IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-02084-COA

ANITA WHITE, INDIVIDUALLY, AS THE

GUARDIAN OF RASHAUN D. GARDNER, AND

AS THE ADMINISTRATRIX OF THE ESTATE

OF ZELDA GARDNER, AND TAUREAN S.

GARDNER, INDIVIDUALLY

APPELLANTS

v.

OMAR L. NELSON AND OMAR L. NELSON,

PLLC

APPELLEES

DATE OF JUDGMENT: 09/17/2013

TRIAL JUDGE: HON. JOHN HUEY EMFINGER

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: GREGORY MOREAU JOHNSTON

ATTORNEYS FOR APPELLEES: JAMES WILLIAM MANUEL 

MARY CLAY WADLINGTON MORGAN 

KATHLEEN SHIELDS O’BEIRNE

NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE

TRIAL COURT DISPOSITION: GRANTED PARTIAL SUMMARY

JUDGMENT IN FAVOR OF APPELLEES,

AND FINAL JUDGMENT ENTERED IN

FAVOR OF APPELLEES

DISPOSITION: AFFIRMED - 01/05/2016

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

BARNES, J., FOR THE COURT:

¶1. On April 14, 2008, Anita White, on behalf of the wrongful-death beneficiaries for

Zelda Gardner, filed a complaint against Omar Nelson and Nelson PLLC (collectively
“Nelson”).1 The complaint alleged legal malpractice based on negligence and breach of

fiduciary duty, fraudulent misrepresentation, gross negligence and reckless disregard,

intentional conduct, and tortious interference with a business relationship. The trial court

granted partial summary judgment as to White’s claims of tortious interference with a

business relationship and legal malpractice based on negligence, and the action proceeded

to trial on the remaining claims. A jury verdict was rendered for Nelson. White filed a

motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial,

which the trial court denied. On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Gardner, White’s sister, died in May 2003 of thrombotic thrombocytopenic purpura

(TTP), a rare but known side effect of the drug Plavix. The autopsy report stated that

Gardner’s death was “[c]onsistent with [a]ccident secondary to Plavix administration

producing [TTP].” In May 2004, White consulted the law offices of Sweet & Freese to seek

legal representation for any potential claims the wrongful-death beneficiaries had arising out

of Gardner’s death. Omar Nelson, an associate at Sweet & Freese at the time, discussed the

case with White.

¶3. Nelson consulted with an expert, Dr. Charles Bennett, who informed himthat he could

1 Also included as defendants were the law office of Winston Thompson III, Nichon

Shannon, Winston J. Thompson, Thompson & Associates PLLC, and T. Murry Whalen. 

The other defendants are not a party to this appeal. Whalen, an attorney with Thompson &

Associates, was later dismissed from the suit. A default judgment was subsequently entered

against the law office of Winston Thompson III, Winston J. Thompson, and Thompson &

Associates PLLC. 

We will refer to the Appellants collectively as “White.”

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not give any opinion against the treating physicians, because he felt they had acted in

accordance with the standard of care. However, Dr. Bennett did state he would testify

against the Plavix manufacturers. According to Nelson, because the law firmcould not assert

a claim against any Mississippi treating physician, Rich Freese, a managing partner,

instructed Nelson to reject the case, as a federal case would be cost-prohibitive, and there

was a risk of losing the case based on the content of the warning label. There is no evidence

that the other partner, Dennis Sweet, was made aware of White’s case at that time.

¶4. Nelson informed White that Sweet & Freese could not take her case, and he

recommended other attorneys, including Winston Thompson. White hired Thompson &

Associates as counsel. On April 27, 2005, T. MurryWhalen, an attorney with the Thompson

law firm, filed suit in the United States District Court for the Southern District of Mississippi

on White’s behalf against the makers of Plavix. The suit alleged that “Defendant

Manufacturers Bristol-Myers and Sanofi failed to warn either Mrs. Gardner or the medical

community of its propensity to induce TTP, leading to death.” Additionally, on May 12,

2005, Thompson filed a medical-malpractice (med-mal) claim in the First Judicial District

of Hinds County on White’s behalf against Central Mississippi Medical Center and

Gardner’s treating physician. 

¶5. In July 2005, Nelson left Sweet & Freese to be a sole practitioner, and Thompson

asked Nelson to assist Thompson with White’s case. In January 2006, Nelson and Thompson

participated in a meeting with counsel for Bristol-Myers regarding possible settlement of the

federal case. On February 22, 2006, Nelson and Thompson traveled to Atlanta, Georgia, to

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participate in mediation with representatives of Bristol-Myers. After a full day of settlement

negotiations, White accepted a settlement offer of $280,000.2 As she was representing the

minor children of Gardner, White was required to submit the settlement to the Hinds County

Chancery Court for approval. White agreed in her testimony that “considering the

uncertainties of litigation,” it was “fair and reasonable to dismiss th[e] suit,” and she also

affirmed that her attorneys had done “a good job[.]” Although White did express before the

chancellor that she thought the value of the case would be higher, White executed a sworn

petition to settle the case for $280,000 on March 29, 2006, stating the proposed settlement

was “a fair and reasonable settlement and that acceptance of this settlement is in the best

interest of the minors.” The chancellor approved the settlement, and Bristol-Myers executed

a check for $280,000. The proceeds were placed in a trust for White’s nephews. Attorney’s

fees were approved in the amount of $112,000 for Thompson & Associates. Although

Nelson requested a portion of the fee from Thompson, he never received any compensation

for representing White.

¶6. In 2007, while cleaning out files in his office, Sweet found some documentation

regarding White’s case, and he contacted her. After meeting with her, he referred her to an

attorney, Gregory Johnston. White filed a complaint on April 14, 2008, against Nelson and

the other defendants for fraud and legal malpractice, alleging the defendants had knowingly

diverted the case away from Sweet & Freese and settled the case for an unreasonably low

amount ($280,000). Nelson filed a motion to dismiss the complaint or, in the alternative, for

2 The state med-mal claimwas dismissed due to procedural notice issues, with Nelson

signing the agreed orders of dismissal dated November 21, 2005, and April 17, 2006. 

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summary judgment on August 14, 2009. The trial court granted partial summary judgment

on November 30, 2009, dismissing with prejudice White’s claim for tortious interference

with a business relationship.

¶7. White moved to amend her complaint in September 2010, seeking to reference the

state med-mal case in her claims against Nelson. White averred that she had only recently

been made aware of the state med-mal claim filed on her behalf and moved for a partial

summary judgment, contending that the “mishandling and dismissal of the medical

malpractice claim without consulting [her]” was legal malpractice and that she suffered

damages as a result. On February 18, 2011, the trial court granted White’s motion to amend

the complaint, but denied the motion for partial summary judgment.

¶8. On April 7, 2011, White filed an amended complaint, asserting fraudulent

misrepresentation, legal malpractice based on a negligent breach of the duty of care, and

“gross negligence, reckless disregard, [and] intentional conduct” and requesting at least

$10,000,000 in compensatory damages and an unspecified amount of punitive damages. She

claimed that Nelson (and the others) had negligently handled the federal products-liability

case, as well as the state med-mal claim. Nelson moved for summary judgment on February

13, 2012, arguing in part that because White had failed to provide required expert testimony

that Gardner’s treating physician breached a standard of care, she could not prove she would

have prevailed in the underlying med-mal claim. 

¶9. On April 13, 2012, the trial court granted partial summary judgment on this issue,

stating:

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[F]or the [P]laintiffs to recover for negligence-based legal malpractice or for

legal malpractice based upon an allegation of breach of fiduciary duty, the

Plaintiff must show that such action was the proximate cause of Plaintiffs’

injury. In this case, the Plaintiffs have not alleged any special damages that

theymay have suffered. Instead, they allege that the damage they suffered was

the failure to successfullyprosecute their claims against these state court [medmal] defendants. That is the essence of the negligence-based legal[-

]malpractice claim. Accordingly, this [c]ourt must apply the “trial-within-atrial” test to determine whether the Plaintiffs can survive summary judgment

as to the issue of proximate cause. No affidavit from an expert has been

presented to the [c]ourt on the issue of medical malpractice for the breach of

a standard of care as required to establish this claim. . . .Therefore . . .the

[c]ourt finds that the Plaintiffs have failed to meet their burden on this

essential element of this particular claim[.]

The trial court later granted Nelson’s motion in limine to exclude discussion of the state medmal suit at trial by White’s legal expert witness, Freese. On April 16, 2013, White filed a

motion to voluntarily dismiss with prejudice the negligence-based legal-malpractice claim. 

The trial court granted the motion, dismissing all “negligence-based legal[-]malpractice”

claims against Nelson. 

¶10. A trial was held September 10-13, 2013, on the remaining claims of fraudulent

misrepresentation and legal malpractice based on a breach of fiduciary duty. A jury verdict

was rendered in favor of Nelson, and the trial court entered a final judgment in favor of

Nelson on September 18, 2013.

¶11. White filed a motion for a JNOV or, in the alternative, a new trial. The trial court

denied White’s motion, and she now appeals. Finding no error in the trial court’s holding,

we affirm the judgment.

DISCUSSION

I. Whether the trial court erred in denying White’s motion for a

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JNOV.

¶12. White claims the trial court erred in denying her motion for a JNOV, as she presented

“indisputable evidence of the fraudulent acts and breach of fiduciary duty of the Nelson

Defendants[.]” A motion for a JNOV challenges the legal sufficiency of the evidence. Mine

Safety Appliance Co. v. Holmes, 171 So. 3d 442, 446 (¶8) (Miss. 2015) (citing Adcock v.

Miss. Transp. Comm’n, 981 So. 2d 942, 948 (¶25) (Miss. 2008)). The trial court’s denial of

a JNOV is reviewed de novo and will be affirmed if, “viewing the evidence in a light most

favorable to the verdict, ‘there is substantial evidence to support the verdict.’” Id. 

¶13. The following undisputed facts were presented at trial:

White came to Sweet & Freese based on a recommendation. White met with

Nelson at Sweet & Freese; he reviewed Gardner’s medical records and

contacted Dr. Charles Bennett concerning issues with the drug Plavix.

Nelson contacted White and told her that Sweet & Freese could not handle her

case, and he referred her to Thompson, an attorney with whom Nelson had no

professional connection.

White contacted the law office of Thompson & Associates months later, and

she signed a retainer agreement with the firm. On April 27, 2005, a federal

suit was filed by Thompson & Associates (T. Murry Whalen) against BristolMyers and Sanofi on behalf of Gardner’s wrongful-death beneficiaries.

Nelson left Sweet & Freese in July 2005 and later assisted Thompson with

White’s case.

Nelson & Thompson met with counsel for Bristol-Myers in February 2006 to

negotiate a settlement. A settlement of $280,000 was reached, and White

agreed to the amount, consulting with her aunt prior to accepting. 

White testified before the chancery court that while she felt uncomfortable

with the amount, she did not want to hire new counsel and thought the

settlement was fair and reasonable. She also signed a sworn petition to that

effect.

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There was disputed testimony that White was made to believe that she was co-represented

by Sweet & Freese, as she claimed she thought Nelson still represented Sweet. Nelson said

that he saw White in Hinds County Chancery Court in August 2005, and informed her that

he was no longer working at Sweet & Freese. White admitted she never met Sweet until

2007.

¶14. White contends, as she did before the jury, that had another attorney, such as Sweet,

represented her, she would have received a higher settlement. “In order to recover for legal

malpractice, a plaintiff must prove by preponderance of the evidence the existence of a

lawyer-client relationship, negligence on the part of the lawyer in handling his client’s affairs

entrusted to him, and some injury proximately caused by the lawyer’s negligence.” Baker

Donelson Bearman & Caldwell P.C. v. Muirhead, 920 So. 2d 440, 449 (¶34) (Miss. 2006)

(citations omitted). Specifically, when the malpractice claim “is based on an allegation of

breach of fiduciary duty, the plaintiff must establish (1) the existence of an attorney-client

relationship; (2) the acts constituting a violation of the attorney’s fiduciary duty; (3) that the

breach proximately caused the injury; and (4) the fact and extent of the injury.” Crist v.

Loyacono, 65 So. 3d 837, 843 (¶15) (Miss. 2011). The proof of proximate cause in cases

involving a claim of legal malpractice based on a breach of fiduciary duty is “to be tailored

to the injury the client claims and the remedy he elects.” Id. at 842 (¶14) (quoting Singleton

v. Stegall, 580 So. 2d 1242, 1245 (Miss. 1991)). 

¶15. We find there was substantial evidence to support the jury’s verdict. White’s only

proof at trial of proximate cause of injury or damages was provided through a deposition by

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Freese, who merely opined “that had this case been venued in Hinds County with competent

lawyers, the settlement value would have dwarfed what this case settled for” and a three to

four million dollar settlement “would have been a reasonable amount to expect to recover.”3

But Freese admitted he had never worked on a Plavix case; nor was he knowledgeable of any

verdicts concerning Plavix. Furthermore, Freese acknowledged that in settlement

negotiations, he informs a client that “we could either win a significantly larger amount than

they are offering, or we could win zero and the case could end up being worth nothing. So

that’s why you have settlements, because there is uncertainty in what the result would be.” 

(Emphasis added). He offered no testimony of what a reasonable settlement would have

been, taking into account the costs and uncertainty of the case. Moreover, Nelson’s legal

expert, Walter Morrison, testified that the warning label of Plavix specifically warned that

the drug could cause TTP, which led him to believe that summary judgment in favor of

Bristol-Myers was “highly likely” had White not settled the case. Accordingly, the jury

verdict, finding no liability for Nelson’s recommending the settlement, was based on

substantial evidence.

¶16. We additionally find the jury’s verdict was supported as to the claim that Nelson

fraudulently misrepresented that Sweet was working on her case and that she suffered

damages as a result of that misrepresentation. To establish fraud, a plaintiff is required to

prove the following:

3 Freese was originally intended to be in attendance at trial as an expert witness in

legal matters, but conflicts later arose, so the trial court allowed Freese’s deposition to be

introduced and read into evidence. Nelson objected to the introduction of this evidence and

to Freese’s qualifications as a legal expert, which the court overruled.

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(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s

knowledge of its falsity or ignorance of its truth, (5) his intent that it should be

acted on by the hearer and in the manner reasonably contemplated, (6) the

hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely

thereon, and (9) his consequent and proximate injury.

Morgan v. Green-Save Inc., 2 So. 3d 648, 652 (¶10) (Miss. Ct. App. 2008) (quoting Mabus

v. St. James Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)). White admitted that

Nelson called her and said Sweet & Freese was too busy and could not handle her case. As

Nelson noted at trial, White paradoxically claims that had Sweet represented her, she would

have received a higher settlement, yet also claims that Nelson fraudulently misrepresented

to her that Sweet was associated on her case the entire time. Regardless, all evidence showed

that during the federal litigation, the only attorneys White discussed the case with were

attorneys with Thompson & Associates and Nelson. White never met or spoke to Sweet until

2007, when he contacted her regarding the files left in his office. 

¶17. Therefore, viewing the evidence in the light most favorable to the jury’s verdict, we

find it was supported by substantial evidence, and the trial court did not err in denying the

motion for a JNOV.4

II. Whether the trial court should set aside the judgment and order a

new trial.

¶18. White also asserts an alternative claim that the trial court should set aside the jury

verdict and order a new trial. “Rule 59 of the Mississippi Rules of Civil Procedure

authorizes the trial court to set aside a jury verdict and grant a new trial whenever justice

4 We decline to address Nelson’s defense of judicial estoppel, as it is moot based on

our findings.

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requires.” Blossman Gas Inc. v. Shelter Mut. Gen. Ins. Co., 920 So. 2d 422, 424 (¶10) (Miss.

2006) (citing White v. Yellow Freight Sys. Inc., 905 So. 2d 506, 510 (¶7) (Miss. 2004)).

However, a verdict will only be overturned “when it is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” 

Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). White asserts that a new trial was

warranted for the reasons discussed below.

A. Whether the granting of partial summary judgment regarding the

med-mal case was improper and, alternatively, assuming summary

judgment was properly granted, whether it was improper to

exclude evidence of the med-mal case at trial.

¶19. White contends that genuine issues of material fact existed as to whether Nelson’s

actions in the state med-mal case constituted “legal malpractice, fraudulent

misrepresentation, reckless disregard and gross negligence.” She alternatively claims that

even ifsummary judgment on her negligence-based legal-malpractice claims was warranted,

the exclusion of evidence regarding the med-mal case at trial was improper and “inconsistent

with the trial court’s other rulings in the case.” White argues that the case at trial was

“significantly diminished” because she was unable to reference the state med-mal case.

¶20. We review a trial court’s decision to grant or deny summary judgment de novo. Crist, 

65 So. 3d at 842 (¶12). “Summary judgment is appropriate where ‘the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.’” Id. (quoting M.R.C.P. 56(c)). The evidence

is viewed “in the light most favorable” to the nonmoving party. Id.

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¶21. The supreme court stated in Crist: “It is true – and well established – that a plaintiff

in a negligence-based malpractice action must establish proximate cause by the so-called

‘trial-within-a-trial’ test. That is to say, the client ‘must show that, but for his attorney’s

negligence, he would have been successful in the prosecution or defense of the underlying

action.’” Id. at (¶14) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205,

1215 (Miss. 1996)). Also well established is our precedent that in a medical-malpractice

claim, the plaintiff cannot survive a motion for summary judgment “without medical-expert

testimony.” Jones v. MEA Inc., 160 So. 3d 241, 246 (¶19) (Miss. Ct. App. 2015) (citations

omitted). With regard to the state med-mal claim, the only injury alleged by White was that

the claim would have been successful on the merits. Nelson noted during a pretrial motions

hearing: “[T]here’s no way for the plaintiffs here to establish that theywould have recovered

more had any other attorneys handled this case without proving the merits of the underlying

case.” As White failed to designate a medical expert witness for the med-mal claim, we

cannot find error in the trial court’s grant of partial summary judgment on this issue. 

¶22. White further claims that the trial court should have allowed evidence of the state

med-mal claim to be presented at trial. She contends allowing this evidence would have

presented a stronger case that Nelson and Thompson were conspiring to defraud White. 

“When reviewing the trial court’s decision to admit or exclude evidence, we are bound by

an abuse-of-discretion standard of review.” Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d

645, 654 (¶28) (Miss. 2009) (citing Webb v. Braswell, 930 So. 2d 387, 396-97 (¶15) (Miss.

2005)). Mississippi Rule of Civil Procedure 403 allows a trial court to exclude evidence

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where the “probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury[.]” 

¶23. In response to Nelson’s motion in limine to exclude Freese’s expert testimony, the

trial court ordered that any reference to the med-mal claim should be excluded from his

testimony. During the trial, the court also restricted portions of letter prepared by Whalen

regarding an estimate of damages that pertained to the med-mal suit. Yet we observe that the

trial court did not summarily exclude any and all references to the state med-mal suit. Freese

was permitted to reference the damage estimate, and Whalen was allowed to discuss the

damage estimate itself in more general terms. White was also able to introduce evidence that

Thompson and Nelson worked together after the case was turned down by Sweet & Freese. 

As already noted, White was unable to prove that the underlying med-mal suit was

meritorious, and we find any probative value of this evidence was outweighed by the

potential confusion of the issues and unfair prejudice that presenting the evidence may have

caused. White suffered no prejudice as a result of the exclusion of this evidence; therefore,

we find no abuse of discretion in the trial court’s ruling, and the trial court did not err in

denying White’s motion for a new trial.

B. Whether White’s causes of action for gross negligence and reckless

disregard were viable independent claims that should have been

presented to the jury at trial.

¶24. In her original and amended complaints, White asserted claims for gross negligence

and reckless disregard against Nelson. At trial, White requested a jury instruction on gross

negligence. Nelson objected, arguing that all negligence claims were voluntarily dismissed

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by White in the September 4, 2013 petition. The trial court concluded that the claims were

not independent causes of action, stating:

As I indicated earlier when this was raised, the question of whether or not the

breach of those duties was grossly negligent or intentional so as to justify

punitive damages would be something I would take up after the jury’s

verdict[,] and I don’t believe those are, in this case, under the facts of this case

and ruling previously by the court, that there is a separate cause that is still

viable to present to the jury[.]

White claims that the court erred in its ruling and the inability to present these claims to the

jury prejudiced her case and “contributed to the jury verdict in favor of [Nelson].” Our

supreme court has held:

Regarding jury instructions, the trial court possesses considerable discretion. 

Bickham v. Grant, 861 So. 2d 299, 301 (¶8) (Miss. 2003). A party is entitled

to a jury instruction if it concerns a genuine issue of material fact and there is

credible evidence to support the instruction. Mariner Health Care, Inc. v.

Estate of Edwards, 964 So. 2d 1138, 1156 (¶48) (Miss. 2007). While a party

is entitled to jury instructions that present his theory of the case, this

entitlement is limited; the trial court may refuse an instruction which

incorrectly states the law, is covered fairly elsewhere in the instructions, or is

without foundation in the evidence. Ford v. State, 975 So. 2d 859, 863 (¶11)

(Miss. 2008).

Young v. Guild, 7 So. 3d 251, 259 (¶23) (Miss. 2009). 

¶25. White cites Stewart v. Gulf Guaranty Life Insurance Co., 846 So. 2d 192 (Miss.

2002), to support her contention that the trial court erred in excluding a jury instruction on

gross negligence as an independent cause of action. Upon review, we find Stewart actually

lends support to the trial court’s ruling. In Stewart, the supreme court held that the judge

erred in granting a JNOV as to punitive damages since “[s]ufficient evidence was presented

to the jury whereby the jury could have reasonably concluded gross negligence due to Gulf

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Guaranty’s conduct.” Id. at 195 (¶5). Consequently, we find no abuse of discretion in the

trial court’s ruling that the jury instruction on gross negligence should not have been

presented as a separate cause of action, but was more appropriate in the context of

determining punitive damages only after a determination of liability against Nelson. See

AmSouth Bank v. Gupta, 838 So. 2d 205, 224 (¶71) (Miss. 2002) (“The jury may consider

punitive damages only where the plaintiff has shown by clear and convincing evidence that

the defendant ‘acted with actual malice, gross negligence which evidences a willful, wanton

or reckless disregard for the safety of others, or committed actual fraud.’” (quoting Miss.

Code Ann. § 11-1-65(1)(a) (Rev. 2002))). 

¶26. We also agree with Nelson’s argument that White’s claim is “meritless,” as these are

simply higher degrees of negligence and the negligence-based claims were dismissed.

Admittedly, the trial court did state in its order for partial summary judgment, which

dismissed White’s negligence-based legal-malpractice claim, that the cause of action for

“gross negligence, reckless disregard, and intentional conduct . . . should be decided by a

jury.” Regardless, it is well established that “gross negligence” and “reckless disregard” are

simply higher degrees of negligence. See City of Laurel v. Williams, 21 So. 3d 1170, 1174

(¶17) (Miss. 2009) (noting that reckless disregard is a higher standard than gross negligence); 

City of Jackson v. Brister, 838 So. 2d 274, 280 (¶23) (Miss. 2003) (holding reckless disregard

is more than ordinary negligence). Thus, in order to establish a claim on these grounds,

White would have to present her “case within a case,” which she did not do. Thus, we find

no merit to this issue raised by White.

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¶27. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS

AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE

APPELLANTS.

GRIFFIS, P.J., ISHEE, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J.,

CONCURS IN PART AND IN THE RESULT. LEE, C.J., JAMES AND WILSON, JJ.,

NOT PARTICIPATING.

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