IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-186

Filed: 6 December 2016

Durham County, No. 15 CVS 2638

ELI GLOBAL, LLC and GREG LINDBERG, Plaintiffs

v.

JAMES A. HEAVNER, Defendant

Appeal by plaintiffs from orders entered 24 July 2015 and 13 August 2015 by 

Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court 

of Appeals 24 August 2016.

Smith Moore Leatherwood, LLP, by Matthew Nis Leerberg and Kip David 

Nelson, and Anderson Tobin, PLLC, by Kendal B. Reed (pro hac vice), for 

plaintiff-appellants.

Hoof Hughes Law, PLLC, by James H. Hughes, and Hutson Law Office, P.A.,

by Richard M. Hutson, II, for defendant-appellee.

CALABRIA, Judge.

Plaintiffs appeal from the trial court’s dismissal of their action. Because 

plaintiffs’ complaint stated claims for defamation and unfair and deceptive practices, 

we reverse and remand.

I. Background

Greg Lindberg manages Eli Global, LLC (collectively, “plaintiffs”), which 

maintains its principal office in Durham, North Carolina. Plaintiffs’ business 
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involves purchasing and investing in other companies and their assets. James A. 

Heavner (“defendant”) owns the following affiliated companies: University

Directories, LLC; Vilcom, LLC; Vilcom Interactive Media, LLC; Vilcom Properties, 

LLC; and Vilcom Real Estate Development, LLC (collectively, “the UD Entities”). The 

UD Entities are based in Chapel Hill, North Carolina.

In 2013, defendant retained an investment banker for the purpose of selling

the UD Entities as a going concern. Defendant and Eli Global engaged in preliminary 

sale negotiations, during which Eli Global was permitted to conduct a due diligence 

analysis of the companies. However, due diligence revealed that the UD Entities 

were performing poorly and would require a significant capital investment in order 

to become financially viable. As a result, Eli Global did not make a purchase offer. 

Thereafter, another one of Lindberg’s companies, UDX, LLC (“UDX”),1

purchased and acquired from the lender-bank certain commercial loans that had been

executed by defendant and the UD Entities. As owner of the loans, UDX then

provided written notices of default and demanded payment. Since the UD Entities 

were unable to pay, they filed for Chapter 11 bankruptcy protections on 24 October 

2014. 

That day, defendant published a press release, which stated in full:

CHAPEL HILL, N.C. October 24, 2014–University 

Directories, LLC filed for protection today under Chapter

 

1 UDX is not a party to this action.
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11 of the Bankruptcy Code in the U.S. Bankruptcy Court 

for the Middle District of North Carolina to ward off a 

hostile takeover of the company.

Prior to filing the petition, University Directories had 

retained an investment banker and after negotiating with 

a number of potential purchasers, had chosen Eli Global, 

LLC and signed a letter of intent with Greg Lindberg, Eli 

Global [sic] president. University Directories’ lender, 

Harrington Bank, was aware of the impending sale and 

expected the loans to be paid in full at closing–a normal 

course of events.

During the due diligence phase of the sales transaction, 

Harrington Bank was acquired by Bank of North Carolina. 

BNC immediately sold its University Directories loans and 

other loans to entities related to University Directories to 

UDX, LLC, a new entity created by Lindberg.

UDX LLC, having acquired the loans, suddenly and 

without warning gave notice of default and disposition of 

collateral, demanding ownership of University Directories 

for its own operations. In addition, Lindberg and UDX, 

LLC gave notice that it [sic] intended to declare other loans 

in default, jeopardizing assets owned by companies related 

to University Directories.

While the business court might provide relief from such a

hostile takeover, it does not do so quickly. In order to 

protect the business and its employees, University 

Directories made the decision to file a Chapter 11 petition, 

along with its related entities obligated on the various 

notes. Thus, the company will be in protective custody of 

the courts so that it can continue business operations and 

pursue a sale of the 40-year-old business to a qualified 

buyer, thereby protecting its employees, customers, and 

creditors.

University Directories is owned by James A. Heavner and 

several of the company’s managers. Heavner said of the 
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filing, “This Company has never missed a bank payment 

and is current on every loan. We chose to take this action 

with reluctance because it may cause anxiety among our 

stakeholders. Yet, in 50 years of owning, operating and 

selling over three dozen companies, mostly in the media 

business, we have never encountered anything like this. 

We will certainly litigate this matter and, in the meantime, 

the courts are here to protect it. It is an extraordinary 

situation when potential business partners turn out to be 

predators.”

University Directories, LLC; Print Shop Management, 

LLC; Vilcom LLC; Vilcom Interactive Media, LLC; Vilcom 

Properties, LLC; and Vilcom Real Estate Development are 

all companies in this filing and are located at 88 Vilcom 

Center Drive, Suite 160, Chapel Hill, NC. James A. 

Heavner is a principal of each company. University 

Directories, founded in 1974, is a collegiate marketing and 

media company. Vilcom Interactive Media owns and 

operates WCHL, a radio station broadcasting from Chapel 

Hill and “Chapelboro,” an on-line [sic] news and marketing 

service. Vilcom Real Estate Development owns properties 

in North Carolina and South Carolina. Print Shop 

operates a retail store in Chapel Hill.

Several local media outlets, including The News & Observer, The Triangle Business 

Journal, and Chapelboro, subsequently published articles based on defendant’s press 

release. Defendant also told a Chapelboro writer that he “was surprised when the 

potential partnership with Eli Global turned from a sale to a takeover[,]” and “[w]hat 

we thought were going to be honorable purchasers of a good company turned out to 

be predatory in ways none of us could have imagined.” 

On 23 April 2015, plaintiffs filed a complaint against defendant, asserting 

claims for defamation, libel, libel per se, slander, slander per se, and unfair and 
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deceptive acts or practices. Without filing an answer, on 18 June 2015, defendant 

moved to dismiss plaintiffs’ complaint for failure to state a claim upon which relief 

may be granted, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2015). On 24 July 

2015, the trial court entered an order dismissing plaintiffs’ complaint and granting 

defendant’s oral motion for attorneys’ fees. See N.C. Gen. Stat. § 75-16.1 (allowing 

the judge presiding over an action for unfair and deceptive acts to award “reasonable”

attorneys’ fees to the “prevailing party” upon a finding that the party asserting the 

claim “knew, or should have known, the action was frivolous and malicious”). On 3 

August 2015, plaintiffs filed a motion for new trial, motion for reconsideration, and 

request for ruling on objections to defendant’s motion to dismiss, pursuant to N.C. 

Gen. Stat. § 1A-1, Rules 59 and 60. Following a hearing, on 13 August 2015, the trial 

court entered: (1) an amended dismissal order awarding additional attorneys’ fees to 

defendant and including further findings of fact on that issue; and (2) an order

denying plaintiffs’ motion for new trial, motion for reconsideration, and request for 

ruling on objections. Plaintiffs timely appealed from all three of the trial court’s 

orders. 

II. Analysis

A. Standard of Review

“A motion made pursuant to Rule 12(b)(6) tests the legal sufficiency of the 

plaintiff’s complaint.” Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 
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(1993) (citation omitted). “Dismissal under Rule 12(b)(6) is proper when on its face 

the complaint reveals either no law supports the plaintiff’s claim or the absence of 

fact sufficient to make a good claim, or when some fact disclosed in the complaint 

necessarily defeats the plaintiff’s claim.” Id. (citation omitted). Accordingly, a 

plaintiff’s complaint should not be dismissed “unless it affirmatively appears [the] 

plaintiff is entitled to no relief under any state of facts which could be presented in 

support of the claim.” Id. (citations and quotation marks omitted).

B. Defamation

Plaintiffs first contend that the trial court erred in dismissing their complaint 

for failure to state a claim for defamation. We agree.

An action for defamation may be maintained by a person or a business entity. 

See R.H. Bouligny, Inc. v. United Steelworkers of Am., 270 N.C. 160, 168, 154 S.E.2d 

344, 352 (1967) (explaining that a corporation may “be injured in its credit, in its 

business good will, or in its relations with its employees . . . [and] its corporate nature 

is not a bar to its recovery of damages from the wrongdoer”). “In order to recover for 

defamation, a plaintiff must allege that the defendant caused injury to the plaintiff 

by making false, defamatory statements of or concerning the plaintiff, which were 

published to a third person.” Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 

568 S.E.2d 893, 897 (2002) (citation omitted), appeal dismissed and disc. review 

denied, 357 N.C. 163, 580 S.E.2d 361, cert. denied, 540 U.S. 965, 157 L. Ed. 2d 310 
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(2003). “[D]efamation includes two distinct torts, libel and slander.” Tallent v. Blake, 

57 N.C. App. 249, 251, 291 S.E.2d 336, 338 (1982). Generally, written defamation 

constitutes libel, while oral defamation is slander. Id. But “when defamatory words 

are spoken with the intent that the words be reduced to writing, and the words are 

in fact written, the publication is both slander and libel.” Clark v. Brown, 99 N.C. 

App. 255, 261, 393 S.E.2d 134, 137 (citation omitted), disc. review denied, 327 N.C. 

426, 395 S.E.2d 675-76 (1990). 

North Carolina recognizes three categories of libel: (1) libel per se, which covers 

publications that are “obviously defamatory”; (2) “publications which are susceptible 

of two reasonable interpretations, one of which is defamatory and the other is not”; 

and (3) libel per quod, which includes publications that are “not obviously defamatory, 

but which become so when considered in connection with innuendo, colloquium and 

explanatory circumstances.” Ellis v. Northern Star Co., 326 N.C. 219, 223, 388 S.E.2d 

127, 129-30 (citation omitted), reh’g denied, 326 N.C. 488, 392 S.E.2d 89 (1990). 

“Slander is actionable either per se or per quod.” Mkt. Am., Inc. v. Christman-Orth, 

135 N.C. App. 143, 151, 520 S.E.2d 570, 577 (1999) (citation omitted), disc. review 

denied, 351 N.C. 358, 542 S.E.2d 213 (2000). 

In the instant case, the complaint alleged that defendant made the following 

false statements “concerning [p]laintiffs”:

i. “In addition, Lindberg and UDX, LLC gave notice that it 

[sic] intended to declare other loans in default, jeopardizing 
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assets owned by companies related to University 

Directories.”

ii. That [p]laintiffs attempted “a hostile takeover.”

iii. “It is an extraordinary situation when potential 

business partners turn out to be predators.”

iv. “What we thought were going to be honorable 

purchasers of a good company turned out to be predatory 

in ways none of us could have imagined.”

v. “[I] was surprised when the potential partnership with 

Eli Global turned from a sale to a takeover.”

The full press release was also included in the body of the complaint. Plaintiffs 

asserted that “[i]n addition to being false, these statements are defamatory in that 

they tend to impeach [p]laintiffs in their business and otherwise tend to subject 

[p]laintiffs to ridicule, contempt, or disgrace.” The complaint further alleged that 

defendant’s “statements especially harm and disparage [p]laintiffs due to the nature 

of [p]laintiffs’ business in negotiating the purchase of other businesses and their 

assets.” According to plaintiffs, defendant “intended these statements to be reduced 

to writing, and such statements were in fact written” and published as a press release 

“to several media outlets, . . . [which] in turn published articles based” thereon. 

Plaintiffs alleged that as a result of defendant’s statements, “third parties are 

deterred from negotiating and closing transactions” with them. Thus, the complaint 

set forth the elements of a prima facie case for defamation. See Boyce & Isley, 153 

N.C. App. at 29, 568 S.E.2d at 897.

On appeal, plaintiffs argue that defendant’s statements are actionable as 

defamation per se, defamation per quod, and under the second class of libel. However, 
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the complaint contained no allegation that defendant’s statements are “susceptible of 

two meanings, one defamatory, and that the defamatory meaning was intended and 

was so understood by those to whom the publication was made.” Renwick v. News &

Observer Pub. Co., 310 N.C. 312, 317, 312 S.E.2d 405, 408, reh’g denied, 310 N.C. 749, 

315 S.E.2d 704, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984). Consequently, 

plaintiffs’ complaint “failed to bring the [statements] complained of within the second 

class of libel[.]” Id. at 316, 312 S.E.2d at 408 (citations omitted). We next consider 

whether plaintiffs’ complaint stated a claim for defamation per se. 

Whether a statement is defamatory per se is a question of law to be decided by 

the trial court. See Ellis, 326 N.C. at 224, 388 S.E.2d at 130. The court must consider 

the full context of the statement, viewing the words “within the four corners” of the 

publication and interpreting them “as ordinary people would understand” them. 

Renwick, 310 N.C. at 319, 312 S.E.2d at 410. In order to be actionable per se, the 

words “must be susceptible of but one meaning and of such nature that the court can 

presume as a matter of law that they tend to disgrace and degrade the party or hold 

him up to public hatred, contempt or ridicule, or cause him to be shunned and 

avoided.” Boyce & Isley, 153 N.C. App. at 30-31, 568 S.E.2d at 898-99 (citation 

omitted). “In an action for libel or slander per se, malice and damages are deemed 

presumed by proof of publication, with no further evidence required as to any 

resulting injury.” Id. at 30, 568 S.E.2d at 898 (citation omitted).
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“It is well settled that false words imputing to a merchant or business man 

conduct derogatory to his character and standing as a business man and tending to 

prejudice him in his business are actionable, and words so uttered may be actionable 

per se.” Badame v. Lampke, 242 N.C. 755, 757, 89 S.E.2d 466, 468 (1955). Our 

Supreme Court has explained that

in order to be actionable without proof of special damage, 

the false words (1) must touch the plaintiff in his special 

trade or occupation, and (2) must contain an imputation 

necessarily hurtful in its effect on his business. That is to 

say, it is not enough that the words used tend to injure a 

person in his business. To be actionable per se, they must 

be uttered of him in his business relation. Defamation of 

this class ordinarily includes charges made by one trader 

or merchant tending to degrade a rival by charging him 

with dishonorable conduct in business.

Id. (citations omitted); see also Ellis, 326 N.C. at 224, 388 S.E.2d at 130 (holding that 

a letter accusing the plaintiff-company of committing “an unauthorized act” on behalf 

of the defendant-company was libelous per se because it “impeache[d the plaintiff] in 

its trade as a food broker”); Ausley v. Bishop, 133 N.C. App. 210, 215, 515 S.E.2d 72, 

76 (1999) (determining that the plaintiff’s allegations that the defendant, a former 

employee who “was launching his own business as an appraiser,” had engaged in theft 

and loan fraud “undoubtedly had the capacity to harm [the] defendant in his trade or 

profession”).

As stated in their complaint, plaintiffs’ business is “to invest in companies as 

a going concern, which at times includes negotiating to purchase other businesses or 
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their assets.” Indeed, Eli Global was a prospective buyer of the UD Entities before 

due diligence revealed their poor financial health. Accordingly, defendant’s 

characterization of plaintiffs as “potential business partners [who] turn[ed] out to be 

predators” impugned them in their “special trade or occupation.” Badame, 242 N.C. 

at 757, 89 S.E.2d at 468. 

Defendant asserts that pursuant to this Court’s decision in Nucor Corp. v. 

Prudential Equity Grp., LLC, 189 N.C. App. 731, 659 S.E.2d 483 (2008), his 

statements are not defamatory per se because they do not allege any “illegal or 

wrongful activity” by plaintiffs. See id. at 737, 659 S.E.2d at 487 (distinguishing Ellis 

and Ausley on the grounds that those cases involved allegations of “specific wrongful 

acts,” whereas “here, no specific acts on the part of [the] plaintiff have been alleged”). 

In Nucor, the plaintiff-manufacturer alleged that the following statements, published 

by the defendant-financial company in an email sent to investors nationwide, were 

libelous per se:

Alienated customers may encourage Nippon Steel, Brazil’s 

CSN or some of Nucor’s sixteen plant managers to build 

new steel companies in addition to Thyssen, Severcorr, or 

reborn Weirton Steel adding ten million tons. Alienated 

customers may file antitrust lawsuits as has been done in 

the electrode, container board OSB, or other sectors. A 

clever attorney could make hay from trebled damages on 

Nucor’s $2.6 billion pre-tax earnings[, and] Nucor needs to 

wake up from its monopoly dreams and get back to reality 

in our view.
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Id. (alteration in original). The trial court granted the defendants’ motion to dismiss, 

and we affirmed on appeal. 

Defendant’s reliance on Nucor is misplaced for several significant reasons. 

First, not only did the Nucor publication fail to assert “any illegal or wrongful 

activity” by the plaintiff, it failed to assert any statement of verifiable fact. We 

explained,

as to “alienated customers” the publication notes that “[a] 

clever attorney could make hay from trebled damages on 

Nucor’s $2.6 billion pre-tax earnings.” We do not find any 

part of this statement, which does not allege specific 

wrongful conduct on the part of the plaintiff and uses such 

rhetorical language as “could make hay[,]” to be 

defamatory. The second statement, “Nucor needs to wake 

up from its monopoly dreams and get back to reality in our 

view[,]” is also an opinion statement without any alleged 

facts on which we could find grounds for a claim of libel per 

se.

Id. at 737-38, 659 S.E.2d at 487 (alterations in original) (internal citations omitted). 

By contrast, defendant’s assertion that Lindberg and UDX “gave notice that [they] 

intended to declare other loans in default, jeopardizing assets owned by companies 

related to University Directories” is a statement of verifiable fact which may be 

proven true or false. Cf. Daniels v. Metro Magazine Holding Co., 179 N.C. App. 533, 

539, 634 S.E.2d 586, 590 (2006) (“If a statement cannot reasonably be interpreted as 

stating actual facts about an individual, it cannot be the subject of a defamation suit.” 

(citation, brackets, and quotation marks omitted)), appeal dismissed and disc. review 
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denied, 361 N.C. 692, 654 S.E.2d 251 (2007). Although some of defendant’s remarks 

may appear to express an opinion, a person “cannot preface an otherwise defamatory 

statement with ‘in my opinion’ and claim immunity from liability[.]” Id. 

Second, in Nucor, we declined to consider paragraphs of the plaintiff’s 

complaint that provided further details about the antitrust lawsuits filed in other 

sectors because such “explanatory circumstances” may not be considered on a claim 

for libel per se. 189 N.C. App. at 737, 659 S.E.2d at 487 (“Words which are libelous 

per se do not need an innuendo, and, conversely, words which need an innuendo are 

not libelous per se.” (citation omitted)). Defendant’s press release requires no such 

explanation. By stating “[w]hat we thought were going to be honorable purchasers of 

a good company . . . [,]” defendant clearly means that plaintiffs are not, a harmful 

imputation given that plaintiffs’ particular trade is buying and investing in other 

businesses. See Badame, 242 N.C. at 757, 89 S.E.2d at 468 (noting that defamation 

per se in the business context “ordinarily includes charges made by one trader or 

merchant tending to degrade a rival by charging him with dishonorable conduct”). 

Third, viewing the Nucor publication “as a whole,” we concluded that the 

“overall import of the document was not derogatory of [the] plaintiff.” 189 N.C. App. 

at 738, 659 S.E.2d at 487 (observing that “[t]he publication also states that ‘We 

believe Nucor is a fine company, and we are not aware of any “company-specific” flaw 

or blemish.’ ”). The same cannot be said here. “One does not have to ‘read between 
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the lines’ to discover the [press release’s] defamatory content.” Boyce & Isley, 153 

N.C. App. at 32, 568 S.E.2d at 899 (citing Renwick, 310 N.C. at 318, 312 S.E.2d at 

409).

Defendant, citing several business dictionaries for support, argues that 

“predator” and “hostile takeover” are “recognized business terms” that accurately 

describe plaintiffs and the parties’ business transaction; therefore, he contends that 

his statements are true and cannot serve as the basis of a defamation claim. 

However, defendant’s reliance on extrinsic sources is premature, given that “on a 

Rule 12(b)(6) motion, the issue is not whether a plaintiff will ultimately prevail but 

whether the claimant is entitled to offer evidence to support the claims[.]” Andrews, 

109 N.C. App. at 275, 426 S.E.2d at 432 (citation, quotation marks, and brackets 

omitted).

Viewing defendant’s remarks “within the four corners” of the press release and 

“as ordinary people would understand” them, Renwick, 310 N.C. at 319, 312 S.E.2d 

at 410, we do not believe that the average readers of Chapelboro and The News & 

Observer would read “predator” to mean “a company that buys or tries to buy another 

company that is in a weaker financial position,” as defendant contends on appeal. 

Even assuming, arguendo, that readers of The Triangle Business Journal might

immediately recognize this business definition, defendant’s defamatory meaning is 

nevertheless revealed by his statements that he has “never encountered anything like 
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this” and “will certainly litigate this matter.” Cf. Boyce & Isley, 153 N.C. App. at 31, 

568 S.E.2d at 899 (rejecting the defendants’ assertion that “the average person is 

familiar with the concept of contingency fees in the context of large class-action 

lawsuits” and holding that their television advertisement alleging that a political 

opponent “charg[ed] . . . more [per hour] than a policeman’s salary” was defamatory 

per se). 

We are similarly unpersuaded by defendant’s alternative argument that his 

remarks are protected as “rhetorical hyperbole,” a statement so exaggerated or 

outlandish that “no reasonable reader would believe [it] to be literally true.” Craven 

v. Cope, 188 N.C. App. 814, 818, 656 S.E.2d 729, 733 (2008). Defendant’s press release 

was plainly intended to assuage stakeholders’ anxiety after the UD Entities filed for 

Chapter 11 bankruptcies. Considering defendant’s statements in this context, their 

defamatory tenor is even more evident. See Renwick, 310 N.C. at 319, 312 S.E.2d at 

410.

We hold that plaintiffs stated a claim for libel and slander per se sufficient to 

withstand defendant’s motion to dismiss. Notably, “[w]hether or not plaintiffs may 

ultimately prevail on these claims is not a matter before this Court.” Boyce & Isley, 

153 N.C. App. at 35, 568 S.E.2d at 901. At this early stage in the proceedings,

however, they have met their low burden of proving that they are “entitled to offer 
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evidence to support the[ir] claims[.]” Andrews, 109 N.C. App. at 275, 426 S.E.2d at 

432.

C. Unfair and Deceptive Practices

Plaintiffs next contend that the trial court erred by dismissing their claims for 

unfair and deceptive practices. We agree.

N.C. Gen. Stat. § 75-1.1(a) provides that “[u]nfair methods of competition in or 

affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, 

are declared unlawful.” A claim for unfair and deceptive practices requires proof of:

“(1) an unfair or deceptive act or practice, (2) in or affecting commerce, which (3) 

proximately caused actual injury to the claimant.” Nucor, 189 N.C. App. at 738, 659 

S.E.2d at 488 (quoting Craven, 188 N.C. App. at 819, 656 S.E.2d at 733). “[A] libel 

per se of a type impeaching a party in its business activities is an unfair or deceptive 

act in or affecting commerce in violation of [N.C. Gen. Stat.] § 75-1.1, which will 

justify an award of damages . . . for injuries proximately caused.” Ellis, 326 N.C. at 

226, 388 S.E.2d at 131 (citation omitted).

As previously discussed, plaintiffs stated a claim for defamation per se based 

on defendant’s statements impeaching their business reputation. Regarding 

plaintiffs’ claim for unfair and deceptive practices, the complaint further alleges that 

defendant’s “false and defamatory statements constitute an unfair or deceptive act or 

practice in or affecting commerce which proximately caused actual injury to 
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[p]laintiffs in violation of section 75-1.1 of the North Carolina General Statutes.” 

Because the trial court’s dismissal of this claim was predicated on its determination 

that plaintiffs had failed to state a claim for defamation, we conclude that the trial 

court also erred in dismissing plaintiffs’ claim for unfair and deceptive practices. 

Additionally, N.C. Gen. Stat. § 75-16.1 provides that a judge presiding over an 

action for unfair and deceptive practices may, in certain instances, award

“reasonable” attorneys’ fees to “the prevailing party.” Having determined that the 

trial court erred by dismissing plaintiffs’ claim for unfair and deceptive practices, we 

necessarily conclude that the court also erred by awarding attorneys’ fees to 

defendant. 

III. Conclusion

Plaintiffs’ complaint set forth the elements and necessary factual allegations 

to support claims for defamation per se and unfair and deceptive practices; 

therefore, the trial court erred by granting defendant’s motion to dismiss and in 

awarding attorneys’ fees to defendant. Having so concluded, we need not consider 

plaintiffs’ remaining arguments. 

REVERSED AND REMANDED.

Judges DAVIS and TYSON concur.