, the
effective date of T.C.A. § 6-58-108(e) (1998). 6 Morristown
counters that T.C.A. § 6-58-108(e) has no effect on the
annexations because the ordinances were enacted on final
reading on April 21, 1998; hence, according to Morristown, the
language of T.C.A. § 6-58-108(e)(1) — “[a]fter May 19, 1998, a
municipality may not annex” — does not apply to these April
21, 1998 annexations. Morristown further argues that even if
T.C.A. § 6-58-108(e)(1) does apply, the provisions of
Subsection (e)(2) of that statute clearly exempt Morristown’s
ordinances from the application of the new law.
Whether T.C.A. § 6-58-108(e) (1998) applies to the
instant case depends on when a territory is considered “
annexed.” If Jefferson County’s argument is correct, a
territory is not annexed until an annexation ordinance is “
operative,” that is, thirty days after the passage of the
ordinance on final reading. See T.C.A. § 6-51-102(a)(1)
(1998). Thus, according to Jefferson County, the language of
T.C.A. § 6-58-108(e)(1) (1998) would apply to the instant case
Page 18 because Morristown’s annexations became “operative” after May
19, 1998, the effective date of the new annexation law, now
codified at T.C.A. § 6-58-108 (1998). Under Morristown’s
interpretation, a territory is annexed upon passage of an
annexation ordinance upon final reading, and the fact that the
annexation is suspended for thirty days to afford affected
property owners an opportunity to file a court challenge is
irrelevant to the question of effectiveness in the absence of
a successful challenge by an “aggrieved owner” — the intended
beneficiary of the 30-day “window.”
In determining which annexation law applies, we
agree with Morristown that a territory should be considered “
annexed” when an annexation ordinance is passed upon final
reading. Although we are not aware of a Tennessee decision
that directly addresses this issue, we find the Supreme Court’s
decision in City of Bluff City v. Morrell, 764 S.W.2d 200
(Tenn. 1988), to be instructive. In that case, the city
council passed an annexation ordinance on final reading.
However, prior to the operative date of the annexation, a
group of residents brought a quo warranto proceeding
challenging the annexation. During the period of time that
the annexation was held in abeyance by the quo warranto
proceeding, the city council attempted to rescind the
annexation ordinance by a motion. The Supreme Court held that
such a motion was not effective to nullify the annexation
ordinance because “an act which repeals an ordinance must be
Page 19 of equal dignity with the act which establishes it, and must
be enacted in the same manner required for passing a valid
ordinance.” Id. at 202. In City of Bluff City, the delay in
the operative effect of the annexation did not affect the act
of annexation in such a way as to enable the legislative body
to change its mind by way of motion. Extrapolating from this
decision, we find and hold that an annexation ordinance is an
act of annexation as of the date of its passage on final
reading. The 30-day delay, in and of itself, does not change
the fact of annexation; it simply postpones the date on which
the annexation becomes “operative.” Therefore, we believe
that it is logical to conclude that the law applicable to the
final act of a legislative body is the law in effect when that
body takes its final action. Accordingly, we hold that the
validity of the annexations adopted pursuant to the Morristown
ordinances is to be determined as of April 21, 1998, the date
on which the ordinances were finally acted upon by Morristown.
Hence, the annexation law as it existed on that date rather
than T.C.A. § 6-58-108(e) (1998), applies to the annexations
in this case. It is significant to note that Jefferson County
does not contest the validity of those annexations under the
law as it existed on April 21, 1998.
Even if T.C.A. § 6-58-108(e) (1998) were applicable
to Morristown’s annexations -- and we have held that it was
not -- we cannot agree with Jefferson County’s contention that
the provision would invalidate Morristown’s annexations. The
Page 20 Legislature provided an exception to T.C.A. § 6-58-108(e)(1)
(1998) that has the effect of exempting municipalities which,
prior to May 19, 1998, passed on final reading ordinances
annexing territories in a county other than the municipality’s
primary county if the annexed territory is to be used for
industrial purposes. T.C.A. § 6-58-108(e)(2) (1998). This
exception clearly addresses the facts of the instant case
because the annexation ordinances — in the words of T.C.A. §
6-58-108(e)(2) — were “adopted on final reading...prior to May
19, 1998.” Under the statute, it is not material that the
ordinances were not operative until 30 days later. T.C.A. §
6-58-108(e)(2) (1998) defines its applicability in terms of “
final reading” and not in terms of operative date; thus,
Morristown’s annexations are valid even if they are controlled
by the new annexation law.
Finally, Jefferson County alleges in its brief that
T.C.A. § 6-58-108(e)(2) (1998) should not apply because it is
unconstitutional. We will not entertain this argument. If a
party alleges that a statute of statewide effect is
unconstitutional, the Attorney General must be served with
notice and afforded an opportunity to be heard. T.C.A. §
29-14-107(b)(1980); Rule 24.04, Tenn.R.Civ.P.; Rule 32(a),
T.R.A.P. Jefferson County’s tacit, if not express, agreement
not to involve the Attorney General as a trade-off for an
expedited hearing precludes it from raising the constitutional
issue on appeal. Having granted the request for an expedited
hearing without the participation of the Attorney General, the
Page 21 trial court was correct in refusing to hear the constitutional
issue raised in Jefferson County’s complaint. Issues that are
not pursued below will not be entertained on appeal. Murvin
v. Cofer, 968 S.W.2d 304, 309 (Tenn.App. 1997).
We therefore find that although Jefferson County had
standing to challenge Morristown’s annexations of property
within Jefferson County, its challenges are without merit.
For all of the foregoing reasons, the judgment of
the trial court is affirmed. Costs on appeal are taxed to the
appellant. This case is remanded to the trial court for such
further proceedings, if any, as may be required and for
collection of costs assessed below, all pursuant to applicable
law.
__________________________ Charles D. Susano, Jr., J. CONCUR:
________________________ Houston M. Goddard, P.J.
________________________ Herschel P. Franks, J.
Page 22