                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

 COLDWELL BANKER-HOFFMAN BURKE and DONNA SLINEY, ET AL.
                v. KRA HOLDINGS, ET AL.

                 Rule 3 Appeal from the Chancery Court for Shelby County
                No. 107899-3  The Honorable D. J. Alissandratos, Chancellor



                     No. W1999-02721-COA-R3-CV - Decided May 5, 2000


        Plaintiff, a licensed affiliate real estate broker, sued to collect a commission for locating a
particular property for a prospective buyer. When the sellers refused to sell the property, the
prospective buyer abandoned efforts to obtain the property. About six weeks later, the prospective
buyer contacted one of the sellers and was able to negotiate with all of the sellers for purchase of
the property and ultimately consummated the purchase for a higher sale price than originally
contemplated. Plaintiff alleges that she had an oral agreement for $150,000.00 commission, or,
alternatively, that she was acting as a facilitator and entitled to a commission for her services as such.
From the trial court’s order granting summary judgment to defendant, plaintiff has appealed.

Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Chancery Court affirmed

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.

Rex L. Brasher, Jr., Memphis, For Appellant, Sliney

David J. Harris, Susan M. Clark, Memphis, For Appellees

                                              OPINION


        This is plaintiffs’ appeal from the trial court’s order granting summary judgment to
defendants. In January 1996, the appellant Donna Sliney (“Sliney”), a licensed affiliate real estate
broker, and the appellee Ken Anderson (“Anderson”) met to discuss Anderson’s interest in
purchasing a golf course. Sliney advised Anderson that the Farmington Country Club near Memphis
might be for sale. Following their initial meeting, Sliney took Anderson on a tour of the Farmington
Country Club on January 9, 1996. After the tour, Anderson confirmed to Sliney his intent to
purchase the club. Sliney then called David Johnson, a Memphis attorney, and told him about
Anderson’s interest in purchasing Farmington. Johnson immediately arranged for a meeting that
afternoon between himself, Anderson, Anderson’s associate Michael Baker, and Russell Bloodworth
of the Boyle Investment Company. Farmington was owned by Albert Austin, Lloyd Lovitt and the
Boyle Investment Company.

        At the January 9 meeting, Bloodworth informed Anderson that Farmington was not for sale
but that he would check with the other owners to see if they had any interest in selling the club.
Shortly after the January 9 meeting, Bloodworth informed David Johnson that one of the club’s
owners was adamantly opposed to selling the club and had instructed Bloodworth not to pursue any
offers to buy Farmington. Following this failed attempt, neither Johnson nor Bloodworth had any
involvement in the sale of the Farmington club.

        Shortly after the first unsuccessful attempt, Sliney inquired of Anderson whether he was still
interested in buying Farmington, and she suggested that she arrange a meeting between Anderson
and O.W. Winsett, a real estate developer whom she thought might be able to arrange a meeting
directly between Anderson and Farmington’s owners. On January 15, 1996, Anderson, Sliney, and
Michael Baker met with Winsett and William Bartholomew, another local attorney. The parties
agreed that Bartholomew would act as a trustee for Anderson, and in that capacity, Bartholomew
agreed to deliver to the owners an offer to buy the club for $5 million. Anderson agreed to pay at
closing $300,000 to cover fees, commissions and expenses related to the transaction. Sliney stated
at the meeting that her commission would be three percent of the sale price or $150,000. Winsett
was to have received an equal amount.

        Following the January 15 meeting, Bartholomew drafted a sales contract for the purchase of
Farmington and he also prepared a Declaration of Trust authorizing Bartholomew to act as trustee
for Anderson. The Declaration of Trust provided that Anderson would advance the required earnest
money and that he would pay $300,000 at closing to cover fees, commissions, and expenses of the
transaction. On January 17, 1996, Anderson and Baker met with Winsett and Bartholomew at which
time Anderson signed the Declaration of Trust and wrote the earnest money check to Bartholomew
for $250,000.

       After the January 17 meeting, Bartholomew called Albert Austin, one of Farmington’s
owners and told him that he represented a potential buyer. Despite Austin’s confirmation that the
club was not for sale, Bartholomew delivered the purchase contract to Austin. Austin testified that
he never discussed the contract with the other owners because the club was not for sale. During the
same time period, Winsett delivered a copy of the contract to John Stone, an employee of Boyle
Investment Company, another Farmington owner. Approximately two weeks later, Stone called both
Winsett and Bartholomew to inform them that the owners were not interested in selling the
Farmington Country Club. On February 8, 1996, Bartholomew returned to Anderson the earnest
money check for $250,000. Following the activities of January and February, 1996, Sliney,
Bartholomew and Winsett had no further involvement in Anderson’s purchase of Farmington.
Sliney even stated in her amended complaint that “[O]n or about February 26, 1996, Mr. Anderson
informed your parties that he had no further interest in pursuing investment in a golf course.”

       In March 1996, approximately six weeks after the last failed attempt, Anderson called J.
Bayard Boyle, Jr., chairman of the Boyle Investment Company, to inquire whether Anderson could
convince Boyle to sell him the Farmington club. On March 28, 1996, Anderson met for lunch with

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Bayard Boyle and Lloyd Lovitt, another of the club’s owners. At that meeting, Anderson told Boyle
and Lovitt that he would pay $5 million for the club. Following a series of telephone conversations
over the course of the following two weeks, the owners agreed to sell and Anderson agreed to buy
the Farmington club for $5.5 million, ten percent more than his original offer. On April 16, 1996,
Anderson formed KRA Holdings, LLC, a limited liability company, to purchase the club. On May
6, 1996, the club’s owners and KRA signed a purchase contract, and on June 5, 1996, the transaction
closed. None of Farmington’s owners ever met with or negotiated with Ms. Sliney, Mr. Winsett, Mr.
Hoffman or anyone other than Anderson, his business associate Michael Baker, and his attorney.
After purchasing Farmington, Anderson refused to pay Sliney the commission which she demanded.

        On July 19, 1996, Donna Sliney and O.W. Winsett filed a complaint in the Chancery Court
of Shelby County against KRA Holdings, LLC and Ken R. Anderson. The plaintiffs alleged claims
for breach of contract, for quantum meruit, for violation of the Tennessee Consumer Protection Act
against Anderson, and for inducement/procurement of breach of a contract against KRA. The
plaintiffs filed an amended complaint on July 30, 1996, adding as plaintiffs Coldwell Banker
Hoffman-Burke, Inc. and Daniel C. Hoffman, Jr. The record reflects that Sliney was, at all times
relevant hereto, a licensed affiliate real estate broker for Coldwell Banker Hoffman-Burke, Inc., and
that her managing broker was Daniel C. Hoffman, Jr. On September 6, 1996, the defendants filed
an answer and a counterclaim for damages arising from the plaintiffs’ allegedly frivolous and
meritless lawsuit brought solely for the purpose of harassment.

        Following discovery, the defendants on September 30, 1997, filed a motion for summary
judgment seeking dismissal of all of the plaintiffs’ claims. The defendants argued that the plaintiffs
were not entitled to recover damages for nonpayment of the commission because (1) they were not
the procuring cause of the sale; (2) Sliney, as an affiliate broker, could not lawfully collect a real
estate commission; and (3) Sliney could not act as Anderson’s agent in the absence of an agency
agreement as required by T.C.A. § 62-13-401.

         In response on November 14, 1997, Sliney filed a motion for leave to amend the amended
complaint, which the trial court granted on July 23, 1998. In the second amended complaint, Sliney
alleged that she was acting in accordance with an oral contract governed by T.C.A. § 62-13-102
pertaining to a “facilitator.” Sliney prayed that the trial court find that the parties had an oral
contract for a three percent commission and that she be awarded $150,000 or in the alternative that
the trial court find that she be entitled to a $150,000 finder’s fee based on the parties’ oral agreement
for a three percent commission. Also, on November 14, 1997, Sliney filed a motion for a partial
voluntary non-suit with prejudice in which she sought to relinquish her claims brought under the
Tennessee Consumer Protection Act, for inducement/procurement of breach of a contract, for treble
damages, punitive damages, and for attorneys’ fees. The trial court granted Sliney’s motion for
partial non-suit with prejudice by order entered on March 11, 1998. By Order entered January 23,
1998, plaintiff O.W. Winsett also took a voluntary non-suit with prejudice as to the foregoing claims.
         On September 3, 1998, the trial court entered an order granting summary judgment to
defendants as to all claims of plaintiffs Coldwell Banker Hoffman-Burke, Inc., Daniel C. Hoffman,
Jr., and O.W. Winsett. The order of dismissal of the foregoing claims was made final pursuant to
the express requirements of Rule 54.02 Tenn.R.Civ.P. The trial court’s September 3, 1998, order

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also granted the defendants’ motion for summary judgment as to all claims brought by Donna Sliney
“in any capacity except to the extent that she states a claim for remuneration as a ‘finder.’”

         Following the September 1998 order, both plaintiff Sliney and defendants filed cross motions
for summary judgment as to the remaining claims. By an order entered February 16, 1999, the trial
court granted defendants’ motion for summary judgment and denied plaintiff Sliney’s motion. On
March 12, 1999, Coldwell Banker Hoffman-Burke, Inc., Daniel C. Hoffman, Jr., and Donna Sliney
filed in the trial court a notice of appeal, appealing the order of summary judgment entered February
16, 1999. Plaintiff O.W. Winsett did not file a notice of appeal.

        The dispositive issue on appeal is whether the trial court erred in granting summary judgment
to defendants. Before discussing this issue, however, we will deal with the defendants’ issue
asserting that the appeals of Coldwell Banker-Hoffman Burke, Inc, and Daniel C. Hoffman, Jr., are
not timely filed.

        On September 3, 1998, the trial court’s order granted summary judgment to defendants on
all claims brought by plaintiffs, Coldwell Banker-Hoffman Burke, Inc., and Daniel C. Hoffman, Jr.
The order states in pertinent part:

               IT IS THEREFORE ORDERED ADJUDGED AND DECREED:

               1. That the defendants’ Motion for Summary Judgment is granted as
               to all causes of action brought by the plaintiffs Coldwell Banker
               Hoffman-Burke, Inc., and Daniel C. Hoffman, Jr. There being no just
               reason for delay, a final judgment shall be entered against these
               plaintiffs.

Rule 3, Tenn.R.App.P., providing for an appeal as of right, states as pertinent to the issue before us:

               Rule 3. Appeal as of Right: Availability; Method of Initiation. -
               (a) Availability of Appeal as of Right in Civil Actions. - In civil
               actions every final judgment entered by a trial court from which an
               appeal lies to the Supreme Court or Court of Appeals is appealability
               as of right. Except as otherwise permitted in Rule 9 and in Rule
               54.02 Tennessee Rules of Civil Procedure, if multiple parties or
               multiple claims for relief are involved in an action, any order that
               adjudicates fewer than all the claims or the rights and liabilities of
               fewer than all the parties is not enforceable or appealable and is
               subject to revision at any time before entry of a final judgment
               adjudicating all the claims, rights, and liabilities of all parties.
               (Emphiasis added).

       Rule 54.02, Tenn.R.Civ.P., provides for making final any order that adjudicates fewer than


                                                 -4-
all the claims or the rights and liabilities of all the parties:

                When more than one claim for relief is present in an action, whether
                as a claim, counterclaim, cross-claim, or third party claim, or when
                multiple parties are involved, the court, whether at law or in equity,
                may direct the entry of a final judgment as to one or more but fewer
                than all of the claims or parties only upon an express determination
                that there is no just reason for delay and upon an express
                direction for the entry of judgment. In the absence of such
                determination and direction, any order or other form of decision,
                however designated, that adjudicates fewer than all the claims or the
                rights and liabilities of fewer than all the parties shall not terminate
                the action as to any of the claims or parties, and the order or other
                form of decision is subject to revision at any time before the entry of
                the judgment adjudicating all the claims and the rights and liabilities
                of all the parties. (Emphasis Added).

        The September 3, 1998 order was made final pursuant to Rule 54.02, Tenn.R.Civ.P., see Fox
v. Fox, 657 S.W.2d 747 (Tenn. 1983); thus, notice of appeal by these plaintiffs must have been filed
within thirty days thereafter. This Court is prohibited from extending the time allowed for taking
an appeal as of right. Rule 2, Tenn.R.App.P.; Edmundson v. Pratt, 945 S.W.2d 754 (Tenn. Ct. App.
1996). This Court has no jurisdiction to hear the appeal where the notice of appeal is not timely
filed. Id. We also note that these appellants have not filed a brief, and the appeal is subject to
dismissal upon a motion of the appellees. Rule 29(c), Tenn.R.App.P.

        We will now consider plaintiff Sliney’s issue. A motion for summary judgment should be
granted when the movant demonstrates that there are no genuine issues of material fact and that the
moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving
for summary judgment bears the burden of demonstrating that no genuine issue of material fact
exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the
court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow
all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd
v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

                Once it is shown by the moving party that there is no genuine issue
                of material fact, the nonmoving party must then demonstrate, by
                affidavits or discovery materials, that there is a genuine, material fact
                dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]
                provides that the nonmoving party cannot simply rely upon his
                pleadings but must set forth specific facts showing that there is a
                genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).


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Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts
reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since
only questions of law are involved, there is no presumption of correctness regarding a trial court's
grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s
grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk,
954 S.W.2d 722, 723 (Tenn. 1997).

         At all times relevant, Ms. Sliney was an affiliate broker, as that term is defined in T.C.A. §
62-13-102 (2). In Barden v. Roberts, No. 94029-2 R.D., 1989 WL 28715 (Tenn. Ct. App. Mar. 29,
1989), this Court held that an affiliate broker lacked standing to sue a property owner for a real estate
commission, relying upon the Supreme Court’s decision in Turnblazer v. Smith, 379 S.W.2d 772
(Tenn. 1964). In Turnblazer, our Supreme Court held that a real estate salesman in the employ of
a real estate broker had no right to maintain an action in his own name against the broker’s client for
a commission. In Barden, this Court noted that “a comparison of former and current statutes reveals
no appreciable difference between a ‘real estate salesman’ and an ‘affiliate broker.’ An affiliate
broker is still under the direction and control of a licensed broker and engaged by the broker to do
his bidding.” Barden, at *2. The Barden Court further noted that the chancellor, allowing the
affiliate broker to maintain the action to collect the commission, erroneously relied upon T.C.A. §
62-13-105, which was added to Chapter 13 in 1973. The statute provides:

                62-13-105. Action by broker to collect compensation. - No action
                or suit shall be instituted, nor recovery be had by any person, in any
                court of this state for compensation for any act done or service
                rendered, the doing or rendering of which is prohibited under the
                provisions of this chapter to other than by licensed brokers, affiliate
                brokers or time-share salespersons, unless such person was duly
                licensed hereunder as a broker, affiliate broker or time-share
                salesperson at the time of performing or offering to perform any such
                act or service, or procuring any promise or contract or the payment of
                compensation for any such contemplated act or service.

        The Court interpreted the statute to require that a license be held as a condition precedent to
any affiliate broker or real estate broker maintaining an action for commissions, but the Court
reasoned that “this code section does not give an affiliate broker standing to sue the client directly
when this standing does not otherwise exist.” The Barden Court also fortified its interpretation of
T.C.A. § 62-13-105, and the Court’s reliance upon Turnblazer, by a comparative analysis of the
disciplinary statute in existence at the time of Turnblazer and in existence at the time of the Barden
decision. Both statutes provide for license revocation or suspension of a real estate salesman (in the
former statute) and an affiliate broker (in the present statute) for accepting a commission or valuable
consideration, except from the licensed broker by whom he is employed. The Barden Court held
that an affiliate broker lacks the legal capacity to bring an action directly against the broker’s client.
The trial court correctly granted summary judgment, because Ms. Sliney may not maintain an action
to recover a commission.


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       Moreover, Ms. Sliney’s claim for a fee for a sale of the real estate fails, because there was
no written agency agreement. T.C.A. § 62-13-401, as in effect on January 1, 1996 provides:

               A real estate licensee may provide real estate services to any party in
               a prospective transaction, with or without an agency relationship to
               one (1) or more parties to the transaction. Until such time as a
               licensee enters into a specific written agreement to establish an
               agency relationship with one (1) or more parties to a transaction, such
               licensee shall be considered a facilitator and shall not be considered
               an agent or advocate of any party to the transaction. An agency or
               subagency relationship shall not be assumed, implied or created
               without a written bilateral agreement that establishes the terms
               and conditions of such agency or subagency relationship.
               (Emphasis Added).

        It is undisputed that there was no agency agreement between Anderson and Sliney or any of
the brokers at Coldwell Banker-Hoffman Burke, Inc. The only written agreement relied upon by
Sliney is the declaration of trust entered into between Anderson and Bartholomew which provides
as follows:

                    This Agreement made and entered into by and between
               WILLIAM BARTHOLOMEW, as Trustee, and KEN R.
               ANDERSON, as Beneficiary,

                                         WITNESSETH:

                      Beneficiary desires to purchase property and business known
               as Farmington Country Club, and to assist in this transaction hereby
               appoints William Bartholomew, Trustee, with full power to execute
               a contract and other documents for the purchase and sale of said
               property.

                      Beneficiary has reviewed and approved said contract for
               purchase and sale, and agrees to advance the required earnest money
               and pay the purchase price of $5,000,000.00 provided for in the
               contract, and, in addition, the closing and adjustment items also
               provided for.

                      Beneficiary further agrees to pay at closing $300,000.00 to
               cover fees, commissions, and expenses of the transaction, to be
               disbursed through the Trustee.

                       Trustee declares that he is acting as Trustee in behalf of


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                 Beneficiary, for the use and benefit of Beneficiary, and Trustee shall
                 have no personal liability under the terms and conditions of the
                 contract for purchase and sale, or hereunder.

                        IN WITNESS WHEREOF, the parties have executed this
                 instrument this 17th day of January, 1996.

        The Declaration of Trust authorized only Bartholomew to act on Anderson’s behalf and
provided for him to distribute fees and commissions. It is undisputed that the transaction
contemplated in the Declaration of Trust never materialized and that Bartholomew returned the
$250,000.00 earnest money check to Anderson February 8, 1996. There was no further involvement
by Bartholomew or anyone else under the terms of the Declaration of Trust. The transaction
contemplated by the Declaration of Trust was abandoned when the earnest money was returned, and
the parties to this agreement considered the contract to be defunct. See Jenkins v. Goddard, No.
03A01-9704-CH-00139, 1997 WL528921 (Tenn. Ct. App. Aug. 28, 1997).

        Even assuming arguendo that Sliney could receive a fee for the real estate transaction and
that there was an agency contract, there is no evidence in the record that Ms. Sliney was the
“procuring cause” of the transaction. In Pacesetter Properties, Inc. v. Hardaway, 635 S.W.2d 382,
388 (Tenn. Ct. App. 1981), this Court held that a broker “procures” the sale of real property only if
the broker “presents a customer able, willing and ready to deal on terms satisfactory to his principal.
This is generally evidenced by a written offer on terms previously named by the principal.” 635
S.W.2d at 388. The Court further explained:

                         Appellant seems to conceive that, once an agent has
                 introduced a customer to his principal, he (the agent) thereby has a
                 perpetually vested interest in any transaction taking place between the
                 customer and the principal. Such is not the rule. The rights of the
                 agent are limited to those transactions of which his efforts are found
                 to be the efficient, procuring cause. It does not apply to negotiations
                 instituted in good faith after a substantial delay following a
                 termination of first negotiations.

Id. at 389-90.

       In Pacesetter, the owners had agreed to permit a broker to find a tenant for their property.
The broker found a prospective tenant, but negotiations were unsuccessful. Three months later, the
owners and the same prospective tenant entered into a lease agreement. In declining to find that the
broker was entitled to a commission, the Court held:

                 If the efforts of a broker have failed to produce a contract, and
                 negotiations have “broken off,” it is not “bad faith” or “overreaching”
                 for the seller to respond to later overtures of the buyer without


                                                  -8-
               allowing the broker to participate in the renewed negotiations.

Id. at 390.

        There is no evidence to demonstrate that Ms. Sliney was the procuring cause of the
transaction between Anderson and Farmington’s owners. Despite the best efforts of Donna Sliney,
O.W. Winsett, David Johnson, and William Bartholomew, they failed to produce an agreement
between Anderson and the owners of the Farmington Country Club. Following the activities of
January and February, 1996, Donna Sliney had no further involvement in Anderson’s purchase of
Farmington, and she herself stated in the complaint that Anderson told her in February 1996 that “he
had no further interest in pursuing investment in a golf course.” Moreover, none of Farmington’s
owners ever met with or negotiated with Ms. Sliney, Mr. Winsett, or Mr. Hoffmann. Clearly, after
the efforts of all others had failed and several weeks had passed during which no further efforts were
undertaken by anyone toward the purchase of Farmington, it was Anderson’s personal telephone call
to Bayard Boyle that ultimately resulted in the agreement to sell the Farmington club. Two weeks
following the meeting, Anderson and the owners agreed to the terms of sale whereby Anderson
would pay an additional $500,000 or ten percent more than his original offer in order to purchase the
club for $5.5 million.

       As noted by this Court in Robinson v. Kemmons Wilson Realty Co., 293 S.W.2d 574, 585
(Tenn. Ct. App. 1956),

                       If a broker, after introducing a prospective customer to his
               employer to no purpose, abandons his employment entirely, or if,
               after procuring a person who proves to be unwilling to accept the
               terms of his principal, he merely ceases to make further endeavors to
               negotiate a deal with that particular individual and all negotiations in
               that direction are completely broken off and terminated, he will not
               be entitled to a commission if his employer subsequently renews
               negotiations with the same person, either directly or through the
               medium of another agent, and thus effects a sale without further effort
               of the broker first employed. 8 Am. Jur. Brokers § 144, p. 1069.

Id. at 585.

         Finally, Ms. Sliney alleges that she and Anderson had an oral agreement whereby she would
act as a “facilitator” under T.C.A. §62-13-102 and would thereby garner a fee for her work “finding”
the Farmington Country Club. Just as there was insufficient evidence to establish an agency contract
between Sliney and Anderson, we similarly conclude that the record reflects no agreement whereby
Sliney would act as a finder for Anderson for a fee. Even if there had been such an agreement, Ms.
Sliney herself stated that “[O]n or about February 26, 1996, Mr. Anderson informed your parties that
he had no further interest in pursuing investment in a golf course.” It is evident from the record that
Ms. Sliney did not “find” a property that was for sale. The first two attempts to purchase the club


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had failed because the club was not for sale. In fact, the owners testified that the club was not for
sale until after they had met with Anderson who had convinced them to sell.

        The record reveals that there was no agreement between Ms. Sliney and Anderson for
payment of any fee for “finding” a property. To the contrary, viewing the record as a whole, it
reflects that Ms. Sliney’s involvement was predicated on her expectation of obtaining a commission
as a selling agent. She testified in her deposition: “I know that I was the selling - you know,
representing as a selling agent.” The sale contemplated in the Declaration of Trust did not
materialize, and the right to a commission on the part of the broker failed. Summary judgment
terminating the broker’s right to a commission terminates any claim by Ms. Sliney.

        Accordingly, for the foregoing reasons, the order of the trial court granting summary
judgment to defendants is affirmed, and the case is remanded to the trial court for such further
proceedings as may be necessary. Costs of the appeal are assessed against the appellant, Donna
Sliney.




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