IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-CA-01581-SCT

CHANTEY MUSIC PUBLISHING, INC.

v.

MALACO, INC.

DATE OF JUDGMENT: 06/15/2004

TRIAL JUDGE: HON. WINSTON L. KIDD

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: MEDA BYRD LINDLEY

ATTORNEY FOR APPELLEE: ROBERT A. MALOUF

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED - 12/01/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. The Circuit Court of the First Judicial District of Hinds County entered a judgment

enforcing the settlement agreement reached in a mediation conference be tween Chantey Music

Publishing, Inc. and Malaco, Inc. Feeling aggrieved from the entry of this judgment, Chantey

appeals to us. Finding the judgment of the Hinds County Circuit Court, Judge Winston L. Kidd,

presiding, to be supported by the evidence and consistent with the applicable law, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT2

¶2. This litigation arises from a copyrigh t dispute concerning six songs written by Tommy

Tate, a contract song writer originally retained by Ch antey Music Publishing, Inc. Specifically,

Chantey alle ges that Malaco, Inc. interfered with its contractual relationship with Tate and

caused it to suffer damages when Malaco hired Tate away from Chantey. Based on this alleged

act of contractual interference, Chantey, in 1992, filed suit against Malaco, and the parties

were actively engaged in pre-trial activ ities for the next two years until November of 1994,

when Chantey inexplicab ly allowed the case to become dormant. Seven uneventful years

pas s ed in the life of this civil litigation. Finally, in October of 2001, Chantey filed a motion

for summary judgment. In response to Chantey’s motion, Malaco filed a motion to dismiss.

Ultimately, the trial court denied both motions by order dated April 12, 2002.

¶3. On May 24, 2002, the circui t court judge referred the parties to mediation, and the

mediation conference was held on July 22, 2002, by Patrick H. Zachary, a Mississippi attorney

experienced in mediation. The mediation conference took place at the Mississippi Bar Center

in Jackson, and present at this conference were Chantey’s president and sole shareholder, Sam

Kazery, his wife, Wren Kazery, and Chantey’s legal counsel, Matthew Pepp er and Peter K.

Smith. Robert A. Malouf attended the mediation conference as Malaco’s legal counsel.

¶4. The mediation conferenc e primarily focused on bringing the parties to terms

concerning the ownership of the intellectual rights of Tate’s songs and the accompanying lost

proceeds realized by these songs. Eight and one-half hours into the mediation conference, t h e

parties reached a settlement which was memorialized in a document styled “Post Mediation1 URCCC Rul e 1.06 states that “[a]ll Corporations that are party plaintiffs must be represented by

an attorney licensed to practice law in this state, whose name must appear on the pleading prior to the filing

of the pleading.”

3 Agreement.”

Malouf executed this agreement on behalf of Malaco, and Kazery, Pepper and

Smith executed this agreement on behalf of Chantey.

¶5. Following the mediation conference, and in an attempt to clarify the agreed terms of

the Post Mediation Agreement, Zachary, as promised, reduced the details of the day’s

delibera tions to a typewritten document dated August 8, 2002. This document was in fact a

draft letter to the particip ating attorneys, and this letter set out the full terms of the Post

Mediation Agreement reached between the parties.

¶6. Shortly after this correspondence was delivered, Malaco filed w ith the court a motion

to enforce the settlement. By way of a response, Chantey filed a motion to set aside the

mediation agreement accompanied by a motion requesting that Chan tey be allowed to be

represented pro se through its president and sole shareholder, Kazery.

¶7. These motions were heard by the circuit court on Janu ary 13, 2003, and in open court,

Judge Kidd denied Chantey’s motion to represent itself pro se and found that Rule 1.06 of the

Mississippi Uniform Rules of Circuit and County Court Practice clearly mandated that a

corporation must be represented by counsel. 1 In actuality, while Judge Kidd acknowledged,

at the beginning of the hearing, the existence of Chantey’s pend ing motion to proceed pro se,

this motion

was not considered by the trial judge until Kazery rose to cross-examine Malaco’s

first witness at the hearing, at which tim e Malaco’s attorney objected pursuant to URCCC 1.06.

After an on–the-record discussion in open court with Kazer y and Malaco’s counsel, Judge2 Chantey argues that a memorandum file d with the circuit court on the day of the hearing and its

accompanying exhibits have been omitted from the record and are not listed on the circuit court docket, and

4 Kidd found that URCCC 1.06 afforded him no discretion and that he was thus required to deny

Chantey’s motion to proceed pro se via Kazery. During the discussion prior to the trial court’s

ruling on the motion, Kazery requested of the trial judge that if he should deny the motion to

proceed pro se, then the trial judge should “accept all the letters, all the motions, and all the

atta chments that are filed and those that have been hand-delivered to your administrator be

considered [as well as] Mr. and Mrs. Kazery’s sworn statement.” After Judge Kidd’s denial of

Chantey’s motion to proceed pro se, the transcript of the hearing reveals the following:

Mr. KAZERY:

Yes, sir. Can you accept everything we have submitted as our

testimony and based on Mr. Malouf, what he just –

THE COURT: It’s been filed and I have it. The Court reviewed numerous

documents in this case and I believe there’s been at least one hearing prior to

now with respect to this matter following the mediat ion and the Court has

reviewed all documents in this matter......

************

THE COURT: The Court will accept all fil ings you’ve made and in terms of any

ruling that the Court makes, the Court will consider all documents you’ve filed.

¶8. Judge Kidd then cont inued the hearing on the issue of whether the settlement agreement

was valid and enforceable. At the conclusion of the hearing, the trial court took this issue

under advisement and in due course, the trial court entered a detailed findings of fact and

conclusions of law, followed by an order granting Malaco’s motion to enforce the settlement.

Contained in the documents considered by Judge Kidd during his deliberations were assertions

by Chantey that the mediation was tainted by coercion and that Kazery signed the Post

Mediation Agreement under duress and mental impairment. 2that it is unclear whether these documents were ever considered by Judge Kidd. Suffice it to state here that

there is nothing in the record to even infer to us that Judge Kidd did not do exactly as he announced in open

court, and that was that he would “ accept all filings you’ve made and in terms of any ruling that the Court

makes, the Court will consider all documents you’ve filed.”

5 ¶9. Aggrieved by the circuit court’s enforcement o f the settlement agreement, Chantey

timely filed its notice of appeal and retained new counsel to represent it before this Court.

DISCUSSION

¶10. Today’s case involves a decision made by a circuit judge sitting without a jury. On

appeal of a trial court judgment rendered subsequent to a bench trial where the judge has sat

as the fact- finder, we afford deference to the findings of the trial judge. We have held “a circuit

court judge sitting without a jury is accorded the same deference with regar d to his findings

as a chancellor, and his findings are safe on appeal where they are supported by substantial,

credib le, and reasonable evidence.” C ity of Jackson v. Perry

, 764 So.2d 373, 376 (Miss.

2000) (citing Puckett v. Stuck ey , 633 So.2d 978, 982 (Miss. 1993)). Therefore, this Court

affords the same deference to the rulings of a circuit court judge ruling from the bench as it

does a chancellor. It follows that we will not disturb the findings of the judge unless

manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Hill v.

Southeastern Floor Covering Co.

, 596 So.2d 874, 877 (M iss. 1992), B ell v. Parker

, 563

So.2d 594, 597 (Miss. 1990).

¶11. We beg

in with an acknowledgment of the general premise that compromise reached by

w ay of mediation or otherwise, is favored in the state of Mississippi. Moreover, the law favors

the settlement of disputes by agreement of the parties and, ordinarily, will enforce the6

agreement which the partie s have made, absent any fraud, mistake, or overreaching. H astings

v. Guillot

, 825 So.2d 20, 24 (Miss. 2002) (citing First Nat'l Bank v. Caruthers , 443 So.2d

861, 864 (Miss. 1983); Weatherford v. Martin

, 418 So.2d 777, 778 (Miss. 1982)).

Importantly, we apply contract law analysis to se ttlement agreements. This is true of any type

of negotiated settlement. N ewell v. Hinton

, 556 So.2d 1037, 1042 (Miss. 1990); East v. East

,

4 93 So.2d 927, 931-32 (Miss. 1986). Settlement agreements are contracts made by the

parties, upon consideration acceptable to each of them, and the law will enforce them. Id. at

932-33. Courts will not rewrite them to satisfy the desires of either party. T ravelers Indem.

Co. v. Chapp ell , 246 So.2d 498, 510 (Miss. 1971). In M cCorkle v. Hughes

, 244 So. 2d 386

(Miss. 1971), we discussed the appro priate application of contract principles to agreements

made in contemplation of settlement. One of the cases cited by the Court in M cCorkle wa s

Kohler v. Oliver , 114 Miss. 46, 74 So. 777 (1917). In Kohler , this Court stated:

Compromises are favored by law. The rule is stated in 5 R. C. L. 878, as follows:

“It is the duty of courts rather to encour age than to discourage

parties in resorting to compromise as a mode of adjusting

conflicting claims; and the nature or extent of the rights of each

should not be nicely scrutinize d. Courts should, so far as they can

do so l egally and properly, support agreements which have for

thei r object the amicable settlement of doubtful rights by parties;

the consideration

for such agreements is not only valuable, but

highly meritorious. Th

ey are encouraged because they promote

peace, and when there is no fraud, and the parties meet on equal

terms and adjust

their differences, the court will not overlook the

compromise, but will hold the parties concluded by the

settlement.7

114 Miss. at 46, 74 So. at 777 . In addition to K ohler

, this Court in McCorkle also cited

Fornea v. Goodyear Yellow Pine Co.

, 181 Miss. 50, 178 So. 914 (1938). In F orne a , we

stated:

If the plaintiff

signed the contracts involved in the above statements, knowing

their conditions, and was not misled or deceived by fraudulent representations,

he is bound by the writte n terms of the contract. While the law recognizes that

there is no method known to the law by which to make pe ople prudent, and that

expe r ience shows that people often imprudently make contracts, including the

signing of r eleases, yet every person must be presumed to know the law, and in

the absence of some misrepresentation or illegal conceal ment of facts, the

person must abide the consequences of his contracts and actions.

I n the light of the fact that people are not prudent, and may at times be

unjustifiably

imposed upon, this court has been liberal in reviewing transactions

where on e party might have the advantage over another party in experience,

knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary

relation s of some kind, the court cannot relieve a person from the consequences

of his acts merely because he has not acted prudently or diligently about his

contracts or other matters.

181 Miss. at 65, 178 So. at 918.

I. WHETHER THE MEDIATION AGREEMENT WAS THE

PRODUCT OF D URESS, COERCION, MENTAL WEAKNESS AND

THEREFORE PROCEDURALLY UNCONSCIONABLE.

¶12. Chantey claims that the mediation process which result ed in the settlement of this

matt er was fraught with inequity and procedurally unconscionable due to duress, coercion and

mental weakn

ess. Moreover, Chantey alleges that Malouf, in representing Malaco at the

parties’ court-ordered mediation conference, coerced the corporati on’s president, Kazery, into

signing an agreement he was not prepared to sign by threatening him with prosecuti o n in8

bankruptcy court. Conversely, Malaco asserts that Chantey has failed to offer a scintilla of

evidence in support of these claims.

¶13. It is well-settled that “where conflicting testimony is presented, expert and otherwise,

the [trial judge, when sitting as fact-f inder] is required to make a judgment on the credibility

of the witnesses in order to resolve the questions before the court.” Hastings v. Guillot

, 825

So.2d 20, 24 (Miss. 2002) (citing Broadhead v. Bonita Lake s Mall, Ltd. P'ship , 702 So.2d

92, 101 (Miss. 1997); Doe v. Doe , 644 So.2d 1199, 1207 (Miss. 1994)).

¶14. In today’s case, it was the circuit judge’s responsibility to reconcile th e evidence

offered before the court and determine whether it supported Chantey’s alle gations of duress,

lack of voluntariness, and overreaching. On this issue, Judge Kidd specifically found, “[t]hough

Chantey, through Mr. Kazery, has filed various documents in th is Court suggesting that there

was confusion abo ut the settlement, or that Chantey acted under duress, or that Chantey was

somehow coerced into the settlement, there is no proof of any improper conduct in this matter

on behalf of Chantey’s attorneys, the mediator, or Malaco’s attorney.” Ultimately, Judge Kidd

concluded that not only was there no p roof in support of Chantey’s allegations, there was no

legal basis in which to undergird a finding that the s ettlement agreement was tainted by fraud,

coercion, or duress.

¶15. Upon examination of the r ecord, there is overwhelming evidence supporting Judge

Kidd’s determination to enforce th e parties’ settlement agreement reached at the mediation

conference. At the motion hearing, the testimony of Malouf, Malaco’s attorney at the

mediation conference, Zachary, the mediator, and Pepper, who represented Chantey at the3 S ince Malouf was a witness at this hearing, another attorney represented Malaco at the hearing.

Likewise, as to Pepper, both Malaco’s attorn ey and Pepper agreed prior to Pepper’s testimony, that there

would be no effort to elicit from Pepper information which he may have obtained in his attorney-client

relationship with Kazery and Chantey.

9 mediation conference, reveal ed an arm’s-length settlement agreement. 3 Thus, the testimony

of all the witnesses who testified revealed that the settlement process was fair and without

oppression. Specifically, Pepper attested to the fact that he attended the mediation conference

as Chantey’s lawyer; that the parties negotiated at arm’s length; that the parties reached a

settlement agreement; that the terms of the settlement were clearly communicated to Chantey;

that Chantey understood

the terms of the settlement; that Chantey agreed to the settlement; that

Kazery signed the settlement on behalf of Chantey; that he (Pepper) as w e ll as his co-counsel,

Smith, agreed to the terms of the settlement; that Chantey, through Kazery, participated in

every conversation and every negotiation throughout the mediation; t hat at the conclusion of

the mediation, the parties and the mediator came together to discuss the terms of the

settlement in order to finalize the agreement; that throughout the mediati o n, Chantey was

provided the assistance o f counsel; and, that Zachary’s letter prepared subsequent to the

mediatio n conference stated the agreed terms and conditions of the settlement reached

between the parties.

¶16. W hen testifying about the execution of the settlement agreement, Malouf stated “all the

parties were in the same room and we went over the terms of this [agreement] twice. In other

words, I was present , Mr. Smith was present, Mr. Pepper was present, Mr. Kazery and his wife10

were present, and the mediator was present as we sat down and went over the terms to make

sure that the terms were right. This was not something that was done secretly.”

¶17. Finally, a transcript of Zachary’s deposition testimony was received into evidence at the

motion hearing. Zachary’s testimony corroborated the occurrences as described by the other

witnesses. Addit ionally, Zachary testified that Kazery voluntarily signed the settlement

a greement on behalf of Chantey; that Kazery understood the terms of the settleme n t

agreement; that he [Zachary] did not see anyone threaten or intimidate Kazery; that nothing

untoward occurred

at the mediation which should cause the settlement to be set aside; that the

parties were not forced to agree to any provision of the settlement; and, that his letter of

August 8, 2002, reflected the settlement agreement reached at the mediation conference.

¶18. Interestingly, while the transcript of the hearing does reflect that the trial court

disa l lowed Kazery’s request to call a witness based on the trial court’s ruling that Chantey

could not proceed pro se (meaning that Kazery could not interroga te any witness called by

Chantey), even Malaco’s counsel conceded that “[Malaco’s] position is that [Kazery] can

testify as a witness but he can’t act as an advocate.” For whatever reason, Kazery chose not to

testify. However, the record does reveal that at the conclusion of the evidentiary hearing,

Kazery basically set out Chantey’s position in non-stop argument to the trial court which

consumed roughly one and one-half pages of the twenty-seven page tran script of the hearing.

¶19. Thus, while Kazery was not able to call and inte rrogate witnesses, it can hardly be said

t hat the trial court was in the dark as to Chantey’s position on the issue of the validity of t h e11

settlement agreement. S ee a nd compare G uar. Nat’l Ins. Co. v. Pittman

, 501 So.2d 377, 386

(Miss. 1987).

¶20. Clearly, there is substantial evidence supporting Judge Kidd’s discretionary

determination regarding the viability of t h e parties’ settlement agreement. Accordingly, for the

reasons stated, we find this issue to be without merit.

II. WHETHER THE POST MEDIATION AGREEME N T REFLECTS A

MEETING OF THE MINDS BETWEEN THE PARTIES.

¶21. Chantey argues that the parties’ settlem ent agreement was not the product of a meeting

of the minds. Specifically, it alleges that additional handwritten language which states, “or

matters wh

ich could have been raised in the complaint,” was added to the agreement without

Kazery’s knowledge and thu s was never discussed nor ever explained. Citing V iverette v. State

Highway Comm’n

, 656 So.2d 102 (Miss. 1995), Chantey claims that Kazery’s lack of

knowledge as to this phrase prevented there being a meeting of the minds.

¶22. The law es poused in Viverette is easily distinguishable from the facts of this case. In

Vive rette , we reversed an order of the trial court enforcing the parties’ settlement agreement

due to the fact that there was insuffi cient evidence of a meeting of the minds. The dispute in

Viverette was over the consi deration of a $2,800 payment made before settlement under the

“quick take” provision found in ou r eminent domain statutory scheme. I d. at 103. In remanding

the case back to the trial court for further proc eedings concerning this provision, we noted that

“there is no evidence in this record that the effect of the quick take deposit was consid ered and

agreed upon.” Id

. Notably, in Viverette , the trial court entered an order without having12

entertained evidence concernin g whether there had been a meeting of the minds between the

parties concerning the effect of the quick take deposit.

¶23. Today’s case evidences a cl ear intent by both parties to be bound by the terms of their

negotiated settlement. Moreover, the evidence clearly demonstrates that both parties fully

acquiesced in all the terms included in their agreement which was reached after an eight and

one-half hour mediation conference.

¶24. Not only is Chantey’s argume nt that there was no meeting of the minds unsupported by

the record, it is contrary to Mississippi law. In T erminix Intern., Inc. v. Rice

, 904 So.2d 1051

(Miss. 2004), we reiterated the well-accepted contract princ iple that parties are charged with

the responsibility of reading the agreements they execute, stating:

It is well settled under Mississippi law that a contracting party is under a legal

obligation to read a contract before signing it. M cKenzie Check Advance of

Miss., LLC v. Hardy , 866 So. 2d at 455. (citing G odfrey, Bassett & Kuykendall

Architects, Ltd. v. Huntington Lumber & Supply Co. , 584 So.2d 1254, 1257

(Miss. 1991), Koenig v. Calcote

, 199 Miss. 435, 25 So.2d 763 (1946),

McCubb ins v. Morgan , 199 Miss. 153, 23 So.2d 926 (1945)). Under

McKenzie

, the law presumes that Dr. Rice re ad the agreement he signed with

Terminix. Had he done so, he would have seen the arbitration cla use in the

contract. Furthermore, this Court has held that “[i]n Mississippi, a person is

charged with knowing the contents of any document that he executes.” R usse ll

,

826 So.2d at 725 ( citing J.R. Watkins Co. v. Runnels

, 252 Miss. 87, 172 So.2d

567, 571 (1965) (“A person cannot avoid a written contract which he has

entered into on the ground that he did not read it or have it read to him.”)).

904 So. 2d at 1056.

¶25. Mississippi law precludes Chantey fr om asserting ignorance in regards to a term or

phrase clearly written into the parties’ agreeme nt. Moreover, Chantey does not deny that the4 The ninth term or provision of the settlement agreement stated:

All other compositions composed in whole or in pa rt by Tommy Tate during the period

covered by the Malaco/Tommy Tate Songwriter Agreement shall be the sole and exclusive

proper ty of Malaco, Inc. Malaco, Inc. shall enjoy the ownership and use of such

compositions free of all claims of Chantey Music Publishing, Inc.

13 phrase to which it obj ects existed in handwritten form on the face of the parties’ settlement

agreement at the time of execution. It follows that in negotiating with Malaco, Kazery, as

president of Chantey, should be expe cted to have read and have full knowledge of the

contractual language contained in the parties’ settlement agreement. Kazery, on behalf of

Chantey, attempts to argue that after a decade of litigation and over eight and one-half hours

of mediation, he, accompanied by two att orneys, blindly signed or was duped into acquiescing

in contractual language with which he did not agree. This argument is unconvincing. As stated,

the evidence presented at the hearing clearly de monstrates that the parties reviewed and

understood the terms of the agreement.

¶26. Thus we find that Chantey’s assertion that there was no meeting of the minds between

the parties is wholly without merit inasmuch as Kazery was an able p articipant in a freely

negotiated bargain

ing process which produced an agreement of which he was presumed to have

full knowledge. This issue is thus without merit.

III. WHETHER THE PARTIES AGREED T O A SPECIFIC PROVISION

CONTAINED WITHIN THE SETTLEMENT AGREEMENT.

¶27. Chantey argues that the ninth provision included in Zachary’s letter memorializing the

terms of the parties’ settlement agreement should not be recognized as part of what was

nego tiated at mediation. 4 In direct contradiction of a prior argument, Chantey now asserts here14

that the signed medi

ation agreement speaks for itself and that parol evidence of an additional

provision should not be considered.

¶28. Chantey presents this argum ent for the first time on appeal to this Court. In S outhern

v. Mississippi State Hosp. , 853 So.2d 1212 (Miss. 2003), we reiterated the important

procedural tenet that “[a] trial judge cannot be put in error on a matter not presented to him.”

Id. at 1214-15 ( see Mills v. Nichols

, 467 So.2d 924, 931 (Miss. 1985)). Precedent mandates

that this Court not entertain arguments made for the first time on appeal as the c ase must be

decided on the facts contained in the record and not on assertions in the briefs. Parker v. Miss.

Game & Fish Comm'n

, 555 So .2d 725, 730 (Miss. 1989) (citing B ritt v. State

, 520 So.2d

1377, 1379 (Miss. 1988); Shelton v. Kindred

, 279 So.2d 642, 64 4 (Miss. 1973)). Stated

clearly, “[i]t is an

elementary and familiar rule that we sit to review actions of the lower courts,

and we will not undertake to consider matters which do not appear of record in the lower court,

absent unusual circumstances

. Cossitt v. Federated Guar. Mut. Ins. Co. , 541 So.2d 436, 446

(Miss. 1989) (citing Educational Place ment Servs. v. Wilson , 487 So.2d 1316, 1320 (Miss.

1986)).

¶29. The record clearly evidences the fact tha t Chantey did not present this argument in its

moti on to set aside mediation and did not present the argument at the motions hearing.

Inasmuch as Judge Kidd has been denied the opport unity to decide this issue, we find this issue

is not properly before this Court and thus decline to consider it.15

¶30. Although, Chantey, as a corpor ate plaintiff, has not assigned as error the trial judge’s

denial of its request to permit Kazery’s pro se representation of the corporation at trial,

Chantey does me ntion several times in its brief that it was prejudiced by the trial court’s

disallowing Chantey, through Kazery, to cross-examine Malaco’ s witnesses, and to call and

interrogate witnesses in Chantey’s case-in-chief. Thus, Chantey makes an alternative argument

that, at the very least, this Court should remand this case to the trial court “ for an evidentiary

hearing where both parties can actively participate and all evid ence that pertains to this issue

can be heard.”

However, in making this assertion, Chantey has not cited any authority in

support of his contention that he is entitled to a ne w evidentiary hearing because of the trial

judge’s invocation of URCCC 1.06. Therefore, we are under no obligation to consider this

proposition. F errell v. River City Roofing, Inc

., 912 So.2d 448, 45 6 (Miss. 2005) (citing

Williams v. State

, 708 So.2d 1358, 1362-63 (Miss. 1998)); H oops v. State

, 681 So.2d 521,

535 (Miss. 1996). See also M.R.A.P. 28(a)(6).

CONCLUSION

¶31. Compromise reached by way of mediation is a favored form of dispute resolution in

Mi ssissippi. In today’s case, the evidence clearly indicates that the parties’ settlement

agreement was free from contractual defens es of fraud and overreaching. The trial judge’s

determination that there was no proof in support of the allegations of fraud, coercion and

duress is fu

lly supported by the record and as such must be upheld. Therefore, the judgment

enfo rcing the parties’ settlement agreement as entered by the Circuit Court of the First

Judicial District of Hinds County is affirmed.16

¶32. AFFIRMED.

SMITH, C.J., WAL LER AND COBB, P.JJ., EASLEY, DICKINSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ J.,

NOT PARTICIPATING.