No. DA 06-0325 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 146

____________________________________ IN THE MATTER OF THE ESTATE OF LUCILE B. SNYDER, Deceased.

____________________________________

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. BDP-92-279(c), The Honorable Kenneth R. Neill, Presiding Judge.

COUNSEL OF RECORD: For Appellant: Steven T. Potts, Thompson, Potts & Donovan, P.C., Great Falls, Montana For Respondent: Robert Emmons, Attorney at Law, Great Falls, Montana

____________________________________ Submitted on Briefs: May 9, 2007 Decided: June 12, 2007

Filed:

_____________________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Lois K. Snyder (Lois), heir to the Estate of Lucile B. Snyder, deceased, (the Estate) appeals from two orders of the Eight h Judicial District Court, Cascade County, resolving a dispute between Lois and her brother Neil E. Snyder (Neil) over their respective shares of Lucile’s Estate. ¶2 We review the followi ng issues on appeal: ¶3 Does Lois present an appealable issue pursuant to the Montana Rules of Appellate Procedure? ¶4 Did the District Court err when it ruled that the property s till remaining in the Estate should be appraised and distributed based upon its current market value? ¶5 Did the District Court err when it ordered Lois to quitclaim her inherited interest in the Flathead County prop erty back to the Estate? FACTUAL AND PROC EDURAL HISTORY ¶6 Lucile B. Snyder (Lucile) died on Novemb er 18, 1992, devising her entire Estate to her two children, Neil and Lois. She nominated Neil as the personal representative for her Estate. The Estate included a controll ing interest in the Snyder’s family-owned drugstore, Snyder’s, Inc. Th e Estate also contained a pr operty known as 1227 Fifth Avenue North in Great Falls and 40 acres of undeveloped land in Flathead County. ¶7 Lucile’s will provided, in rele vant part, that she “devise[ d] all the rest, residue and remainder of my property . . . to my two child ren, LOIS K. SNYD ER and NEIL E. SNYDER, in equal shares, share and share alike.” The will prov ided, however, that “[f]ifty-one percent (51%) of my stock in [S nyder’s, Inc.] . . . sha ll be first apportioned

2and set aside to make up the share of my total estate which shall go to my son, NEIL E. SNYDER.” The will expl ained that “it is [Lucile’s] will a nd desire that [Neil] have said business, or control of the corporate business as the case may be, but without ultimately diminishing the equal distribution of my estate to my two children, whom I hold in equal regard.” ¶8 Neil filed an application for informal probate and appointment of himself as personal representative on November 25 , 1992. Neil, acting as the personal representative, proposed to dist ribute 51% of Lucile’s stock in Snyder’s, Inc. to himself and 49% of the stock to Lois. He assured Lois that she would be paid cash for the 2% of stock that he would receive in excess of her sh ares. Neil also proposed that the remainder of the Estate would be divi ded equally between them. Lo is objected. Neil petitioned the District Court to interpret the will after he and Lois failed to agree to a distribution method. ¶9 The District Court adopted Neil’s propos al and ordered that the “personal representative must distribute the corporate sh ares of the decedent 51% to Neil and 49% to Lois.” The court ordered that the “remaining assets must be divided equally between Neil and Lois, except that [Ne il] must first distribute to Lois the difference in value between Neil’s 51% and Lois’[s] 49% of those shares.” Accordingly, Neil executed deeds of distribution to Neil and Lois as tenants in co mmon for the Great Falls and Flathead County properties on March 16, 1998. The court entered a decree of distribution and order approving Neil’s final accounting of the Estate on May 26, 1999.

3The decree noted that Lois would receiv e $4,960 in cash to equalize the stock distribution. ¶10 Lois successfully appealed the court’s decree of distribution. In Re Estate of Snyder , 2000 MT 113, 299 Mont. 421, 2 P.3d 238 ( Snyder I). This Court determined that Lucile’s expressed intent required that Neil ta ke the entire interest in Snyder’s, Inc. and that Lois receive estate asse ts of comparable value. Snyder I, ¶ 16. ¶11 On remand Lois and Neil enga ged in extended litigation ov er the valuation of the Flathead County property a nd how it should be distributed in light of this Court’s decision in Snyder I. Both parties agreed that Lois should receive some combination of the Flathead County and Great Falls propertie s, equal in value to Snyder’s, Inc. The parties’ mutual desire to gain a larger shar e of the increasingly valu able Flathead County property frustrated their efforts, howeve r, to settle on which property should be distributed first and how that property should be valued. ¶12 Neil proposed that Lois shou ld be compensated for her in terest in Snyder’s, Inc. with the Great Falls property . He suggested that she w ould be compensated with the Flathead County property only to the extent that the value of Snyder’s, Inc. exceeded the value of the Great Falls property. Neil al so proposed to value the Great Falls and Flathead County properties at their “current value.” His method would ensure that he would receive approximate ly one-half of the Flathead Coun ty property as its value had appreciated to multiple times th e value of the Snyder’s, Inc. shares. Neil stated in 2001 that he believed the Flathead County pr operty to be worth somewhere between

4$1,000,000 and $2,000,000. Neil estimated that Snyder’s, Inc. was worth only around $160,000. ¶13 Lois proposed that she shou ld receive a share of the Flathead County property equal in value to Snyder’s, Inc, and that all property left in the Estate should be distributed according to its value at Lucile’s time of death, as calculated for federal estate tax purposes. Lois’s method would ensure that she would receiv e the entire Flathead County property, as its value at the time of Lucile’s death was $160,000 and the value of Snyder’s, Inc. was appr oximately $190,000. ¶14 The District Court rejected Lois’s pr oposed distribution method and determined instead that the stock and property “shall be va lued at current valuation.” The court noted that the Great Falls property was no longer at issue as the property had been “sold by agreement of the parties for cash and notes.” Lois appealed. ¶15 We dismissed Lois’s appeal as “not ripe for appellate review” in our Order dated November 22, 2005. We noted that “it is clear from the Order that there remains for determination by the District Court the valua tion of the stock and real property contained in the Estate, as well as the distribution of the property to Lois and her brother Neil . . . .” ¶16 Neil then moved the District Court to orde r Lois “to execute her quitclaim deed to the Estate of Lucile B. Snyder for the real property locate d in Flathead County.” He argued that our decision in Snyder I had voided his 1998 di stribution of the Flathead County property. Neil also requested a “sch eduling conference regarding disclosure of expert values of the Flathead Lake property and a hearing date for final distribution of the estate.”

5¶17 The court ordered Lois to quitclaim her in terest in the Flath ead County property back to the Estate, noting that “Lois’[s] successful appeal [in Snyder I] upset the entire scheme of distribution” set forth in the court’s January 25, 1998, order. The court pointed out that it “must have the flexibility to order di stribution of [the Flathead County] property . . . by partition, in kind distribution [,] or sale and distri bution of proceeds” in order to probate the Estate pursuant to Snyder I. The court explained that “[i]t is highly unlikely that Lois will receive the exact inte rest in the Flathead property that presently stands in her name.” The District Court directed the parties to exchange names and reports of experts in preparati on for a valuation hearing to be held on June 14 , 2006. Lois filed her notice of appeal on April 10, 2006, before the court could conduct the valuation hearing. STANDARD OF REVIEW ¶18 The judicial interpretation an d construction of a will pres ents a question of law. Snyder I, ¶ 8. We review a district court's co nclusions of law to determine whether those conclusions are correct. In re Estate of Harms , 2006 MT 320, ¶ 12, 335 Mont. 66, ¶ 12, 149 P.3d 557, ¶ 12. DISCUSSION ¶19 Does Lois present an appeal able issue pursuant to the Montana Rules of Appellate Procedure? ¶20 Lois appeals two orders of the District Court: (1) the September 22, 2004, order determining that the remaining estate property should be distributed according to its current market value; and (2) the March 16, 2006, order comp elling Lois to quitclaim her

6interest in the Flathead Coun ty property back to the Es tate. Neil argues that Lois improperly bases her appeal on M. R. App. P. 1(b)(2) and (3). ¶21 Rules 1(b)(2) and (3) provide, respectively, that a party may appeal from an order “directing the delivery, transfer, or surrender of property,” or an order “against or in favor of directing the partition, sale, or conveyance of real property . . . .” Neil argues, without authority, that M. R. App. P. 1(b)(2) and (3), ar e both inapplicable in light of the fact that Lois has no “legal claim” to th e Flathead County property. He contends that this Court’s opinion in Snyder I nullified the 1998 distribution by which Lois received her legal interest in the Flathead County property. ¶22 Lois responds that she posse sses a valid deed for the Flat head County property and M. R. App. P. 1(b)(2) and (3) provide this C ourt with authority to hear her appeal. She points out that the plain language of these ru les encompasses the cour t’s order that Lois must “[quitclaim deed] back to the Estate the interest in the Flathead Lake property previously deeded to her.” We agree. The court’s order both directed “the delivery, transfer, or surrender of property,” under M. R. App. P. 1(b)(2), and represented a ruling “against or in favor of directi ng the partition, sale, or conveyan ce of real property . . . ,” under M. R. App. P. 1(b)(3). ¶23 We likewise held in Estate of Murphy , 183 Mont. 127, 132- 33, 598 P.2d 612, 614- 15 (1979), that an order authorizing a personal representative to transfer an estate’s “cash and personal property” to an estate creditor constituted an appealable order pursuant to M. R. App. P. 1. Similarly, in Graveley v. MacLeod , 175 Mont. 338, 342 , 573 P.2d 1166, 1168 (1978), we held that an order requiring a party to tran sfer property by means of a

7contract for deed qualified as an appealable order pursuant to M. R. App. P. 1(b)(2). Moreover, neither Neil nor the District Court would have found it necessary to order Lois to quitclaim her interest in the property if she had no legal intere st in the property. ¶24 Neil also argues that Lois lacks a basis on which to appeal from the District Court’s September 22, 2004, order that the st ock and property “shall be valued at current valuation.” He points out that we already dismissed this app eal as premature in our order of November 22, 2005. Neil fails to note, however, that Lois’s proper appeal of the court’s March 16, 2006, quitclaim order provi des this Court with jurisdiction over both matters. M. R. App. P. 2(a). ¶25 We faced a similar situation in Hennen v. Omega Enterprises, Inc. , 264 Mont. 505, 506, 872 P.2d 797, 798-99 (1994), where th e plaintiff appealed an adverse ruling on his request for declaratory and injunctive relief. The respondent argued that the plaintiff’s failure to seek M. R. Civ. P. 54(b) certification for th e declaratory judgment ruling had rendered his appeal premature. Hennen , 264 Mont. at 507-08, 872 P.2d at 798-99. We noted, however, that the plaintiff had appealed properly the court’s denial of injunctive relief pursuant to M. R. App. P. 1(b)(2). Hennen , 264 Mont. at 507-08, 872 P.2d at 798-99. We clarified that the plainti ff’s valid appeal of the court’s denial of his request for an injunction permitted this Court to review both matters pursuant to M. R. App. P. 2. Hennen , 264 Mont. at 507-08, 872 P.2d at 798-99. ¶26 The Dissent contends that our order of N ovember 22, 2005, represents the “law of the case” and precludes Lois’s present appeal. We explained in our order that “[w]hile Rule 1(b)(3), M.R.App.P., sets forth multiple judgments or or ders entered in estate or

8probate matters which are immediately appealab le even though an estate is not fully and finally closed, the Order in this case is not one of them.” We th en illustrated, “[f]or example,” an order directing th e distribution or partition of an estate to be appealable. We noted that the Estate had yet to be distributed and th at the distribution would not occur “until after the court receives the propo sed valuations from th e parties and holds a hearing on valuations.” ¶27 This language does not preclude Lois’s pr esent appeal. The law of the case binds the parties only on those issues that the court previously has decided. See Muri v. Frank , 2003 MT 316, ¶ 11, 318 Mont . 269, ¶ 11, 80 P.3d 77, ¶ 11. We determined in our November 22, 2005, order that Lois’s appeal lacked any basis under the Montana Rules of Appellate Procedure. We advised her th at she would be able to appeal, “[f]or example,” an order directing th e distribution or partition of the Estate. We explained, however, that the District Court would have to hold a valuation h earing before it could distribute or partition the Estate. We clarifie d that Lois could not presently appeal an order “directing the distribution or partition” of the Estate as the court had yet to hold a valuation hearing. ¶28 Lois now appeals the court’s order comp elling her to quitclaim her Flathead County property back to th e Estate. Lois’s present appeal does not involve the distribution or partition of the Estate. Her a ppeal represents the opposite transaction—the court ordered her to convey property back to the Estate . Her appeal remains valid regardless of whether the court held a valuation hearing, as evidenced by the fact that the court ordered her to quitclaim her prop erty without holdin g such a hearing.

9¶29 Moreover, the language in our November 22, 2005, order upon which the Dissent relies represents dictum, intended only to explain our reasoning. Our order did not dictate a precondition to any further appeals in this case. It simply pointed out a necessary precondition to Lois’s hypothetical appeal of a hypothetical order distributing or partitioning the Estate. Our order explaine d that this hypothetic al order “directing the distribution or partition of an estate” repres ented only one of “multiple judgments or orders entered in estate or probate matters wh ich are immediately appealable . . . .” Lois now appeals one of the “multiple judgments” that was not at issue in our order of November 22, 2005, and, thus, the law of this case permits her present appeal. ¶30 Did the District Court err when it ruled that the property sti ll remaining in the Estate should be appraised and distributed based upon its curre nt market value? ¶31 Lois argues that the District Court ignored Lucile’s express intent to distribute her Estate according to its value at her death, as calculated for federal estate tax purposes. Lois points to the provision in Lucile’s will that states her intent to distribute the “rest, residue and remainder” of her property to Lois and Neil “in equal shares, share and share alike.” The will then provides specific inst ructions with respec t to Snyder’s, Inc.: Provided further, however, th at should the business of Snyder Drug . . . be not fully incorporated . . . at the time of my death; then, . . . Snyder Drug . . . shall go to my son, NEIL E. SNYDER . If the valuation of said Store and assets connected therewith for Federal Estate tax purposes shall exceed the one-half (1/2) share to go to my son NEIL; then to the extent of such excess, the business of SNYDER DRUG . . . shall nevertheless go and be distributed to my son, NEIL, and be subject to a charge in favor of my daughter, LOIS K. SNYDER, the amount necessary to give her a full onehalf (1/2) of my total estate base d upon the value thereof as finally determined for Federal Es tate Tax purposes. . . .

10If . . . Snyder Drug sh all be owned by Snyd er’s, Inc., a Montana Corporation, at the time of my death; then and in that event, Fifty-one percent (51%) of my stock in said corporation, plus whatever amount thereof as is necessary to make a full share of such stock, shall be first apportioned and set aside to make up the share of my total estate which shall go to my son, NEIL E. SNYDER. ¶32 The will anticipates that Snyder’s, Inc. may not be fully incorporated at the time of Lucile’s death. The will instructs the persona l representative to distribute Snyder’s, Inc. according to its value for federal estate ta x purposes if Snyder’s , Inc. is not fully incorporated. The will also notes that Lois should be co mpensated with other property from the Estate, based on its value for federal es tate tax purposes, to the extent that Neil’s share of Snyder’s, Inc. exceeds one-half the valu e of the Estate. The will provides, in the alternative, that 51% of Snyder’s, Inc. stock shall be distributed to Neil and 49% to Lois if the company is fully incorp orated at the time of Lucile’s death. The will makes no mention of a valuation method in the event of this contingency. ¶33 The court determined that Snyder’s, Inc.’s incorporated status at the time of Lucile’s death rendered inoperative “the provision for valuation at estate tax values . . . .” The court ordered, pursuant to § 72-3-902(2)(b), MCA, that the Estate assets should be valued as of the date of distribution. Section 72-3-902(2)(b), MCA, provides that “[u]nless a contrary intention is indicated by the will, . . . th e property distributed in kind is valued at fair market value as of the date of its distribution . . . .” The court explained that Lucile’s “contrary intention” to value her Estate pursuant to the federal estate tax applied only in the ev ent that Snyder’s, Inc. was unincorporated at the time of her death. Snyder’s, Inc. remained incorpor ated at the time of Lucile’s death. The court concluded,

11therefore, that § 72-3 -902(2)(b), MCA, required that her Estate be “v alued at fair market value as of the date of its distribution.” ¶34 We stated in Snyder I that “[t]he testator[’s] inte nt controls the distribution of assets pursuant to a will” and th at we derive the testator’s intent “‘from all parts of the will . . . construed in relation to each other . . . to form one consistent whole.’” Snyder I, ¶ 10 (quoting Matter of Estate of Evans , 217 Mont. 89, 94, 704 P.2d 35, 38). We further noted that the words of a will “a re to receive an interpretati on which will give some effect to every expression, rather th an an interpretation which will render any of the expressions inoperative.” Snyder I, ¶ 15 (quoting Matter of Estate of Bolinger , 284 Mont. 114, 121, 943 P.2d 981, 985 (1997)). ¶35 The will, when read as a whole, indicates that Lucile intended to have the Estate distributed pursuant to its value at her death, as calculated for federal estate tax purposes. The will specifically inst ructs the personal representative on how to value the Estate at two places in the excerp t discussed in ¶ 31, supra . The will specifies in both instances that the value for federal estate tax purposes should be used. The will’ s failure to state explicitly that the federal esta te tax valuation meth od should be used in the event that Snyder’s, Inc. remained fully in corporated likely shows no more than that Lucile failed to anticipate that the value of her Estate might change drastically while litigation delayed its probate for nearly a decade. ¶36 Where the will did anticipat e that a specific valuatio n method might be needed, however, the will provided that th e Estate should be valued at the time of Lucile’s death, pursuant to the calculation for fe deral estate tax purposes. Th is interpretation gives effect

12to the will’s twice stated provisi on that Lucile’s Estate shou ld be valued at the time of Lucile’s death. Bolinger , 284 Mont. at 121, 943 P.2d at 985. This interpretation also comports with Lucile’s intent that Lois and Neil each would receive half of the value of the Estate with Neil’s half to include Snyder’s, Inc. Snyder I, ¶ 10. ¶37 We can find no support in the text of the will for the propo sition that Lucile intended to make the value of the entire Estate depend on whether Snyder’s, Inc. remained incorporated at the tim e of her death. We conclude that the District Court erred in determining that Lucile’s remaining Esta te should be distribut ed according to its current market value. Harms , ¶ 12. Our determination that Lucile intended for her Estate to be distributed according to its value for federal estate tax purposes precludes the application of § 72-3-9 02(2)(b), MCA. We in struct the court on remand to conduct the valuation and distribution of the remaining Estate based on the Estate’s value as calculated for purposes of the federal estate tax. ¶38 Did the District Court err when it ordered Lois to quitclaim her inherited interest in the Flathead County prop erty back to the Estate? ¶39 Lois argues that the court failed to comply with § 72-3-906, MCA, when it ordered Lois to quitclaim her in terest in the Flathead County property back to the Estate. Section 72-3-906, MCA, provides, in releva nt part, that “a distributee of property improperly distributed . . . is lia ble to return the property imprope rly received . . . .” Lois asserts that the property was not “improperly rece ived” in light of the fact that she will be entitled to at least a one-half in terest in the property under any conceivable distribution.

13She points out that the District Court’s order st ates that “[i]t is highly likely that Lois will receive at least one-half of the Flat head County property or its value.” ¶40 Lois also argues that the District Court erroneously justified the quitclaim order based on its need for the “f lexibility to order distributi on of that property to be accomplished by partition, in kind distribution[,] or sale and distribu tion of proceeds . . . .” She contends that the court has only two options in distributing the Flathead County property: (1) partition, sell the property, a nd distribute the proceed s pursuant to § 70-29- 101, MCA; or (2) distribute the property in kind pursuant to § 72-3-902, MC A. She correctly points out that th e court has the “flexibility” to partition the property without requiring her first to quitclaim her property interest back to the Estate. Section 70-29- 101, MCA, authorizes an ac tion for partition when property is under the ownership of “several cotenants . . . as joint tenants or tena nts in common . . . .” She also argues that a distribution in kind would not re quire her to deed any interest in her property back to the Estate in light of the fact that she will rece ive an interest in the Flathead County property larger than or equal to her current interest. ¶41 Neil offers no argument rega rding whether the court erre d in compelling Lois to quitclaim her interest in the Flathead County property or what law should govern this issue. We also note that Lois is unlikely to r eceive less than one half of the Estate in light of our holding at ¶¶ 31-37, supra . The court’s order appears, at best, to add an unnecessary step in the court’ s resolution of this Estate. See DeVoe v. Department of
Revenue , 263 Mont. 100, 115, 866 P.2d 228, 238 (1993) (no ting that neither law nor equity require useless acts). We cannot sa y under these circumstances that the court

14correctly ordered Lois to qu itclaim her interest in the Flathead County property. In re Estate of Harms , ¶ 12. ¶42 We reverse the District Court’s Septembe r 22, 2004, order determining that the remaining estate property should be distributed according to its current market value. We also reverse the court’s March 16, 2006, order comp elling Lois to quitc laim her interest in the Flathead County proper ty back to the Estate. We remand for further proceedings consistent with this Opinion.

/S/ BRIAN MORRIS We Concur: /S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE

Justice James C. Nelson dissents. ¶43 I dissent from the Court’s decision. ¶44 I did not sit on In re Estate of Snyder , 2000 MT 113, 299 Mont. 421, 2 P.3d 238 ( Snyder I ). Respectfully, I cannot agree with the Co urt’s decision in that case. I believe that the District Court Judge was correct and I would have affirmed. In my view, the Court simply re-wrote Lucile’s will and frustrated her testamenta ry intent and estate plan. Now, Lois is, unfortunately, the victim of her own success in Snyder I . That, however, is water over the dam. Snyder I is the law of this case and must be followed.

15¶45 I would dismiss the instant appeal without prejudice as being in terlocutory. While under other circumstances I would agree with the Court’s analysis of M. R. App. P. 1(b)(2) and (3), I believe that we have already dealt with the appealability issue and have, in so doing, created a law of th e case that must be followed. ¶46 Under the law of the case doctrine, a prior decision of this Court resolving an issue between the same parties is bi nding and may not be relitigated. Muri v. Frank , 2003 MT 316, ¶ 11, 318 Mont. 269, ¶ 11, 80 P.3d 77, ¶ 11. This doctri ne “expresses the practice of courts generally to refuse to re open what has been decided.” Scott v. Scott , 283 Mont. 169, 175, 939 P.2d 9 98, 1001 (1997) (quoting Fiscus v. Beartooth Elec. Cooperative,
Inc. , 180 Mont. 434, 436, 59 1 P.2d 196, 197 (1979); s ee also State v. Van Dyken , 242 Mont. 415, 791 P. 2d 1350 (1990), cert. denied , 498 U.S. 920, 111 S. Ct. 297 (1990) (this Court’s earlier decision rendered in response to defendant’s application for writ of supervisory control addressing the issue of fa ilure to poll the jury before declaring a mistrial, remained binding a nd could not be relitigated under the law of the case doctrine)). ¶47 In this Court’s November 22, 2005 Orde r dismissing Lois’s appeal, we not only made the statement referred to in ¶ 15 of the Opinion, but we also stated: “For example, an order directing the distribution or partition of an estate is appealable; here, however, the Estate has yet to be dist ributed. This will not occur un til after the court receives the proposed valuations from the partie s and holds a hearin g on valuations. ” On that basis, we determined that Lois’s appeal was not fi nal under M. R. App. P. 1. (November 22, 2005 Order dismissing the appeal in this Court’s Cause No. 04-727 (emphasis added)).

16¶48 Clearly, we dismissed Lois’s prior app eal because the property had yet to be valued or distributed. That was the situati on when Lois filed her instant appeal—and still is. Neither of the orders appealed from va lued or distributed th e property; both were simply interlocutory orders entered in preparation for valuing and distributing the property; neither were certified as final for purpo ses of appeal under M. R. Civ. P. 54(b). Accordingly, and regardless of whether the or ders might otherwise be appealable under the Montana Rules of Appellate Procedure, they are not appealable under the law of this case pursuant to our Nove mber 22, 2005 Order. ¶49 Unfortunately, in not allo wing the trial court to va lue and finally distribute Lucile’s estate, we will, no doubt , subject the District Court, th e parties, and this Court to an endless round of piece-meal appe als as this case moves forward. ¶50 I would dismiss this appeal without prejud ice; I would allow the District Court to complete its valuation and distribution of th e Estate; and I respectfully dissent from our decision to the contrary.

/S/ JAMES C. NELSON
Justice Patricia O. Cotter joins in th e Dissent of Justice James C. Nelson.

/S/ PATRICIA COTTER

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