### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 7, 2002

Session

MICHAEL G. CA NTRELL v. WALKER DIE CASTING, IN C., EMPLOY EE BENEFIT PLAN, ET AL 

### . Direct Appeal from the Chancery Court for Marshall County

No. 9942 F. Lee Russell, Judge

No. M2001-00693-COA-R3-CV - Filed F ebruary 7, 2003

This case involves a denial of medical benefits for injuries sustained in a n automobile

accident. The Appellee was covered u nder an employee benefit plan which falls within the purview of the Employee

Retirement Income Security Act of 1974 (E RISA) . The trial court granted summary judgment for the Appellee as to the Appellant’s liability for payment of the expenses resulting from the accide nt. W e rever se the decis ion o f the t rial c ourt, findi ng A ppellee ’s failure to exha ust his administrative remedies prior to filing suit fatal to his cause.
Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Reve rsed; and Remanded

D AV ID R. F ARMER , J., deliver ed the opinion of the

court, in whic h W. F RANK C RAWFORD , P.J., W.S., and P ATRIC IA J. C OTT RELL , J., joined.

Thomas A. Davidson, Lewisburg , Tennessee, for th e appel lant, Walk er Die C astin g, Inc., Employ ee Benefit Plan.

John H. Nort

on, I II , Shelby ville Ten nessee, for the a

ppellee , Michael G. Cantr ell.

Robert O. Bi nkley , Lewisburg, Te nnessee, for the Inte

rvenor/Appellee, Chattanooga-Ha milton County Hospital Authority d/b/a Erlanger Medical Center.

OPINION

This case arises out of an automobile accident in which Michae l Cantrell (Appellee) was injured. The accident occurred shortly after midnight on October 21, 1995. There wa s apparently e

vidence that Appellee had consumed alcohol prior to the ac cident. Appellee suffered serious injuries as a result of the accident. The trea tment of these injuries resulted in substantial medic al ex pense s. At t he tim e of th e accid ent Ap pelle e was an emplo yee of Wal ker Di e Cast ing, Inc., and his medical ca

re was covered under Walker’s Employ ee Benefit Plan (“the Plan”).1 It is unclear whether the Em ployee B ooklet was en tered as a trial exhibit. The language o f the plan is,

however, quoted by both parties in vari ous pleadings to an extent suffi cient for us to reach our decision.

-2- As a result of the accident, Appellee was c harged with vehicular assault, rec kless driving and DUI, first offe

nse. The vehicular assault and DUI charges were “r

etired,” June 3, 1996. Appellee entered a plea of nolo contendre to the reckless driving charge on the same day.
Appellant denied coverage f or Appellee’s medical expenses based on the lang uage of the Plan, contained in the Employee B ooklet 1 , under th e heading “ge

neral lim itations,” that provides: No medical care benefits will be paid by this Plan: 6. For treatment or expenses incurred for an accident, injury or illness resulting from the voluntary use of pr

escription drugs, non-prescription drugs or alcohol which the

use of same constitutes or contributes to the violation of any st ate or f ede ral law . It will be determined by

the Plan that

violation of a state or

federal law has occurred if : a) the individual is convicted o r found g uilty of the ap

plicable charges; or b) there is sufficient evidence that a s tate or fed eral law has been violat ed an d no char

ges we re broug ht against the ind

ividual. Sufficient evidence is defined as but not limited to: (1) blood alcohol levels which exceed establi shed state or federal minimums, (2) the possession of illeg al non-pr esc ription drugs, or (3 ) prescription/legend

drugs us ed or taken without a written prescription.
Appellee contends that the clear wording of the plan does not exclude coverage under the facts of this case as Appellee was cha rged with, but not found guilty , or convicted of, an alcohol related offense. The parties also dispute whethe r Appellee ever received w ritten explanations of the Plan’s denial of coverage.
Appellee brought suit against his employ er, Walker Die Casting, I nc., and the Plan’s supervis or, Amer

ican Gro up Administ

rator’s , Inc . claiming

that the e mployer was c ontract

ually liable for his medical costs based on the aforementioned provisions of the Plan’s booklet. Although the Plan provides for administrative review of bene fit denials, Appellee did not seek this administrative remedy prior to filing suit. The parties dispute whether, under the provisions of the Plan, resort to such remedies was required.

Initi ally , none of

the part ies involv ed real

ized that th

e Appellee’s act

ion was a claim falling within the purview of the Employee Retirement Income Sec urity Act of 1974 (ERISA), 29 U.S.C. §§ 10 01 et seq. , and that the prope r defendant was the Plan its elf. Subsequent to th is realization the Appellee was allowed to amend his complaint leaving the Plan a s the lone Defendant.-3-

Appellee moved for summary judgment as to the Plan’s liability, based on the aforementioned languag e contained in the Employee Booklet. The trial court, in granting summary judgmen t for Appe

llee on the issue of

Appellan t’s liabili ty, found tha

t, under its interpretation of the language of the plan, the administrator had arbitrarily denied the Appellee’s claims. The court further found that the permissive lang uage of the Plan excused Appellee’s failure to exhaust the administrative remedies available to him prior to filing suit.

A hearing was he

ld on Aug ust 17, 200 1, on the d amage s aspect of Appellee’s c laim against Appellant at which Appellee was a warded $63,911.37 plus attorney ’s fees. This appeal followed.
Further discussion of the extensive procedural history of this case, comprising a technical record of three hundred and thirty five pages, does not bear repe ating as it is well known to the parties.

Issues
Appellant has raised eight (8) issues on appea l. Our decision relating to the following single issue, however, pretermits discussion of the remaining seven. That single dispositive issue is:

Did the Tr

ial Court e

rr in ruling that A

ppellee was not re

quired to exhaust his administr ative re medies be

fore fil ing suit in Chancer y Court?
Preemption of State Law

“It i s well-se

ttled that ERISA preempt s state la

w claims th at ‘rela

te to’ an ERISA employee be

nefit plan.” Shackelford v. Cont’l Cas. Co. , 96 F. Supp. 2d 738, 741 (M.D. Tenn. 2000). Although not initially rea lized by either party , and arguably still not fully recognized by Appellee , “[t]he com

mon la w cau se of

acti on ur ged by [Appellee

in his initi al co mplaint] relates to his employee bene

fit plan, and falls within ERISA’s express preemption clause.” James v. Provident Nat’l Assurance Co. , 865 S.W.2d 23, 24 (Tenn. Ct. App. 1993) (emphasis added). ERISA “preempts all state laws re lating to any e

mployee bene

fit plan covered by

ERISA.” Campbell v. Precision Rubber Prods. Corp. , 737 S.W.2d 283, 285 (Tenn. Ct. App. 1987) (citing Shaw v. Delta Airlines, Inc. , 463 U.S. 85 (1983). “ERISA’s broad preemption provision makes it clear that Congress intended to establish employ ee benefit plan regulation as an e xclusive federal concern with feder al law to apply exclusively , even where ERI SA itself furnishes no answer.” In re: White Farm Equip. Co. , 788 F.2d 1186, 1191 (6th Cir. 1986). Accordingly , we shall look to feder al law in d

eciding the matte r befor e us.-4- Standard of Review
In the present case , the trial court granted Appellee’s motion for summary judgment on the quest ion of App ellant’sliability for medic al expense s incurr ed by Appellee as a res ult of his injuries o ccurri ng while

covere d under th

e Appella nt’s emplo ye e benef

its plan. A

ppellant asserts that this grant of summary judgment was in error. I n Bain v. Well

s , 936 S.W.2d 618, 622 (Tenn. 1997), the Tennessee Supreme Court stated that

[t] he standards governing an appe llate court’s review of a motion for summary judgment are well settled. Since our inquiry involves purely a que stion of law, no presumption of corr

ectnessattache s to the low er cour t’s judg ment, and our ta sk is confinedto reviewing the record to deter mine whet

her the r equirem ents of Tenn. R. Civ. P. 56 have been met. Cowden v. Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn. 1991). Tenn. R. Civ. P. 56.03 providesthat summa ry judgmen t is appropr iatewhere: ( 1) there

is no gen

uine iss ue with reg ard to the materia l facts relevant to the claim or defense contained in the motion, Byrd v. Ha ll , 847 S.W.2d 208, 210 (Ten

n. 1993); a

nd (2) the moving pa

rty is entitled to a judgment as a matter of law on the undisputed facts. Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn. 1993). Themoving pa rty has the burden of proving that its motion satisfies these requirements. Downen v. A lls tate Ins. Co. , 811 S.W.2d 523, 524 (Tenn. 1991). When the party see ki ng summa

ry judgmen

t makes a

properl y supported motion, the burde n shifts to the nonmov

ing par ty to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. Byrd , 847 S.W.2d at 215.

The standards gov ernin g the assessment of evidence in the summary judgment context are also well established. Courts must view the evidence in the light most favo

rable to the n on moving

party and must a

lso draw a

ll reason able inferences in the nonmoving party’ s favor. Byrd , 847 S.W.2d at 210- 11. Courts should grant a summary judgme

nt only when both the facts and the inferences to be drawn from the facts permit a reasona ble person to reach only

one conclusion. Id.

Bain v. Well

s , 936 S.W.2d at 622.

Exhaustion of Administ rative Remedies
Appellant asserts that Appellee’s failure to exhaust his administrative remedies under the plan should have been fatal to his claim at the trial level, precluding a grant of summary judgment for the Appellee. Appellee counte rs with the assertion that the plans “permissive langua ge” did not requi re him to e

xhaust such

administr

ative re medies pr ior to filing suit. I

n its order granting summary

judgment the trial court stated that2 Tenness ee has long fav ored the exh aust ion of ad ministrativ e rem edies

. See Jon es v. C ity of N ashv ille , 279 S.W.2d 267, 283 (Tenn. 1955 ), where, i n discussing the exhausti on doctrine, our Tennessee Supreme C ourt opined tha t “this rule and doctrine favo rs the preliminary adm inistrative sif ting process, for obvious reasons, before the court s are appealed to[, ]” and th at “clearly the administr ative processes open for one should be ex haust ed before t he court s ente r int o the pic ture.

. . .” Id. at 28 4.

3 Traditiona l exhaustion princi ples also incl ude an exception for instances “when resort to t he admini s trati ve route is f uti le or t he remedy i nadequate. ” Am ato , 618 F. 2d at 568. While Appellee does not expr essl y argue that eit her of the se ex cepti ons ar e appl icabl e her e, h e does s tat e th at “ it is cle ar f rom th e act s and c onduct of t he Pla n Admini str ator in arbitra rily and c apric iously d enying P laintiff’s claims in th e first plac e. . . th a t reques tin g a revi ew by th e Plan Admini str ator

of its action s wou ld hav e bee n a use less act.” Eve n if we co nstrue this a s an asse rtion tha t the futility except ion sho ul d appl y i n t hi s ca se, suc h a c oncl uso ry st ate me nt do es not justify Appellee’s failure to exhau st admini str ati ve re medies , f or

[t]he standard for ad judg ing the futility of re sorting to the admin ist rati ve remedies provided by a pl an is whether

a clear and positive indica tion of futility ca n be m ade

. See, e.g. , Davi s v. Feather

ston e , 97 F.3d 734, 737 (4th Cir. 199 6); Lindemann v. Mobil Oil Cor p. , 79 F.3d 647 , 650 (7th Cir. 1996); Makar v. He al

t h C are Cor p. of Mi d-Atlantic (C arefirs t) , 872 F.2d 80 (4 th Cir. 1 989 ); Fizer v. Safeway Stores, Inc. , 586 F. 2d 182 (10th Cir . 1978). A pla int iff must s how that

“it is cer tain that his claim will be d enied on ap pea l, not m erely that he doubts that an appeal willresult i n a different dec ision.” Lindemann
, 79 F.3d at 650. Se e C ommun i ca t i on s Wor ke r s of Am. v. AT& T , 309 U.S. App. D.C. 170, 40 F.3d 426 (D.C. Cir. 1994) (“The futili ty ex ception i s . . . quit e rest rict ed and has

(con tinued ...)

-5- [Appellan t’s] assertion that [Appellee’s] claims should be barre d by reas on of his failure to e xhaust

administrative remedies is without merit. That, specifically , the Courtfinds t

ha t [the plan provision addressing administrative review] does not constitute an “administrativ e remedy ” that must be followed by [Appellee ] before legal action could be commenced. That, i n other wo rds, the Co

urt finds t

hat this provision is neither mandatory nor does i

t amount to

an exclusi ve reme dy t

hat must have been availed by

the [Appellee] prior to initiating legal proceedings.
It is true that “[p]ursuant to ERISA Section 502, a c ivil action may be broug ht by a participant or beneficiary

‘to recover benefits due to him under the terms of his plan. . . .’” Parker v. Union Planters Corp. , 203 F. Supp. 2d 888, 893 (W.D. Tenn. 2002). This right is tempered, however, by the fact that “the administrative scheme of ERISA re quires a participant to exhaust his or her administrative remedies prior to commencing suit.” Rav enc raf t v. UNU M Li fe I ns. C o. o f Am.
, 212 F.3d 341, 343 (6 th Cir. 2000). While ERISA “does not expressly require exhaustion of administrative remedies, federal case law has imposed this requirement upon claimants.” Turner v. Reg’l Health Ctr. of Oak Ridge, Inc. , No. 134, 1986 Tenn. App. LEXI S 3179, at *2-3 (Tenn. Ct. A pp. J uly 29, 1 986) ( citi ng Amato v. Berna rd , 618 F.2d 559 (9th Cir. 1980)). 2
Appellee states in h

is brief t hat “whil e exhausti on of administrativ e remed ies is normally require d before

filing a claim for benefit s under a

n ERIS A benef

it plan, the

re are exception s to this requirement.” Appellee then goes on to state that “[o]ne such exception occur s when a plan administrator denies a claim but the provisions of ERISA rela tive to such a denial are not followed.” 3 A thorough review of the recor d reveals that this exception was not addressed at the3 (.. .cont inu ed) been applied onl y when r esort to adminis trative re medies i s clea rly usele ss.” ) (quotations and citat ions omitted).

Fall ick v . Nati

onwide Mut. Ins. Co. , 162 F.3d 41 0, 419 (6th Cir. 1998).

4 Appellee also claims t hat he did not receive noti ce of the denials by the Plan administrator. This contention, however, is without merit as the initial complaint notes that the catalyst for the underly ing l awsuit was th e recei pt of s uch den ials.

5 The denia l was ap pare ntly based on a Plan amendment that “imposed pri mary l iabil ity for medic al expenses arising from inju ries sust ai ned in automobile accidents on insurer s issui ng the no-faul t insurance poli cies . . . drivers [were] required by state l aw to carry.” A plan benefici ary who faile d to ca rry such ins uran ce was precl uded f rom recovering for me dical e xpe nses un der the plan. B axter faile d to m aintain su ch no -fault cove rage. Baxter , 941 F.2d 451 at 452.

-6- trial level, however, and “[i]t is well-settled that issues not raised at trial may not be raised for the first time on appeal.” State Dep't of Human Servs. v. Defriece , 937 S.W.2d 9 54, 960 (Tenn. Ct. App. 1996). At the trial level, the only argument made by

Appellee concerning the administrative procedures to be followed by Appellee were those addressing the permissive nature of the Plan provision at issue. 4 Our review of the record fa ils to disclose any mention of the adequacy

of the Appellant’s denials. As arguments not raised at tria l are deemed waived on appeal, we refuse to now entertain Appe llee’s claims concerning the sufficiency of the denial provided him. See Devorak v. Patterson , 907 S.W.2d 815, 818 (Tenn. Ct. App. 1995).
The question of the adequacy of the denials notwithstanding, Appellee insists that the permissive language contained within the Plan gave him the choice to either seek administrative remedies or, as he chose to do, foreg o them. Appellee’s assertion, however, is invalid under established ERISA jurisprudence, the issue a nd effect of such permissive language having been squarely a

ddressed by the Sixth Circuit Court of Appeals in the case of Baxter v. C.A. Muer Corp. , 941 F.2d 451 (6th Cir. 1991).

In Baxter , an emplo ye e “atte nded a pa rty on [the emp loy er’s] pre

mises, be came intoxicated, and had an automobile accident while driving home.” Id. at 452. As in the present case, “[a]n application to [the employer’ s] employee health bene fit plan for reimbursement of the resultant medical expenses was denied.” 5 Id. After a n unsucc essful a

ttempt to g ain relie

f in state court, the employee

brought an ERISA action in federal district court. Id. The district court granted summary

judgment for the defendants based on an a mendment to the Plan which precluded recovery

by the employ

ee. Id. at 453. In addition, the district court “[a]s an alternative holding, . . . ruled that [the employee] had failed to exhaust the appeal procedures prescribed in the plan and that such exhaustion was a prerequisite to suit.” Id. On appeal to the sixth circu

it court of appeals , the empl oyee argu ed that “ [the employ er] did not p

rovide him with a writte n denial o f benef

its, that the plan doe s not make the appe al proce ss mandat ory , that he d

id not retain a lawy er until after the appeal time had passed, and that requiring exhaustion of6 W hile the tri al court que sti oned Appellant concerning what specif ic inf ormation the denial contai ned, the suff icie ncy of th e noti ce provided Appellee was not raise d by A ppe llee at the tria l level. W e, there fore, d ecline to rule

on the s uff

icie ncy of the no tice rec eived by Ap pellee . The se exh ibits ma ke it clear, however, t hat Appellee was aware of the denial of hi s clai ms irr especti ve of t he propriet

y of s uch noti ce.
-7- administrative remedies under ERISA plans is discre tionary.” Id. at 454. In addressing the employee’s c ontentions, the Baxter court state d the f ollo wing:

We are not persuaded that the district court abused its discretion in requiring exhaustion of administrative remedies here. Whether or not [the employ er] issued a written denial of benefits, [the employ ee] admitsthat he wa s notified that his cl aim

was denied and that he could have sought administrative review of this denial. The fact that permissive langu age was used in framing the admin istrative review provision makes no difference

. See Mason v. Cont’l Group, Inc. , 763 F.2d1219, 1226 (11th Cir. 1985), cert. denied , 474 U.S. 1087, 88 L. Ed. 2d 902, 106 S. Ct. 863 (1986), where the court rejected an argume nt that use of permissive language mea nt that the claimant was not required to avail himself of the review pr ocess before filing a feder al suit. F inally , the fact that [the e

mployee] did not

retain a lawyer promp tly does not relieve him of the exhaustion requirement. [The employ ee] admitsboththat he kne w his request for medical benefits had been de nied and that he had received

a copy of the . . . plan outlining the review procedure. He could have pursued the review procedure without the assistance of a lawyer.

Id. (emphasis added). Thus, Baxter makes it clear that the permissive nature of the lang uage of the Plan do es not excu se Appellee’s fa ilure to e xhaust his a

dministra tive remedies.
Moreover, Appellee asserts that he submitted his medical and medica lly related expenses to Appellant “on or about August 14, 1996, and within the time allowable by the Employee Benef it Plan.” A

ppellee goes on to state th at “he ha s now rec eived not ice fro m these De

fendant s that his request for pay

ment of the aforesaid medical and medically -related expenses has been denied, allegedly

based on paragraph 6 of the G eneral Limitations portion of the Employ ee Benefit Plan.” Appellee’s own exhibit in support of his initial complaint clearly shows, however, that Appellee was aware of the denia l of benefits as early

as April 3, 1996, when he received a bill for services related to the accident in question which clea rly states that “[y

]our insurance company has notified us that these services are not covered under your policy .” A similar letter was received from another servic e provider on May 14, 1996, which included an “attached denial” from the p lan admin istrator which cle arly

states tha t “the pla n does not p

rovide be nefits for this type of illness/injury - see the general limitations of y our employee bookle

t for further explanatio n.” Fro m these exhibits it is cl ear tha t Appelle e was on n otice of the denia l of his claims we

ll before he submitted his medic al and me dically related expenses t

o Appella nt. 67 Ap pellee quo tes dire ctly from the Pla n in his co mpla int.

8 Th is por tion of the Plan is quo ted in A ppe llee’s resp onse to Appell ant’ s moti on for summary j udgment, fil ed November 3, 1998.

9 As of 1998, “due to ERISA' s prov isi on for the admin ist

rat ive revi ew of

benefi ts, ten federalcircu its [had] rea d

an exhau stion o f adm inistrative re med ies req uirem ent into th e statute.” Fall ick v . Nati

onwide Mut. Ins. Co. , 162 F. 3d 410, 418 (6 th

Cir. 1998).

-8- The Employee B enefit Plan, which Appellee obviously possessed at the time of filing the complaint 7 , provides that “[i]f denial of a claim is received, the employ ee may r equest a review by filing a w

ritten request with the Plan Administrator within sixty (60) day s of the date the employee received the denial.” 8 Appellee, although having rec eived notice of denial via the aforementioned bills, failed to meet this deadline. According ly, as in Baxter , “[Appell ee] admits both that he knew his request for medical benefits had bee n denied and that he had received a copy of the . . . plan outlining the review procedure. He [too] could have pursued the r eview procedure without the assistance of a lawy er.” Baxter , 941 F.2d 451 at 454.
Appellee further contends that another section of the Plan gives him the right to seek a judicial remedy without exhausting his administrative re medies. The Plan provision which Appellee refers to states that “[i]f y ou are improperly denied a benefit in full or in part, y ou have a right to file suit in a federal or state court.”To accept Appellee’s arg ument that this provision negate s the req

uiremen t that an e mployee exhaus t his admini strative remedie s would tota

lly defeat the announced purpose behind the requirement and eviscerate the feder al case law requiring such e

xhaustion of

remedie s. 9 The purpose underly ing the exhaustion requirement was discussed in Baxter , where the court stated:

In Miller v. Metro. Life Ins. Co. , 925 F.2d 979, 986 (6 th Cir. 1991), we noted tha t “the ad ministrati ve schem

e of ERI SA requir

es a par ticipant t o exhaust his or her administrative remedies prior to commencing suit in feder al court.” Makar v. He

alth Care Cor

p. of Mid-

Atlantic , 872 F.2d 80 (4 th Cir. 1989) , is to the same effect. The Makarcourt explained that although ERISA does not explicitly require exhaustion, ERI SA does require benefit plans to provide internal dispute resolution procedures–and
Congre ss’ appa

rent inte nt in manda

ting the se intern al claims procedu res was t o minimize the

number of

frivolou s ERISA lawsuits; p

romote the

consiste nt treatm ent of be nefit cla ims; provide a nonadve rsarial dispute r esolution process ; and dec

rease the cost and time of claims settlement. It would be ‘ anomalous’ if the same reasons which led Congress to require plans to provide remedies for ERISA claimants did not lead courts to see that those remed

ies are re gularly utili

zed. Id . at 83.10 Appellee, in suppor t of his argu ment that

exhau sti on shou ld not

be requ ire d, cit es t

he unpu bli shed opi nion of Clark v . Metr

opolitan Li

fe I ns. Co. , No. 94-3840, 1995 U.S. App. LEXIS 35940, at *1 (6 th Cir. O ct. 5, 19 95)

. Clark
construes certai n langu age wit hin t he plan as givi ng the e mployee the option, once his clai m is deni ed, to s eek a judi cial remedy withou t first resorting to the ad ministrativ e rem edies pro vided for in the P lan. Fo r the rea sons a nnou nced in this opinion, we fi nd that

the ho lding o f Baxter , a publi shed opi nion , that admini str ati ve re medies must be exha ust ed pri or to seeking a judicial remedy, i s the more sound decisio n as it be tter effectua tes the go als of E RIS A an d co mpo rts with Te nnesse e’s stron g pre ferenc e for ex haustio n of suc h rem edies . Acco rding ly, we cho ose to follow that line of fe deral

case law requiring t

he exhaustion of administ rative re medies absent c lear f uti lit y or i nadequacy of

the re medy such adminis trative chan nels pr ovide.

-9- Baxter , 941 F.2d 451 at 453 (emphasis added). I n short, to allow an employee “[t]o make every claim into a federal [or state] case would undermine the claim procedure contemplated by the Act.” 10 Costantino v. TRW, Inc. , 13 F.3d 969, 974 (6 th Cir. 1992) (citi ng Challenger v. Local Union No. 1 of Int'l Bridge , 619 F.2d 645, 649 (7th Cir. 1980)).

Conclusion
For the foregoing r

easons, we reverse the trial court’s g rant of summary judg

ment to the Appellee . In a

ddition, we

dismiss the

Appellee ’s claim, with prej udice, f or failur e to exhaus t his administr ative re medies. T

he cost of this appe al is taxed t

o the Appe

llee, Michael G. Ca

ntrell.

___________________________________ DAVID R. FARMER, JUDGE