Opinion issued July 19, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00584-CV
                            ———————————
               STEPHANIE MONTAGNE ZOANNI, Appellant
                                         V.
                      LEMUEL DAVID HOGAN, Appellee


                    On Appeal from the 246th District Court
                             Harris County, Texas
                      Trial Court Case No. 2010-34811-B


                                   OPINION

      This appeal requires us to determine whether the Defamation Mitigation Act

allows defamation claims to proceed to the jury, over objection, when a plaintiff has

not complied with the Act’s requirements for those claims, and the compliance

deadline has expired. The answer is no. We therefore reverse as to nine of the alleged
instances of defamation at issue in this appeal. Because we cannot determine what

part of the damages awarded pertain solely to the remaining four allegedly

defamatory statements (which Appellant Stephanie Zoanni does not challenge under

the Defamation Mitigation Act), we reverse for a new trial as to those statements.

                                   Background

      In this appeal, Zoanni challenges the jury’s findings that she defamed her ex-

husband, Lemuel David Hogan, on 13 occasions. Many of the statements at issue

surround an alleged incident in 2005. Zoanni contends that, when members of a

church’s youth group came over to their house, Hogan peered through an attic vent

at a young girl in the bathroom. Hogan says that he accidentally glanced through the

vent while looking for something in the attic.

      On March 7, 2014, Hogan’s lawyers sent Zoanni a letter accusing her of

defaming him. The letter identified two specific publications, which included three

allegedly defamatory statements. Zoanni independently corrected one additional

statement. Hogan sent Zoanni no other request for correction, clarification, or

retraction. Hogan then sued Zoanni for defamation and to modify custody of their

daughter.

      Although Hogan’s March 2014 letter referenced only 3 allegedly defamatory

statements, on the eve of trial, Hogan amended his petition and included 13 allegedly

defamatory statements in his proposed jury charge. When Hogan added these


                                          2
allegedly defamatory statements to the jury charge, more than a year had passed

since the alleged statements were made. Hogan does not argue that he only recently

discovered the statements. Well more than 30 days had passed since Zoanni filed her

original answer in this lawsuit.

      Under the Defamation Mitigation Act and its statute of limitations,1 Hogan

had a full year to send Zoanni a timely and sufficient request for correction,

clarification, or retraction as to each of the nine allegedly defamatory statements not

referenced in his March 2014 letter and not independently corrected by Zoanni. But

he did no such thing. He instead sought to recover on them, despite never requesting

their correction, clarification, or retraction, and despite the lapsing of the year-long

limitations period.

      Zoanni sought a directed verdict on the basis that Hogan had failed to comply

with the Defamation Mitigation Act with respect to the nine statements not identified

in Hogan’s 2014 letter and not independently corrected by Zoanni. The trial court

ruled against her. Zoanni also objected to the jury charge, arguing that Hogan did

not comply with the Defamation Mitigation Act with regard to the nine allegedly

defamatory statements. She contended that it would be error to submit those




1
      See TEX. CIV. PRAC. & REM. CODE § 73.055(b); TEX. CIV. PRAC. & REM. CODE
      § 16.002(a).
                                           3
instances of alleged defamation to the jury. The trial court overruled those

objections.

      The jury found all 13 statements to be defamatory. The trial court asked the

jury to award damages for the first eight statements as a group, and the last five

statements as a group. The jury awarded $900,000 in past and future injury to

reputation and mental anguish for the first eight statements, and $1.2 million in past

and future injury to reputation and mental anguish for the last five statements, for a

total of $2.1 million in damages. The jury also found that these statements were made

with malice but awarded no punitive damages. Zoanni filed a motion for new trial

that again raised Hogan’s failure to comply with the Defamation Mitigation Act.

      On appeal, Zoanni argues that (1) because Hogan did not comply with the

Defamation Mitigation Act with respect to nine alleged instances of defamation, the

judgment should be reversed and rendered in her favor as to those nine allegedly

defamatory statements; (2) the trial court erroneously failed to submit a mitigation

instruction on damages, the damages award is not supported by sufficient evidence,

and the award is too large and impermissibly includes punitive damages; (3) part of

the judgment improperly penalizes Zoanni for her opinions; (4) there is not legally

sufficient evidence that Zoanni published any of the complained-of police report

statements; and (5) the trial court erroneously excluded testimony based upon the

clergy privilege. We start with the Defamation Mitigation Act.


                                          4
                             Defamation Mitigation Act

       Zoanni argues that Hogan did not comply with and, at all relevant times, could

no longer have complied with the Defamation Mitigation Act with respect to 9 of

the 13 allegedly defamatory statements at issue. She contends that Hogan’s failure

to comply with the Defamation Mitigation Act bars his recovery as to these

statements. We agree.

A.     Standard of Review

       The interpretation of a statute is a question of law that we review de novo.

TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). When

interpreting a statute, the text is paramount. We thus interpret statutes in light of their

plain language. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 563 (Tex. 2016).

We seek to harmonize and effectuate all provisions of the statute. See In re Office of

Attorney Gen., 422 S.W.3d 623, 629 (Tex. 2013); Meritor Auto., Inc. v. Ruan

Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001).

B.     Applicable Law

       To prove defamation, a private individual must demonstrate (1) the

publication of a false statement of fact to a third party, (2) that was defamatory

concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in

some cases. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017); see




                                            5
also Dall. Morning News, Inc. v. Tatum, No. 16-0098, 2018 WL 2182625, at *3

(Tex. May 11, 2018).

      A plaintiff must also comply with the Defamation Mitigation Act (DMA),

TEX. CIV. PRAC. & REM. CODE §§ 73.051–062. The DMA applies to “a claim for

relief, however characterized, from damages arising out of harm to personal

reputation caused by the false content of a publication.” Id. § 73.054(a).

      The DMA makes clear that:

      (a) A person may maintain an action for defamation only if:

         (1) the person has made a timely and sufficient request for a
             correction, clarification, or retraction from the defendant; or

         (2) the defendant has made a correction, clarification, or retraction.

Id. § 73.055(a) (emphasis added).

      A request for a correction, clarification, or retraction is timely if it is “made

during the period of limitation for commencement of an action for defamation,”

which is one year after the day the cause of action accrues. Id. §§ 16.002(a),

73.055(b); see also Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605,

609 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

      Even if the DMA request is timely, if it is not made within 90 days after the

plaintiff receives knowledge of the publication, the plaintiff may not recover

exemplary damages. TEX. CIV. PRAC. & REM. CODE § 73.055(c).




                                          6
       The DMA also sets forth specific requirements concerning the sufficiency of

a request. A request is sufficient if it:

       (1) is served on the publisher;
       (2) is made in writing, reasonably identifies the person making the
           request, and is signed by the individual claiming to have been
           defamed or by the person’s authorized attorney or agent;

       (3) states with particularity the statement alleged to be false and
           defamatory and, to the extent known, the time and place of
           publication;

       (4) alleges the defamatory meaning of the statement; and

       (5) specifies the circumstances causing a defamatory meaning of the
           statement if it arises from something other than the express
           language of the publication.

Id. § 73.055(d) (emphasis added).
       Another provision of the DMA allows for abatement in certain instances:

       A person against whom a suit is pending who does not receive a written
       request for a correction, clarification, or retraction, as required by
       Section 73.055, may file a plea in abatement not later than the 30th day
       after the date the person files an original answer in the court in which
       the suit is pending.

Id. § 73.062(a). If not controverted, the abatement begins 11 days after the plea is

filed and continues until the 60th day after the request is served or a later day agreed

to by the parties. Id. § 73.062(b), (c).

C.     Analysis

       This case presents an issue of statutory interpretation that is a matter of first

impression in our Court. On the facts of this case—where Hogan did not comply

                                            7
with the DMA and where, by the time he asserted the additional allegedly

defamatory statements, the statutory deadlines had expired so compliance was no

longer possible—the statute’s plain language precluded the non-compliant

defamation claims from proceeding to the jury. We need not address how the DMA

applies in other circumstances.

      The DMA allows a plaintiff to “maintain an action for defamation only if”

(1) he sends a timely and sufficient request for correction, clarification, or retraction,

or (2) the defendant nevertheless makes a correction, clarification, or retraction of

any statement. TEX. CIV. PRAC. & REM. CODE § 73.055(a) (emphasis added); see id.

§ 73.055(d)(3). To be timely, a request must be sent within one year after the day

the cause of action accrues—generally, within a year of the statement’s publication.2

Id. §§ 16.002(a); 73.055(b). To be sufficient, a request must identify each allegedly

defamatory statement “with particularity.” Id. § 73.055(d)(3). This “particularity”

requirement contrasts with the statute’s language (in the same sentence) permitting

the time and place of publication to be identified “to the extent known.” Id.; Ineos,

505 S.W.3d at 564.



2
      A cause of action for defamation generally accrues when a statement is published
      or circulated. Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605, 609
      (Tex. App.—Houston [1st Dist.] 2014, pet. denied). The discovery rule applies to
      toll that limitations period if the defamatory statement is inherently undiscoverable
      or not a matter of public knowledge. Id. Hogan did not assert the discovery rule.

                                            8
      Accordingly, for Hogan to maintain an action for defamation as to each

statement at issue, he was required to send—within a year of each statement’s

publication—a request for correction, clarification, or retraction that identified, with

particularity, the allegedly defamatory statement. Hogan did not timely satisfy this

requirement and, by the time of the charge conference, he could no longer do so.

      Only 4 of the 13 statements included in the jury charge met the statutory

requirements. On March 7, 2014, Hogan asked Zoanni to retract three statements,

and Zoanni independently corrected one other statement. Zoanni concedes that the

DMA was satisfied for these four statements.3

      It is undisputed that Hogan never asked Zoanni to correct, clarify, or retract

any of the other nine statements. Nor did Zoanni do so on her own accord. And when

Hogan proposed including the nine additional statements in the jury charge, it would


3
      We list these four statements below in the “Opinions Versus Facts” section of our
      opinion. In light of Zoanni’s concession, we do not address whether Hogan’s March
      2014 letter satisfies the DMA.

      The dissent points to Hogan’s March 2014 letter and the parties’ 2014 Rule 11
      Agreement, suggesting that Zoanni had prior notice of some of the nine allegedly
      defamatory statements for which Hogan never requested correction, clarification, or
      retraction. But neither the March 2014 letter nor the Rule 11 Agreement identified—
      with particularity or otherwise—any of the nine statements at issue. To the contrary,
      Hogan’s March 2014 letter referenced (1) an email that contained two allegedly
      defamatory statements and (2) “one” allegedly defamatory blogpost (identified by
      the post’s title). The Rule 11 Agreement, for its part, identified the sources of the
      three allegedly defamatory statements referenced in Hogan’s 2014 letter. Notably,
      only a few of the statements at issue in this appeal even appeared on Zoanni’s blog.
      And the Rule 11 Agreement was not (and did not waive the requirement for) a
      DMA-compliant request for correction, clarification, or retraction.
                                            9
have been impossible for him to comply with the statute: the year-long period to

send a timely request had lapsed for all of the nine statements.4 TEX. CIV. PRAC. &

REM. CODE §§ 16.002(a), 73.055(b).

      Under the DMA’s plain language, Hogan may not maintain a defamation

action as to those nine statements. Hogan could “maintain an action for defamation

only if” he timely requested correction, clarification, or retraction of each specific

statement. See id. § 74.055(a) (emphasis added). By the time of trial, he did not and

could no longer do so for any of the nine alleged instances of defamation. Id.

§ 73.055(a) (requiring the identification of each statement “with particularity”); id.

§ 73.055(b) (requiring a timely request). Those claims should not have proceeded to

the jury over Zoanni’s objection. The United States Court of Appeals for the Fifth

Circuit has reached the same conclusion. See Tubbs v. Nicol, No. 16-20311, 675 F.

App’x 437, 439 (5th Cir. 2017) (“If a plaintiff does not make such a request before

the statute of limitations expires, she may not state a claim for defamation.”).

      Even so, some courts have concluded, and Hogan contends, that the statute

allows abatement—not dismissal—as a possible remedy. See Hardy v. Commc’n

Workers of Am. Local 6215, 536 S.W.3d. 38, 47 (Tex. App.—Dallas 2017, pet.

denied) (“If the plaintiff files suit without making a timely and sufficient request for

a correction, clarification, or retraction, the defendant may move to have the suit


4
      Neither party argues that compliance was still possible.
                                           10
abated until the request is made. . . . There is, however, nothing in these statutory

provisions or the legislative history to suggest it is the purpose of the DMA to

deprive a plaintiff of a defamation claim based on a failure to request a correction,

clarification, or retraction.”); Warner Bros. Entm’t Inc. v. Jones, 538 S.W.3d. 781,

813 (Tex. App.—Austin 2017, pet. filed) (similar). They base this conclusion on

section 73.062 of the DMA, which provides:

      A person against whom a suit is pending who does not receive a written
      request for a correction, clarification, or retraction, as required by
      Section 73.055, may file a plea in abatement not later than the 30th day
      after the date the person files an original answer in the court in which
      the suit is pending.

TEX. CIV. PRAC. & REM. CODE § 73.062(a).

      Interpreting the DMA to allow only abatement in this circumstance would

contravene the statute’s plain text. The abatement provision has a straightforward

application (and is not superfluous) before the year-long period to satisfy section

73.055 has passed. During that period, a plaintiff could still comply with section

73.055, even if he had not yet done so. Then abatement would make sense: one may

seek to abate while the plaintiff has a chance to comply with section 73.055.

      But where, as here, the opportunity to comply with section 73.055 has passed,

the statute does not support abatement as the proper procedure. The DMA is clear

that one may maintain an action only if he sends a timely and sufficient request for

correction, clarification, or retraction. TEX. CIV. PRAC. & REM. CODE § 73.055. Once


                                         11
the deadline has passed, a plaintiff cannot maintain an action. If the court were

powerless to grant a directed verdict (or sustain objections) under these

circumstances, then what would happen? Would the court abate eternally? This

result would not effectuate the statute’s terms.

      Our conclusion is bolstered by the fact that, when Hogan added the nine other

allegedly defamatory statements, abatement was also no longer an option. Id.

§ 73.062(a) (“A person. . . may file a plea in abatement not later than the 30th day

after the date the person files an original answer . . . .”) (emphasis added). Under

these circumstances, the statute would offer no relief at all. Section 73.055 does not

allow a plaintiff to send a request for correction, clarification, or retraction that

identifies only certain statements; avoid abatement with regard to the identified

statements due to that request; later amend his claims to contend that additional

statements were defamatory; avoid abatement because the time to abate has lapsed;

and then proceed to a jury on all statements despite failing to comply with section

73.055.

      On its face, section 73.062 does not render meaningless section 73.055’s

concrete requirement that a plaintiff can maintain an action “only if” he complies

with the DMA. Nor does section 73.062 suggest that failure to request an

abatement―a request that, under the DMA, a defendant “may” make―somehow

excuses noncompliance with the DMA. Abatement is not the exclusive option (or,


                                          12
in this case, even a possible option) when one has failed to and can no longer make

a timely and sufficient request as the DMA requires.

      Likewise, the statutory language refutes Hogan’s argument that the loss of

exemplary damages is the remedy for failure to comply with the DMA. Cf. Warner

Bros. Entm’t, 538 S.W.3d at 812 (“[W]hen the statute is read in its entirety, giving

effect to all its provisions and considering the purpose of the statute, the consequence

for failing to timely make a request is not dismissal, but rather preclusion of recovery

of exemplary damages.”). The DMA specifically addresses exemplary damages: it

provides that a plaintiff may seek exemplary damages if he requests correction,

clarification, or retraction within 90 days of learning about the publication of an

allegedly defamatory statement. TEX. CIV. PRAC. & REM. CODE § 73.055(c).

Conversely, the DMA provides a one-year period to timely send a retraction request

and satisfy the DMA’s terms. So a request sent after 90 days from when the plaintiff

learns of the statement, but before 1 year from when a defamation claim accrues,

allows a plaintiff to proceed with a defamation claim. In that circumstance, the

plaintiff loses the right to recover exemplary damages but not the right to maintain

his claim. It cannot be that the remedy for failing to send a request throughout the

entire permissible year-long period (in direct contravention of the statutory

requirement) is the loss of exemplary damages, when the statute provides that a




                                          13
plaintiff loses the right to those damages by failing to send a request in the 90-day

time period.

      We are also unpersuaded by Hogan’s argument that the DMA does not bar his

claims because Zoanni did not challenge the sufficiency or timeliness of his March

2014 letter under section 73.058(c). Id. § 73.058(c) (“If a defendant intends to

challenge the sufficiency or timeliness of a request for a correction, clarification, or

retraction, the defendant must state the challenge in a motion to declare the request

insufficient or untimely served not later than the 60th day after the date of service of

the citation.”). In this appeal, Zoanni is not challenging the sufficiency or timeliness

of Hogan’s March 2014 request for correction, clarification, or retraction. She makes

no argument as to the three statements identified in that letter. To the contrary, she

concedes that Hogan satisfied the DMA with regard to those statements.

      She instead argues that Hogan did not satisfy the DMA with regard to nine

other statements. It is undisputed that Hogan’s March 2014 letter did not identify

those nine statements at issue in this appeal. When Zoanni received the March 2014

letter, she had no way to know that Hogan would later allege other instances of

defamation. The DMA did not require Zoanni to divine that Hogan would later assert

that she also defamed him in other statements. To the contrary, the DMA required

Hogan to send requests for correction, clarification, or retraction that identified “with




                                           14
particularity” the statements he alleges are defamatory. Id. § 73.055(d). He did not

do so with regard to these nine statements.

      Finally, the dissent’s view that one request for correction, clarification, or

retraction (of a particular publication) enables a plaintiff to proceed on any new or

distinct defamation claims against the same defendant cannot be reconciled with the

statute’s specificity requirement. Section 73.055 requires a plaintiff’s request to state

“with particularity the statement alleged to be false and defamatory and, to the

extent known, the time and place of publication.” Id. § 73.055(d) (emphasis added).

It also requires the request to allege the defamatory meaning “of the statement,” and

to “specif[y] the circumstances causing a defamatory meaning of the statement if it

arises from something other than the express language of the publication.” Id.

(emphasis added); see also id. § 73.057(c) (“If a request for correction, clarification,

or retraction has specified two or more statements as false and defamatory, the

correction, clarification, or retraction may deal with the statements individually in

any manner provided by Subsection (b).”) (emphasis added).

      The legislature could have included an exception to the specificity

requirement. It could have said that identifying one statement with particularity

would suffice to support other allegations of defamation against the same defendant.

But it did not. The statute contains no exception to the specificity requirement when




                                           15
a plaintiff happens to ultimately allege more than one instance of defamation—

whether related or not—against the same defendant.

      The dissent focuses on a single use of the word “action” and argues that

“action” is distinct from “claim.” Id. § 73.055(a) (“A person may maintain an action

for defamation only if . . . .”). But the DMA’s “applicability” provision states that

the statute (and its requirement of a sufficiently specific and timely request for

correction, clarification, or retraction) applies “to a claim for relief, however

characterized, from damages arising out of harm to personal reputation caused by

the false content of a publication.” Id. § 73.054 (emphasis added).

      The DMA’s use of the word “action,” read in the context of the statute as a

whole, does not nullify the statute’s requirement that a plaintiff must identify (in his

request for correction, clarification, or retraction) allegedly defamatory statements

with particularity. Nor does the term “action” allow a plaintiff to make an end-run

around the statute’s dictate that one may maintain an action for defamation only if

he sends a timely and sufficiently specific request for correction, clarification, or

retraction as to each allegedly defamatory statement. See, e.g., Jaster v. Comet II

Const., Inc., 438 S.W.3d 556, 573 (Tex. 2014) (Willett, J., concurring) (“Because

these tools for analyzing isolated words have limitations, context becomes essential

to clarity.”); Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)




                                          16
(“[C]ourts should not give an undefined statutory term a meaning out of harmony or

inconsistent with other provisions.”).

      We hold that Hogan cannot recover on the nine statements at issue. The trial

court erred in submitting those claims to the jury over Zoanni’s objection.

                                     Damages

      Because we sustain Zoanni’s challenge to 9 of the 13 statements at issue in

this case, and because we cannot determine what part of the damages award is based

on the 4 remaining statements, we reverse the entire damages award. We cannot

determine the extent to which the damages award rests on legally invalid bases; nor

can we evaluate the substance of Zoanni’s arguments challenging damages premised

on the collective bases of liability—some of which are not legally viable. In sum,

we cannot be sure that reliance on invalid bases of liability exerted no significant

influence on the jury’s damages award. See Indian Oil Co. v. Bishop Petrol. Inc.,

406 S.W.3d 644, 660 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (where

damages could not be allocated between amounts for which the defendant was liable

and amounts for which he was not, remittitur was not a suitable remedy).




                                         17
                               Opinions Versus Facts5

      For the four remaining statements in the case, we address Zoanni’s contention

that they represent opinions rather than facts, and thus that Hogan may not premise

defamation claims on them. They are not statements of opinion.

      An opinion cannot support a claim for defamation. Dall. Morning News, Inc.

v. Tatum, No. 16-0098, 2018 WL 2182625, at *3 (Tex. May 11, 2018); Johnson v.

Phillips, 526 S.W.3d 529, 535 (Tex. App.—Houston [1st Dist.] 2017, pet. filed)

(first citing Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013); then citing Carr v.

Brasher, 776 S.W.2d 567, 570 (Tex. 1989) (“[A]ll assertions of opinion are

protected by the first amendment . . . .”)). To be actionable, a statement must assert

a verifiable fact. Tatum, 2018 WL 2182625, at *3; Neely, 418 S.W.3d at 62. We

classify a statement as fact or opinion based on the statement’s verifiability and the

context in which the statement was made. Tatum, 2018 WL 2182625, at *3 (“[E]ven

when a statement is verifiable as false, it does not give rise to liability if the ‘entire

context in which it was made’ discloses that it is merely an opinion masquerading

as a fact.”); Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002). Whether a statement

presents a fact or an opinion is a question of law to be decided by the court. Johnson,

526 S.W.3d at 535.

      Zoanni contends that the following four statements are opinions:


5
      Based on our above holding, we do not reach Zoanni’s other arguments.
                                           18
      (1) From a Facebook post and blog: “Growing concerns for my baby
          girl!...What a good dad DOES NOT do: He doesn’t film young girls in
          his youth group going to the bathroom and getting into the shower thru
          the bathroom air vent in his house (caught and admitted to) . . . .”

      (2) From a blog: “In my Facebook blast I did several weeks ago I said he
          was caught and admitted to the camera in the bathroom. Let me be 100%
          clear, he was guilty, but did not admit to the camera in the bathroom but
          I know it was there. . . .”

      (3) From Zoanni’s email: “David Hogan still has severe issues. . . . Please
          tell me if you think it[’s] right that a minister who is involved in child
          porn is put back into a church as children[’s] pastor after one year visiting
          another pastor once a month and an online course as his rehab??”

      (4) From Zoanni’s email: “David Hogan still has severe issues... There is an
          open Sex Crimes case with Harris County Precinct 4, Case Number 13-
          98077. . . . I filed a report on him last summer.”

      In context, each statement presents a verifiable fact. Whether Hogan filmed

girls in his youth group or admitted to filming them, was involved in child

pornography, or was the subject of an open sex crimes case, are facts that are

objectively verifiable. These are not statements of opinion. See Tatum, 2018 WL

2182625, at *3; Johnson, 526 S.W.3d at 536-40; Neely, 418 S.W.3d at 62.

      We overrule Zoanni’s third issue.




                                          19
                                    Conclusion

      We reverse and render judgment that Hogan take nothing on his defamation

claims premised on the nine statements barred by the DMA. We remand for further

proceedings on the four statements remaining at issue (all of which are listed above

in the “Opinion Versus Facts” section). See TEX. R. APP. P. 44.1(b).



                                             Jennifer Caughey
                                             Justice

Panel consists of Justices Jennings, Massengale, and Caughey.

Jennings, J., dissenting.




                                        20
