IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 28, 2015 Session

CHARLES WALKER v. BANK OF AMERICA, N. A., ET AL.

Appeal from the Circuit Court for Davidson County

No. 13C1461 Joseph P. Binkley, Jr., Judge

No. M2014-00672-COA-R3-CV – Filed April 6, 2015

Plaintiff submitted the winning bid for the purchase of improved real property from 

Defendant Bank at auction. Plaintiff and Bank executed a purchase agreement and 

Plaintiff paid earnest money. Before the scheduled closing date, Bank informed Plaintiff 

that it did not own part of the real property advertised for auction. It offered to sell 

Plaintiff the unimproved parcel for the contract amount or to terminate the contract. 

After Plaintiff informed Bank‟s closing agent that he intended to close on the entire 

parcel as advertised for auction, Bank returned Plaintiff‟s earnest money and terminated 

the contract. Plaintiff filed an action alleging intentional misrepresentation, negligent 

misrepresentation, and violation of the Tennessee Consumer Protection Act against Bank 

and the auction company. The trial court granted Bank‟s motion to dismiss and granted 

the auction company‟s motion for a judgment on the pleadings. We affirm the decision 

of the trial court and remand.

Tenn. R. App. P. 3 Appeal; Judgment of the Circuit Court Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN 

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Charles Walker, Pro se.

H. Frederick Humbracht, Jr., Nashville, Tennessee, for the appellee, Bank of America, 

N.A.

Joshua A. Mullen, Nashville, Tennessee, and Philip B. Whitaker, Jr., Chattanooga, 

Tennessee, for the appellees Auction.Com, Inc. and Auction.Com, LLC.
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MEMORANDUM OPINION1

This dispute arises from an on-line auction of foreclosed real property that was 

offered for sale by Defendant Bank of America, N.A., (“the Bank”). The facts relevant to 

our disposition of this matter on appeal are not disputed and, because the trial court 

dismissed this matter for failure to state a claim, we recite the facts as alleged in Plaintiff 

Charles Walker‟s (“Mr. Walker‟s”) amended complaint (“complaint”). In December 

2012, real property described as 1014 Nesbitt Drive, Nashville, Tennessee, (“the 

property”) was offered for sale at auction by the Bank and was auctioned by Defendant 

Auction.com, Inc., (“Auction.com”). The property was listed at auction as item number 

HA4127; it was described as including a single family residence with 1988 square feet, 

three bedrooms, and two bathrooms. Plaintiff Charles Walker submitted the winning bid 

of $19,500, plus a buyer‟s premium in the amount of $2,500, for a total bid price in the 

amount of $22,000. On December 24, 2012, Mr. Walker and the Bank executed a 

document entitled “Purchase Agreement with Joint Escrow Instructions” (“the contract” 

or “the agreement”) and Mr. Walker remitted earnest money in the amount of $5,000. 

The contract recited a closing date of January 22, 2013. On or about January 16, 2013,

the Bank notified Mr. Walker that it did not own the portion of the real property that 

contained the house, but only an unimproved portion of real property known as “Lot 

#47.” The Bank offered to convey Lot #47 to Mr. Walker at the same contract price or to 

terminate the contract. Mr. Walker contacted the Bank‟s closing agent and notified him 

that he intended to close on the property as advertised for auction on January 22, 2013, 

per the auction terms. On or about January 18, 2013, Mr. Walker received cancellation 

instructions from the Bank that were dated January 11, 2013. The instructions included a 

waiver and release clause, which Mr. Walker refused to sign. The full amount of the 

$5,000 Earnest Money that Plaintiff had remitted upon execution of the contract was 

returned to Plaintiff by the Bank prior to the January 22, 2013 scheduled closing date and 

Plaintiff provided no other money to Defendants in relation to the real estate transaction. 

On April 8, 2013, Mr. Walker filed a complaint against the Bank, Auction.com, 

and Auction.com, LLC, (Auction.com, Inc., and Auction.com, LLC, will be referred to 

collectively as “Auction”) in the Circuit Court for Davidson County. In his complaint, 

Mr. Walker asserted claims for violation of the Tennessee Consumer Protection Act, 

intentional misrepresentation, and negligent misrepresentation. Mr. Walker prayed for 

compensatory damages in the amount of $133,300, an amount which he alleged 

represented the value of the house and lot that would have been conveyed if Defendants‟ 

 

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the 

actions of the trial court by memorandum opinion when a formal opinion would have no precedential 

value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM 

OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
3

representations were true; punitive damages; treble damages; and attorney‟s fees and 

costs pursuant to Tennessee Code Annotated § 47-18-108.2 

The Bank filed a motion to dismiss for failure to state a claim on September 20, 

2013. In its motion, the Bank asserted, in relevant part:

Any alleged claims are barred by the express terms of the contract. Any damage 

claim is limited by the express terms of the contract. To the extent plaintiff assets 

that he is entitled to the benefit of the contract, i.e., the property or damages based 

on the benefit of the bargain, he has affirmed the contract and is bound by all its 

terms. To the extent plaintiff disavows the contract, his damages are limited to the 

earnest money he paid that was previously tendered to him.

Auction also filed a motion to dismiss for failure to state a claim in September 2013. 

Auction asserted, in relevant part, that Mr. Walker failed to state a claim “because the 

documents that Plaintiff identifies as „the complete agreement of the parties‟ expressly 

shows that Plaintiff knew and acknowledged that the property might be sold as „LAND 

ONLY‟ and confirm that Defendants did not make any representations regarding the 

status or condition of the property.” On October 18, 2013, Auction filed a motion to 

convert its motion to dismiss to a motion for a judgment on the pleadings. 

In October 2013, the trial court entered an order finding that the parties had 

stipulated to the following facts at a hearing held on October 4:

1. Plaintiff executed and signed the documents he labeled as Exhibit B to 

Plaintiff‟s Response to the Defendants‟ Motions, which he identifies as the 

Electronic Document Signing Service containing the complete agreement of the 

parties. Plaintiff admits and stipulates that on December 24, 2012, he 

electronically clicked through these documents and executed his initials or 

signatures on the pages where his initials or signatures appear;

2. The parties stipulate that the documents labeled as Exhibit B to Plaintiff‟s 

Responses to the Defendants‟ Motions are true and correct copies of documents 

Plaintiff signed; and

3. Plaintiff admits and stipulates that the full amount of the $5,000 Earnest Money 

that Plaintiff provided in relation to the real estate transaction described in the 

Complaint was returned to Plaintiff prior to the January 22, 2013 scheduled 

 

2

In October 2013, Mr. Walker filed a motion to amend his complaint and filed an amended complaint 

with his motion. The trial court granted Mr. Walker‟s motion to amend on December 12, 2013. Mr. 

Walker‟s amended complaint clarified his Tennessee Consumer Protection Act claim.
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closing date via wire funds transfer and that Plaintiff provided no other money to 

Defendants in relation to the real estate transaction.

The trial court ordered the parties to further brief whether Mr. Walker could state claims 

for negligent misrepresentation, intentional misrepresentation, and violation of the 

Tennessee Consumer Protection Act where the Bank had returned Mr. Walker‟s earnest 

money. It also ordered the parties to brief the question of the election of remedies in tort 

and contract.

Following a hearing on November 15, 2013, the trial court granted Auction‟s 

motion to convert its motion to dismiss to a motion for a judgment on the pleadings; 

granted Auction‟s motion for a judgment on the pleadings; and granted the Bank‟s 

motion to dismiss. The trial court incorporated its October 2013 order into the judgment 

and stated:

Based on the stipulations of the parties in the October 14, 2013 Order, the Court 

finds that Plaintiff paid only $5,000 to Defendants, that $5,000 was returned to 

Plaintiff, and Plaintiff executed a contract that limited his damages to only $5,000. 

Plaintiff is attempting to obtain benefit of the bargain damages with the claims in 

the Complaint, but the Contract he admittedly executed limited his damages to 

only $5,000, which has already been returned to him.

Mr. Walker filed a motion to alter or amend the judgment and, following a hearing 

in February 2014, the trial court granted the motion in order to clarify its reasoning. The 

trial court entered final judgment on March 7, 2014, and Mr. Walker filed a timely notice 

of appeal to this Court.

Issues Presented

Mr. Walker presents the following issues for our review, as stated by him:

Whether the trial court erred by dismissing Plaintiff‟s claims for intentional 

misrepresentation, negligent misrepresentation, and for violations of the Tennessee 

Consumer Protection Act, (“TCPA”) pursuant to Rule 12.02(6) of the Tennessee 

Rules of Civil Procedure.

a. Intentional Misrepresentations Claim

b. Negligent Misrepresentations Claim

c. Tennessee Consumer Protection Act “TCPA” Claims

d. Derryberry v. Hill and its predecessor cases require a closing of the real 

estate transaction

e. Punitive Damages are Damages
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Standard of Review

When considering a motion to dismiss for failure to state a claim under Rule 

12.02(6) of the Tennessee Rules of Civil Procedure, the trial court must determine 

whether the pleadings state a claim upon which relief may be granted. Tenn. R. Civ. P. 

12.02(6); Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn. 2013). The motion tests “only 

the legal sufficiency of the complaint, not the strength of the plaintiff‟s proof or 

evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 

(Tenn. 2011). Therefore, when reviewing a motion to dismiss, we must accept the facts 

alleged in the complaint as true and construe them in favor of the plaintiff. Myers v. 

AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012). The trial court should grant a 

motion to dismiss only if it appears that the plaintiff cannot establish any facts in support 

of the claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 

1999). We review a trial court‟s award of a motion to dismiss de novo with no 

presumption of correctness. Myers, 382 S.W.3d at 308.

When the trial court considers matters outside of the pleadings, however, “a 

motion to dismiss is converted to a motion for summary judgment.”3 Moore v. State, 436 

S.W.3d 775, 783 (Tenn. Ct. App. 2014) (citation omitted). Like our review of a trial 

court‟s order granting a motion to dismiss, our review of a trial court‟s award of summary 

judgment is de novo with no presumption of correctness. Id. (citation omitted). We must 

“review[] the evidence in the light most favorable to the nonmoving party and draw[] all 

reasonable inferences in that party‟s favor.” Id. (citation omitted). It is well-settled that 

summary judgment may be granted only if the moving party carries his burden to 

demonstrate that the “pleadings, depositions, answers to interrogatories, and admissions 

on file, together with the affidavits . . . show that there is no genuine issue as to any 

material fact and that the moving party is entitled to judgment as a matter of law.” Id. 

(citations omitted).

In its March 2014 final order, the trial court in this case entered judgment in favor 

of Defendants after a hearing that resulted in stipulated facts; after ordering the parties to 

brief the court on election of remedies in contract and in tort; and upon construing the 

parties‟ purchase agreement, which was not attached to Mr. Walker‟s complaint. The 

trial court also dismissed Mr. Walker‟s Tennessee Consumer Protection Act claim upon 

 

3 We have recognized exceptions where the trial court considers “matters incorporated by reference or 

integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in 

the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned; these 

items may be considered by the [trial] judge without converting the motion into one for summary 

judgment.” Singer v. Highway 46 Properties, LLC, No. M2013–02682–COA–R3–CV, 2014 WL 

4725247, at *3 (Tenn. Ct. App. Sept. 23, 2014) (quoting Western Express, Inc. v. Brentwood Services, 

Inc., No. M2008–02227–COA–R3–CV, 2009 WL 3448747 at *3 (Tenn. Ct. App. Oct. 26, 2009) (citing 

Ind. State District Council of Laborers v. Brukardt, No. M2007–02271–COA–R3–CV, 2009 WL 426237 

at *8 (Tenn. Ct. App. Feb. 19, 2009) (perm. app. denied Aug. 24, 2009))).
6

determining that Mr. Walker “ha[d] not suffered an ascertainable loss” under Discover 

Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012). 

Regardless of whether the trial court‟s order in this case should properly be 

reviewed as one granting a motion to dismiss or as an award of summary judgment, the 

trial court determined that Defendants were entitled to a judgment as a matter of law

pursuant to the parties‟ contract and relevant case law. Construction of a contract, like 

dismissal for failure to state a claim and an award of summary judgment, presents a 

question of law that we review de novo, with no presumption of correctness. Dick Broad.

Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn. 2013). The facts 

relevant to our disposition on appeal are not disputed and our standard of review in this

case is the same regardless of which motion was appropriate. See Rajvongs v. Wright, 

No. M2011–01889–COA–R9–CV, 2012 WL 2308563, at *3 n.3 (Tenn. Ct. App. June 18, 

2012), aff’d, 432 S.W.3d 808 (Tenn. 2013). We accordingly turn to whether Defendants 

were entitled to a judgment as a matter of law.

Discussion

It is undisputed in this case that Defendants offered the property at sale by auction; 

that the property description was incorrect; that the Bank discovered the error before the 

scheduled closing date; that the Bank informed Mr. Walker of the error; and that the 

Bank offered to terminate the contract or sell Mr. Walker the vacant lot. It also is

undisputed that Mr. Walker did not accept the Bank‟s offer but informed the Bank‟s 

agent that he intended to close on the entire property as scheduled, and that the Bank 

terminated the agreement. Further, Mr. Walker, who is an attorney, acknowledges that he 

reviewed and signed the purchase agreement contained in the record and that he 

separately initialed approximately thirty provisions contained in the agreement. Finally, 

it is undisputed that upon making its decision to terminate the contract, as it had a right to 

do, the Bank returned to Plaintiff the $5,000 in earnest money that the Plaintiff had paid 

to Bank upon execution of the contract and that this was all of the money that the 

Plaintiff had paid in this real estate transaction. 

We additionally note that, in its March 2014 order on Mr. Walker‟s motion to alter 

or amend, the trial court stated that it was granting the motion “to more completely 

clarify the reasoning for its December 12, 2013 [o]rder dismissing this action.” The trial 

court also based its judgment on the stipulations of fact contained in its October 2013 

order, and incorporated its oral ruling into its March 2014 order. The trial court 

dismissed Mr. Walker‟s claims for intentional misrepresentation and negligent 

misrepresentation based upon its application of Derryberry v. Hill, 745 S.W.2d 287 

(Tenn. Ct. App. 1987), to the undisputed facts in this case. It dismissed Mr. Walker‟s 

claims under the Tennessee Consumer Protection Act upon determining that, under 

Discover Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012), Mr. Walker had not suffered an 
7

ascertainable loss. We accordingly turn to whether Defendants were entitled to a 

judgment as a matter of law in this case.

Misrepresentation Claims

Notwithstanding the trial court‟s reliance on Derryberry, our discussion of Mr. 

Walker‟s claims for negligent and intentional misrepresentation begins and ends with the 

explicit terms of the parties‟ agreement. It is well-settled that the interpretation of a 

contract is a matter of law and is, therefore, subject to de novo review on appeal. Hughes 

v. New Life Dev. Corp., 387 S.W.3d 453, 465 (Tenn. 2012) (citation omitted). It is also 

well-settled that we may affirm judgment as a matter of law on grounds that differ from 

the grounds stated by the trial court. Moore v. State, 436 S.W.3d 775, 777 (Tenn. Ct. 

App. 2014) (citation omitted).

The first provision of the purchase agreement executed by the parties in December 

2012 states:

Buyer understands and acknowledges that Seller had or may have acquired the 

property through foreclosure, deed-in-lieu of foreclosure, or similar process, Seller 

has never occupied the property, and seller has little or no direct knowledge about 

the condition of the property. Buyer further understands and acknowledges that 

the Seller may be selling the property as land only, in its present and existing 

physical condition and makes no representations or warranties as to whether the 

property contains structures of any kind. Buyer agrees that Buyer is buying the 

property “as is, where is, with all its faults and limitations” (as more fully set forth 

in section 9 of this agreement).

The agreement further provides:

Notwithstanding any provision to the contrary in this agreement, Seller‟s liability 

and Buyer‟s sole and exclusive remedy in all circumstances and for all claims . . .

arising out of or relating in any way to this agreement of the sale of property to 

Buyer, including . . . Seller‟s title to the property . . . shall be limited to not more 

than:

(A) A return of Buyer‟s earnest money deposit if the sale to Buyer does not 

close as further set forth herein; and

(B) The lesser of Buyer‟s actual damages or $5,000 if the sale to Buyer 

closes.

Additionally the agreement states:

The Buyer further waives the following to the fullest extent permitted by law: 

. . .
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(E) Any remedy of any kind that the Buyer might otherwise be entitled to at law or 

equity (including, but not limited to, rescission of this agreement), except as 

expressly provided by this agreement.

It also provides that “Buyer grants Seller the unilateral right to execute cancellation 

instructions in the event that the Seller elects to cancel the closing and the transaction 

contemplated by this agreement.”

Similarly, the terms and conditions under which Auction conducted the auction of 

the property contain a disclaimer that states that:

Neither Seller, Broker nor Auctioneer makes any representations or warranties as 

to the accuracy or completeness of any information contained online at the 

Auction website, in the Auction brochure or available at the Property (if any) or as 

otherwise made available by the Seller, Seller‟s Broker or Auctioneer. All 

prospective Bidders are required and encouraged to conduct their own due 

diligence and investigate all matters relating to the Properties that they are 

interested in purchasing at the Auction. . . . No warranties, express or implied . . . 

are made with respect to the online bidding platform or any information software 

therein.

Auction‟s terms state:

Each prospective purchaser/bidder . . . hereby fully and irrevocably releases 

Sellers, Broker and Auctioneer . . . from any and all claims that he . . . may now 

have or hereafter acquire . . . arising from or relating to any errors, omissions or 

other conditions affecting the properties.4

It is undisputed that the sale did not close and that the Bank terminated the 

transaction and returned Mr. Walker‟s earnest money deposit in the amount of $5,000. 

Under the express terms of the agreement, the return of earnest money was the sole 

remedy available to Mr. Walker “for all claims” at law or equity. As a matter of law, the 

Bank was entitled to summary judgment on Mr. Walker‟s claims for negligent and 

intentional misrepresentation under the unambiguous express terms of the contract. 

Under Auction‟s terms and conditions, it also was entitled to a judgment as a matter of 

law.

 

4 Auction‟s terms and conditions for its on-line auction provides:

By registering for the Auction, Bidder acknowledges having read, agreed to and accepted these Terms 

and Conditions, as may be updated from time to time prior to the Auction. Such form of acceptance by 

Bidder is binding and Bidder acknowledges that such acceptance shall be binding and enforceable 

pursuant to the Electronic Signatures in Global and National Commerce Act (“E-Sign Act”)[.]
9

In his reply brief to this Court, Mr. Walker asserts that the purchase agreement is a 

contract of adhesion. However, Mr. Walker did not raise this issue in the trial court and it 

is well-settled that issues not raised in the trial court cannot be raised for the first time on 

appeal. Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). This issue is, therefore, 

waived.

Tennessee Consumer Protection Act Claim

We also affirm summary judgment in favor of Defendants with respect to Mr. 

Walker‟s claims under the Tennessee Consumer Protection Act. First, as noted above, 

Mr. Walker executed an “as is” contract that specifically limited his remedy to the return 

of his earnest money. Second, assuming the provisions in Auction‟s terms and conditions 

and the purchase agreement executed by Mr. Walker and the Bank are not sufficient to 

constitute waiver of claims under the Tennessee Consumer Protection Act (“the Act”), 

we agree with the trial court that Mr. Walker did not suffer an ascertainable loss for the 

purpose of recovery under the Act. 

The Act provides:

(a)(1) Any person who suffers an ascertainable loss of money or property, real, 

personal, or mixed, or any other article, commodity, or thing of value wherever 

situated, as a result of the use or employment by another person of an unfair or 

deceptive act or practice described in § 47-18-104(b) and declared to be unlawful 

by this part, may bring an action individually to recover actual damages.

Tennessee Code Annotated § 47-18-109. In Johnson v. Dattilo and Land v. Dixon, we 

noted that “[t]he phrase “as a result of” requires a showing by a plaintiff that the alleged 

violations of the Act proximately caused his or her injury. Johnson v. Dattilo, No. 

M2010–01967–COA–R3–CV, 2011 WL 2739643, at *7 (Tenn. Ct. App. July 14, 2011);

Land v. Dixon, No. E2004-01019-COA-R3-CV, 2005 WL 1618743, at *4 (Tenn. Ct. 

App. July 12, 2005) (internal citations omitted). 

In Johnson, we held that the plaintiffs could not establish damages for the purpose 

of the Act when they were aware of the alleged misrepresentations regarding the real 

property and elected to close on the property rather than avoiding the alleged injury. 

Johnson, 2011 WL 2739643, at *7. In Land, which like the current case arose from the 

sale of real property at auction, the plaintiffs filed an action for misrepresentation and 

violation of the Act before closing on the sale and then, nevertheless, closed on the 

property. We held that where Plaintiffs voluntarily elected to close on the contract for 

sale of the property with full knowledge of the alleged misrepresentations and of the truth 

regarding the property, Plaintiffs cannot show the required causative link between the 

misrepresentations and their alleged injury.
10

Land, 2005 WL 1618743, at *4. We held that the plaintiffs could not assert a cause of 

action under the Tennessee Consumer Protection Act where they failed to rescind the 

contract when they had an opportunity to do so. Id. at *4. 

In Johnson and Land we held that, in cases involving a contract for the sale of real 

property, damages under the Tennessee Consumer Protection Act are not available if the 

plaintiff chooses to close on the sale despite prior knowledge of the alleged defects or 

misrepresentations. When rescission of the contract is an available remedy but the 

plaintiff fails to avail himself of that remedy, there is no “causative link” between the 

alleged misrepresentations and the alleged injury. Id. 

In the current case, it is undisputed that Mr. Walker elected to close on the 

property, but the Bank refused to do so. The Bank terminated the contract and returned 

Mr. Walker‟s earnest money as provided by the terms of the purchase agreement. The 

trial court determined that Mr. Walker suffered no “ascertainable loss” for the purposes 

of recovery under the Act where he was returned to the position he occupied before the 

auction. Mr. Walker, on the other hand, asserts that measure of damages in this case is 

loss of the benefit of the bargain. 

Loss of the benefit of the bargain is the measure of damages in an action for 

fraudulent misrepresentation. Elchlepp v. Hatfield, 294 S.W.3d 146, 151 (Tenn. Ct. App. 

2008) (quoting Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. Ct. App.

1976)). Johnson and Land, however, stand for the proposition that, when a potential 

buyer of real property has an opportunity to be returned to his original position by 

rescission of the contract for purchase but fails to avail himself of this opportunity, he 

cannot maintain an action for damages under the Tennessee Consumer Protection Act. 

As we stated in Derryberry v. Hill, “„waiver of the right to rescission operates as a waiver 

of the right to maintain as action for damages for the fraud[.]‟” Derryberry v. Hill, 745 

S.W.2d 287, 291 (Tenn. App. 1987) (quoting 37 C.J.S. Fraud § 69 (1943)). In this case, 

Mr. Walker undisputedly was aware of the alleged misrepresentation before the closing 

date, the Bank offered to rescind/terminate the contract, and Mr. Walker refused. The 

Bank terminated the contract and returned Mr. Walker to his original position by 

refunding all monies paid by Mr. Walker. We agree with the trial court that Mr. Walker 

suffered no ascertainable loss for the purpose of a claim under the Tennessee Consumer 

Protection Act.

Holding

In light of the foregoing, we affirm the judgment of the trial court, although, in 

part, on different grounds. Costs on appeal are taxed to the Appellant, Charles Walker. 

Because Mr. Walker is an attorney who has filed a bond in this case, execution may issue 

on the bond and for further costs, if necessary. This matter is remanded to the trial court 
11

for the collection of costs and further proceedings, as necessary, consistent with this 

opinion. 

_________________________________

ARNOLD B. GOLDIN, JUDGE