### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

pril 12, 2001
CHARLES MONTAGUE v. MICHAEL D. KELLUM
Appeal from the Circuit Court for Washington County No. 7877 Thomas J. Seeley, Judge FILED MAY 17, 2001

No. E2000-02732-COA-R3-CV

In this legal malpractice action, the Trial Court granted sum mary judgmen

t to the Defendan

t, Michael D. Kellum (“Defendant”). Defendant submitted a Rule 56.03 statem

ent and the affid

avit of an expert witness in support of his motion. Charles Montague (“Plaintiff”), did not file either a Rule 56.03 response or a contravening affidavit. Prior to deciding Defendant’s motion, the Trial Courtstayed Plaint

iff’s di scovery un

til it decided Def

endant’s motion. Pla

intiff, who is incarcerated, had previously served discovery requests upon Defendant which had not be en answered. Plaint

iff appeals. We va

cate the judgme

nt of the Trial Cour

t.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; and Case Remanded

.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. Charles Montague, pro se Appellant, Mountain City, Tennessee.
James A. Nidiffer,

Johnson City, Te

nnessee, for the

Appellee, Micha

el D. Kellum.

OPINION Background

This appeal results from the Trial Court's g ranting summary

judgment to Defe

ndant. Plaintiff, wh o is inca rcerated, filed a Complaint alleging legal malpractice stemming from Defendant's representa

t ion of him in a post-conviction proceeding. Plaintiff alleges a number of1 After Defen dant filed his M otion to Dismiss, Plaintiff filed a motion to amend his complaint along with an amended complaint to which Defendant objected. The record on appeal, however, does not contain an order deciding Plaintiff’s motion to amend his compla int.

2 Plaintif

f conten ds in his brief that he als

o served interr

ogatories on Defendant in June 2000, to whi

ch Defendant did not respond. These discovery requests are attached onl

y as an appendix to Plaintiff’s appellat e brief and are not con tained in the rec ord on ap peal.
-2- bases for his claim,

including that De

fendant, who was court-a

ppointed, failed t

o follow the manda

te of Tenn. Code Ann. § 40-30-204(e ), whi ch requires that a post-conviction petition or amended petition be verified under oath. By the time Defendant was appointed as counsel, Plaintiff, acting pro se , had filed a post-

convicti on petiti on which did not comply with Tenn. Code Ann. § 40-30- 204(e), because it was not properly verified under oath. Defe ndant filedan A mended Petition (“Amended

Petition”) on behalf of

Plaintiff which also failed to comply with Tenn. Code Ann. § 40- 30-204(e), because it was not verified under oath.

At the post-conviction hearing, the Criminal Court for Washington County, despi

te the Amended Petition's lack of statutory compliance, considered the grounds raised in the Amended Petition and dismissed Plaintiff's post-conviction claim. In its Order, the Criminal Court held that the Amended Petition did not comply with Tenn. Code Ann. § 40-30-204, because it was not verified under oath and did not stat

e facts to support al lega tions that would require setting the matter for hearing. The Criminal Court held that the petition was without merit.

Plaintiff filed his legal ma

lp rac tice Complaint against Defendant in January 2000. Plaintiff served Defendant

with Requests for Admission in April 2000. A few days later, Defendant filed his Motion to Dismiss based upon Tenn. R. Civ. P. 12(b)(6). Plaintiff then served Defendant witha pleading captioned “Motion for Production of Documents” which was essentially

a Tenn. R. Civ. P. 34 Request for Production of Documents. Next, Plaintiff filed a Motion for Ext ension of Timeto respond to Defendant’s Motion to Dismiss. Although inartfully drafted, Plaintiff outlined the as-yet una

nswered discove

ry request s as the basis

of his motion. The re

cord on appeal,

contains no order adjudicating this motion. 1

On the date that the Motion to Dismiss was set for hearing, Defendant filed a Motion for Extension of Time to r

espond to Plaintiff

's discovery

requests, asking

that the time

be extended until after the Trial Court decided his Motion to Dismiss. Defendant's response to the Requests for Admission was due a few days later. The Trial Court granted D efendant's Motion for Extension of Time, ordering that Plaintiff’s discovery was stayed until after the Trial Cour t decided De fendant's Motion to Dismiss. On the sam e date, the Trial Court took under advisement Defendant’s Motion to Dismiss. In spite of the Trial Court’s order staying Plaintiff’s discovery , Defendant, however, responded

to Plaintiff’s Request for Production of Documents in July 2000. The Req uests for Admission remaine

d unanswered by

Defendant. 2

Before the Trial Court decided Defendant's Motion to Dismiss, Defendant asked the Trial Court to convert his Motion to Dismiss to a Motion for Summary Judgment. Defendant filed-3-

the affidavit of

a local attorney in support of his Motion for Summary Judgment. The affidavit stated that it was the local attorney's opinion that Defendant did not deviate from the applicable standard of care for attor

neys prac ticing within the l

ocal community. Defendant, in hi s Tenn. R. Civ. P. 56.03 Statement of Undisputed Fa

cts, does not admit o

utright that he f

ail ed to prepare properly the AmendedPetition but, instead , states that the tr

ial court dismissed

the Amended Pe

t ition, in part, because it was not properly sworn to.

The Trial Cour t grant ed Defendant’s Motion for Summary Judgment. In its Order dismissing Plaintiff’s legal malpractice claim, the Trial Court held that notwithstanding Defendant’s failure to comply with Tenn. Code Ann. § 40-30-204(e), the Criminal Court found t he Amen ded Petition to be without merit, and, therefore, Plai ntiff su ffered no damages from the Amended Petition notbeing verified under oath. The Trial Court further held that there was no proof that Defendant deviatedfrom the applicable standard of care. Additionally, the Trial Court held that Plaintiff’s Complaint was frivolous. Plaintiff ap pea ls. We vacate the Trial Court’s grant of summary judgment.

Discussion

Although not stated exactly as such, the following issues are raised on appeal: (1) that the Trial Court erred in g

ranting summary

judgment to

Defendant because there are genuine issues of material fact regarding whether Defendant’s conduct breached the applicable standard of care for attorneys; (2) that the Trial Court

err ed when it stayed Plaintiff’s discovery until after it decided Defendant’s Motion toDismiss/Motion for Summary Judgment; (3) that this matter should be stayed while Plaintiff’s appeal of

his post-conviction petition is decided; and (4) that the Trial Court erred in finding that his

legal malprac

tice claim was fr

ivolous.

On appeal, Defendant contends that the Trial Court correctly held that he was entitled to summary judgment

because there was no proof that Plaintiff suffered any da mages as a result of Defendant’s error in preparing the Amended Petition and no proof that Defendant deviated from the applicable

standard of care of attorneys. Defendant a lso argue s tha t the Trial Court did not abuse its discretion in suspending disco very in this matter. Finally, Defendant contends that Plaintiff’s appeal is frivolo

us.
Our S upreme C ourt outlined the standard of review of a motion for summary judgment in Staples v. CBL & Assoc. , 15 S.W.3d 83 (Tenn. 2000):

The standards governing

an appellate court's review of a motion for summary judgment are well settled. Since o ur inquiryinvolves purely a question of law, no presumption of correctness at taches to the lowe

r court's judg

ment, a nd our task is confine

d to reviewing th

e record to dete

rmine whether th

e requirements

of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown , 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Ba nk/Central South , 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04-4- provides that summary

judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or def ens e containedin the motion, see Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to ajudgment as a matter of law on the undisputed facts. See Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its motion satisfies th ese requ irements. See Downen v. Alls tate Ins. Co. , 811 S.W.2d 523, 524 (Tenn.1991).

When the party

seeking summary

judgment makes a properly supported motion, th e burden shifts to the nonmoving party to set forth specific facts establishi ng the existence of disput ed, material fac

ts which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

To properly supp o rt its motion, the movin g party mus

t either affirma

tively negate an essential element of the non-movingparty's claim or conclusiv ely establish an affirmative defense. See McCarleyv. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn.1997). If the moving party fails

to negate a claimed basis fo

r the suit, the non-moving party's burden to produce evidence e stablishing the exis tence of a genuine issue

for trial is not triggere d and the motion for summary judgment must fail. See McCarley v. West Quality F ood Serv ., 960 S.W.2d at 588; Robinson v. Omer , 9 52 S.W.2d at 426. I f the moving part

y successfully

negates a claimed basis for the action, the non-movingparty may notsimpl y r est upon the pleadings, but must offer proof to establish the existence of the e

ssential elements

of the claim.

The sta ndards governing 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 nonmov

ing party a

nd must also draw a

ll reasonable

inferences in thenonmoving party's favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd

v. Hall , 847 S.W.2d at 210-11. Courts should grant
a summary judgment only when both the facts and the inferences to be dra wn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (T enn.1995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Staples , 15 S.W.3d at 88-89; see also Madison v. Love , No. E2000 -01692-CO

A-RM-CV, 2

000 WL 1 036362, at * 2 (Tenn. Ct. App. July 28, 2000) (holding that “[m]aterial supporting a motion fo r summary judgment must do more than ‘nip at the heels’ of an essential element of a cause of action; it must negate that element”).

The crux of Plaintiff’s cla im is based upon a le

gal malpractic

e theory. O

ur Supreme Court outlined the e

lements of proof r

equired to establ

ish a legal malpr

actice claim as f

ollows:-5- The plaintiff in a malp

ractice case m

ust prov e that the attorney’s conduct fel l bel ow that degree

of care, skill, a

nd diligence whi

ch is commonly

possessed and exercised by attorneys pra ct icing in the
samejurisdiction . . . . In addition, the plaintiff must d emonstrate

a nex us b etw een t he n egli genc e and the inj ury. Sanjines v. Ortwein and Assoc ., P.C. , 984 S.W.2d 907, 910 (Tenn. 1998) (citations omitted). Although expert proof generally is required to establish the applicable standard of care and that the attorney’sconduct fell below the applicable standard of care, it is not required “‘in cases involving clea r and palpable

negligence . . . .’” Lazy Seven Coal Sales, Inc. v. Stone & Hinds , 813 S.W.2d 400, 406 (Tenn. 1991) (citations omitted); see also Bursack v. Wilson , 982 S.W.2d 341, 343 (Tenn. Ct. App. 1998) (c itations omitted) (hol ding that “‘expert testimony is required to establish negligence and proximate cause . . . unless the alleged malpractice is within the common knowledge of laymen’”).

In th is matt er, De fenda nt subm itted, in supp ort of h is Motio n for Su mmary Ju dgment , the affidavit of a local attorney who stated that Defendant’s conduc t did not de viate f

rom the ap plicable

stan dard of care. The record on appeal shows that Plaintiff did not submit a counteraffidavit from an expert witness. Plaintiff also failed to file the required respons e to Defendant ’s Rule 56.03 Statement of Undisputed Material Facts.

In most legal malpra

ctice cases,

as the Trial Court found in this case, a plaintiff’s failure to contravene an

expert’s affidav

it filed in support of

a motion for summar

y judgment w

ould be fatal to his

claim. See, e.g., Bursack v. Wilson , 982 S.W.2d 343-45; Hasek v. Holt , No. 03A01- 9706-CV-00210, 1998 WL 2505, at * 3 (Tenn. Ct. App. Jan. 6, 1998); Bradfield v. Cole , No. 02A01- 9707-CV-00171, 1998 WL 79886, at * 2-3 (Tenn. Ct. App. Feb. 26, 1998). This Court, however, is at a loss as to how Defe

ndant’s undisputed

failure to follow the clear requirement of Tenn. Code Ann. § 40-3-204(e), th

at a post-convict

ion petition must be ve

rified under oat

h, does not constitut

e a failure to comply with the applicable standard of c are. In fac t, although this issue is not raised specifically

on appeal, we note that Plaintiff may not need expert proof to establish that Defendant’s undisputed failure to verify under oath the Amended

Petition did not meet the applicable standard of care. See Lazy Seven Coal Sales, Inc. v. Stone& Hinds , 813 S.W.2d at 406; Bursack v. Wilson , 982 S.W.2d at 343. Such a determination, however, does not relieve Plaintiff from the necessity of proving damages resulting from the failure to verify under oath the Amended Petition. In Plaintiff’s post-conviction hearing, the Criminal Court considered

the Amended Petition on its merits, despite its not being sworn to, and dismissed it. In this matter, the Trial Court held that Defendant’ s conduct had no be aring on the fina

l outcome of Plaintif

f’s post-convic

ti on petition since the Amended Petition was considered on its merits, and, therefore, Plaintiff sustained no damages from Defendant’s failure to comply with Tenn. Code A nn. § 40-3-204(e).

The Trial Court also held there was no proof in t he record that Defendant had deviatedin any way

from the applicable standard of care required of him. As discussed above, we-6-

believe there is at least a genuine issue as to whether or not Defendant’s failure to have the Amended Petition verified under

oath deviated from the applicable standard of care. We also recognize that there is no dispute from the record before us that that possible violation o

f the applicable

standard of care resulted in no damages to Plaintiff. Other than that possible violation, the record contains no proof that Defendant deviated in other way from the applicable standard of care.

Our inquiry, however, cannot end with our review of the Tr ial Court’ s granting of Defendant’s Motion for Summary Judgment based upon the record

then before it. If that were the only issue on appeal,

we would affirm the Trial Court. See Tenn. R. Civ. P. 56.04; Madison v. Love , 2 000 WL 1036362, at * 2 . On appeal, Plaint iff also questions t

he Trial Court’s order tha t completely

blocked Plaintiff’s attempts at discovery bef ore it ruled on Defen

dant’s Motion to Dismiss/Motion for Summar y Judgment. W e agr ee with Plain tiff that the Tria

l Court erred in prohibiting Plaintiff’s discovery in this matter b efo re it ruled on Defendant’s motion and, we, therefore, vac

ate the Trial Cour

t’s grant of summa

ry judgmen

t.
A trial court’s decision to limit discovery is discretionary and subjec tto an abuse of discretion review by t

his Court. See Marcus v. Ma rcus, 993 S.W.2d 596, 601 (T enn. 1999); State, Dep’t of Commerce and In

s. v. FirstTrust Money Serv., Inc. , 931 S.W.2d 226, 230 (Tenn. Ct. App. 1996). Therefore, we will not reverse a trial court’s decision regarding discovery matters

unless it “‘affirmative

ly appears that the

trial court’s dec

ision was agains

tlogic or reasoning, and

caused an injustice or injury to the party complaining .’” Marcu s v. Marcus, 993 S.W.2d at 601 (citations omitted).

This Court has addressed the policy of the Tennessee Rules of Civil Procedure regarding di

scovery a s follows:

The Tennessee Rules o

f Civil Procedure e

mb ody a br

oad policy favoring the discovery of any relevant, non-privileged evidence.

* * * * * *

In light of the rules ’ broad policy favoring disco

very, the p

arty o pposing discovery must demonstrate with more than conclus or y statements

and generalizat

ions that the discovery limitations being sought are necessary ‘to protect a p arty or person from annoya nce, embarrassment,

oppression, or

undue burden or expense. . . .’ A trial courtshould dec line to li mit disco very if the part y seeking t h e limitations cannot p

roduce specific

facts to support its

request.
A trial court should balance the competing interests and hardships involved when asked to limit discovery and should consider whether less burdensom e means for ac quiring t he requested information are available . . . . If the co

urt decides to lim

it discov ery, the3 It should be noted the ho lding of Whisnant v. By rd , that a prisoner has a consti tution al righ t to a stay of his civil proceedings whil

e his crimi

nal convicti

on is being appeale

d, was overruled by Sanjines v. Ortwein & Assoc., 984 S.W.2d at 910. See also Logan v. Winstead, 23 S.W.3d 297, 302 (T enn. 200 0) (holding that an inmate h ad no ab solute right to have his civi

l litigati on stayed until his rel

ease or to be present for each stage of the case’s proceedings).
-7- reas onablenes s of its order will depend on the character of the information being sought, the issues involved, and the procedural posture of the case.

Duncan v. Duncan , 789 S.W.2d 557, 560-61 (Tenn. Ct. App. 1990) (citations omitted).

Balanced against this liberal discovery policy a re the limits placedupon a prisoner’s right to p ursue a civil action while incarcerated. Both our Supreme Court and the United States Supreme Court have recognized a prisoner’ s constitutional right to pursue a civil lawsuit during incarceration, but with limitations. Price v. Johnston , 334 U.S. 266, 285, 68 S.Ct. 1 049, 1060 (1948); San

jin es v . Or twe in & Assoc., 98 4 S.W.2d a t 910 (quot ing Whisnant v. By rd , 525 S.W.2d 152, 153 (Tenn. 1975) (

holding that this r

ight is “‘qualified and restricted’”). 3 In addition, th is Courthas recognized that the trial court may impo se “appr opriate limitations” on the scope and
manner of the discovery of a prisoner who ha s bro ught a civil lawsuit. Bradfield v. Dotson , No. 02A01-9707-CV-00152, 1998 WL 63521 , at * 3 (Tenn. Ct. App. Feb. 17, 1998) (holding that the trial court may lim

it discovery

to means that are

“‘less problema

tic’” and “not‘h

ighly disruptive of prison administ ration’”) ( quoting Bell v. Godinez , 92 C 8447, 1995 WL 519 970, at * 2 (N.D. I

ll. Aug. 30, 1995)). Further, Rule 26 of the Tennessee Rules of Civil Procedure provides that in any civilmatter, trial courts may “limit discovery that is un reason ably burdensome, duplicative, or cumulative in relation to the positions of the parties or the issues asserted.” Ahkeen v. Parker , No. W1998-00640-COA-R3-CV, 2000 WL 52771, at * 8 (Tenn. Ct. App. Jan. 10, 2000) (citing Tenn. R. Civ. P. 26.02(1)).

A previous decision of this Court, Brad field v. Do tson , 1998 WL 63521, a t * 3, is instructiv e
. In Bradfield , this Court reversed the trial court’s grant of summary judgment to the defendants

where the plaintiff, a pro se prisoner, previously filed a motion to compel discovery. Id., at * 1-2. The Bradfield

court found that the trial court erred when it failed

to consider the plaintiff’s motion to compel discover y before g ranting the def

endants’ motion fo

r summary jud

gment. Id. , at * 3. The court in Bradfield held that discover

y could be “limit[ed] . . . to that which is pertinent to the [d]efendant’s motio

n for summary

judgment, and may weigh the plaintiff’s interests against the institutional concern

s of the [c

]orre ctional [f]acility.” Id. ; see also Thompson v. Hammond , No. 02A01-9808-CV-00221, 1999 WL 188292, at * 5-6 (Tenn. Ct. App. Apr. 6, 1999) (reversing the trial court’s grant of summary judgment where the pro se prisoner’s disco very requ ests were unanswered and where the trial c

ourt failed to con

sider plaintiff’ s m otio n to compel discove ry); Sweatt v. Compton , No. 02A01-9710-CV-00252, 19 99 WL 432 90, at * 8 (Tenn. Ct. App. Feb. 2, 1999) (reversing summary judgment where the trial court did not permi

tadequate discovery for the pro se prisoner’s Eigh th A men dme nt c lai m be for e gra nti ng de fend ant s’ m oti on f or s umm ary j udgme nt).-8- In addition, this

Court has recently recognized the importance of allowing a plaintiff to engage in discovery so that the plaintiff has a chance to defend himself against a pending motion for summary judgment. Conger v. Gowder , No. E2000-01584-COA-R3-CV, 2001 WL 301155, at
* 5 (Tenn. Ct. App. Mar. 29, 2001) (no appl. perm. app. filed as of date of this opinion) (holding that “[s]ince it is the defendant – and not the plaintiff – w

ho has the initial bu

rden on summary

judgment, generally speaking the plaintiff has the right to test

the defendant’s supporting affidavits by careful cross-examination during a discovery deposition”). This Court in Conger vacated the trial court’s grant of summary

judgment to the defendant where the trial court blocked the plaintiff’s discovery efforts by granting the defendant a pr otective order. Id. , at *6.

In the case at hand, we hold that the Trial Court erred in blocking Plaintiff’s discovery before it issued its decisi on regarding Defenda nt’s Motion to Dismiss/Motion for Summary Judgment. In its order staying discovery , the Trial Court did n ot find that P laintiff’s discovery requests to Defendant would disrupt or concern any institutional intere

sts of the correc

tional facility where Plaintiff is incarcerated. See , e.g. , Bradfield v. Dotson , 1998 WL 63521, at * 3. Moreover, neither the Trial Court nor Defendant cited any of the re aso ns for limiting disc

overy outlin

ed in Tenn. R. Civ. P. 26.02(1) and 26.03. Defendant’s only stated basis for asking the Trial Court to halt discovery was that his Motion to Dismiss was b eing taken under advisement by the Trial Court shortly before Defend

ant’s answers to

Plaintiff’s discovery requests were due. Finally , the record
on appeal contains no order showing that the Trial Court considered Plaintiff’s request for more time to respond to Defendant’s Motion to Dismiss, wherein Plaintiff cited his outstandi n g discovery requests as the basis for his request. See id. , at * 3; Thompson v. Hammond , 1999 WL 188292, at
* 5-6. As a result of

the Trial Court’s d

ecision, Plaintiff

was denied any

opportunity t

o engage in relevant discovery p

rior to the dismissa

l of his caseand was consequently denied any real opportunity

to defend against Defendant’s motion. See Conger v. Gowder, 2001 WL 301155, at *5.

This Opinion in no way give s Plaintiff on remand any broader rights to discovery than those created under the T ennessee Rule s of Civil Procedure. Plaintiff, any plaintiff, deserves the opportunity

to undertake time

ly and rele

vant discovery

in compliance with

the Tennessee Rules of Civil Procedure in order to defend against a motion for summary judgment. On remand, the Trial Court, if so requested by Defend ant, may lim

it Plaintiff’s disco

very to that

which is pertinent

to Defendant’s Mot

ion for Summary

Judgment.

Plaintiff also contends t hat the Tri al Court sh ould have s tayed the procee dings of this
case during the pendency of his post-conviction appeal. The recor d on appeal, however, shows that Plaintiff did not request such a stay at the trial level. As this Court noted in Smithv. Harriman Util. Bd. , 26 S.W.3d 879 (Tenn. Ct. App. 2000):

‘Our jurisdiction is

appellate only, T.C.A. § 16-4-108(a)(1), and thus the rule has long been well-settled that [t]his Court can only consider such matters as were brought to the attention of the trial court and acted upon or [pre

termitted] by

the trial court.-9- * * * * * *

This issue w as not addressed by the trial judge or pretermitted by him; it cannot be raised for the first time on appeal.’
Smith , 26 S.W.3d at 887 (alterations in original) (quoting Stewart Title Guar. Co. v. F.D.I.C., 936 S.W.2d 266, 270-71 (Tenn. Ct. App. 1996)). As it appears that Plaintiff raises this issue for thefirst time on appeal, we will not address it further.

Since Plaintiff is

partially successful in this appeal, we reject Defendant’s argument that Plaintiff’s appeal is frivolous. See Tenn. Code Ann. § 27-1-122; Industrial Dev. Bd. of the City of Tullahoma v. Hancock , 901 S.W.2d 382, 385 (T enn. Ct. App. 1995)

(holding that a “frivol ous appeal is one that is ‘devoid of merit,’. . . or on e in which there is little prospect that it can ever succeed”).
Conclusion

The judgment of the T

rial Court is

vacated, and this cause is remanded to the Trial Courtfor such further

proceedings a

s may be req

uir ed co nsistent with this Opinion, and for collection of the costs below. The costs onappeal are a ssessed against the Appellee, Michael D. Kel lum , an d hi s su ret y, if any.

___________________________________ D. MICHAEL SWINEY, JUDGE