                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 July 10, 2012 Session

MITZI BAYNE RUTH, executrix of the Estate of FRED W. BAYNE, et al., v.
    HOME HEALTH CARE OF MIDDLE TENNESSEE, LLC, et al.

                Appeal from the Chancery Court for Bradley County
                  No. 07-284 Hon. Jerri S. Bryant, Chancellor




              No. E2011-02681-COA-R3-CV-FILED-OCTOBER 1, 2012




This action was appealed before to this Court and this appeal follows our remand back to the
Trial Court for determination of the ambiguous terms found in the contract between the
parties. Upon remand, the Trial Court conducted an evidentiary hearing and made a finding
as to what the parties intended as to the terms of the contract previously found ambiguous.
On appeal, we affirm the Judgment of the Trial Court's determination of what the document
provided and determined the rights of the parties, and remand.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and J OHN W. M CC LARTY, J., joined.


Robert R. Stone, Knoxville, Tennessee, for the appellants, Home Health Care of Middle
Tennessee, LLC and B. Fred Allred, III.

C. Crews Townsend and Thomas E. Hayes, Chattanooga, Tennessee, for the appellees, Mitzi
Bayne Ruth, executrix for the Estate of Fred W. Bayne, the Estate of Fred W. Bayne, and
Home Health Care of East Tennessee, Inc.
                                           OPINION

                                          Background

        This appeal involves the interpretation of a written operating agreement of a limited
liability company. The dispute arose after the death of Fred W. Bayne (Bayne), who was an
equal partner with defendant B. Fred Allred, III (Allred) in a home-health care business
known as Home Health Care of Middle Tennessee (HHC-MT, the Company or the LLC).
Bayne and Allred had been equal partners in another home-health care venture, Home Health
Care of Western Tennessee (HHC-WT). Both business entities were operated as separate
Tennessee limited liability companies and the partners had executed separate written
Operating Agreements for each company.

        Following the death of Bayne in February 2007, Bayne’s daughter Mitzi Bayne Ruth,
as the executrix of the estate of Fred W. Bayne (Executrix), the estate of Fred W. Bayne (the
Estate)and Home Health Care of East Tennessee, Inc. (HHC-ET)1 filed suit against HHC-
MT and Allred. The complaint sought, among other things a declaratory judgment that
Bayne’s death was an event triggering dissolution of HHC-MT. The complaint also alleged
that Allred had attempted to tender to the Estate $182,462 for an assignment of Bayne’s
membership interest in HHC-MT, had continued operating HHC-MT after Bayne’s death,
had refused to repay loans Bayne and HHC-ET made to HHC-MT and refused to reimburse
HHC-ET for services rendered by Bayne and HHC-ET while Bayne was alive.

        Both plaintiffs and defendants moved for partial summary judgment, and the Trial
Court entered an order granting plaintiffs' motion for partial summary judgment holding that
Fred W. Bayne's death was a liquidating event triggering the dissolution of HHC-MT
pursuant to the Company's Operating Agreement, and that Allred did not have the right
pursuant to the Operating Agreement to purchase Bayne's membership interest and continue
the business. The Trial Court ordered Allred to dissolve the Company pursuant to the
Tennessee Limited Liability Company Act, Tenn. Code Ann. § 48-201-101, et seq. and to
render an accounting to the estate for the operations of the Company since February 9, 2007,
the date of Bayne’s death. The Company and Allred were further ordered to pay the estate
its share of any profits or distributions received that were not equally shared with the estate.
Defendants’ motion for summary judgment was denied.

       The remaining issues in the suit were heard, but prior to the hearing, the parties
reached an agreement as to the amounts HHC-MT owed to the Bayne Estate and HHC-ET
for loans made during the life of Bayne. The sole issue remaining for the Trial Court’s

       1
           Allred was not a member of HHC-ET.

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determination was whether HHC-MT owed HHC-ET for services rendered prior to Bayne’s
death and if it did, the amount owed. The Trial Court held that HHC-MT owed HHC-ET
$433,570.61 for services received.

        The Company and Allred appealed the Trial Court’s granting of plaintiffs’ motion for
partial summary judgment to this Court.

                                       The Appeal

This Court, in Ruth v. Home Health Care of Middle Tennessee, LLC, E2009-00845-COA-
R3-CV, 2010 WL 744936 (Tenn. Ct. App. Mar. 3, 2010), held that the parts of the Operating
Agreement the Trial Court relied on to find Bayne's death was a liquidating event triggering
the dissolution of HHC-MT and that Allred did not have the right pursuant to the agreement
to purchase Bayne's membership interest and continue the Company business were
ambiguous. This Court explained that it found the Operating Agreement “particularly
ambiguous” in that it requires a vote by Majority Interest to overcome a dissolution and
Majority Interest is defined in terms of Membership Interests of Members in relation to
Capital Interests, which are in turn defined with reference to Capital Accounts. The Court
described these definitions in the Operating Agreement as “convoluted, inextricably
intertwined, and subject to fairly being understood in more than one way.” Ruth at *5
(emphasis added). This Court concluded:

       Given that the Operating Agreement is ambiguous, the ultimate issue in this case,
       which is what was the intent of the parties to the Operating Agreement, becomes a
       disputed factual issue. Therefore, summary judgment was not proper on the issue of
       whether Allred had the right to purchase Fred W. Bayne's membership interest
       pursuant to [] [the Operating Agreement] thereby stopping the dissolution triggered
       by the death of Fred W. Bayne.

Id.

        The Court vacated the grant of partial summary judgment to plaintiffs and remanded
the case to the Trial Court for further proceedings in order to determine the intent of the
parties to the ambiguous Operating Agreement, and whether a dissolution of the Company
is required pursuant to the Operating Agreement. Id. at * 6.

                                    Trial on Remand

      After remand, the Trial Court heard evidence to determine the intent of the parties
who executed the Operating Agreement regarding dissolution of the Company. In its Order

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entered, the Court found that, as to the ambiguous dissolution provision in the Operating
Agreement, there was no direct proof of Allred’s intent. It did find, however, “indices of
Bayne’s intent . . . .” A summary of the Court’s findings of fact is:

       1.     Bayne did not want HHC-MT to pass to Allred after his death.
       2.     Bayne made loans to HHC-MT. Bayne would be unlikely to continue to loan
              money to HHC-MT if his death would cause him to cease holding 50 percent
              of the company.
       3.     Bayne and Allred were partners for a short time in a West Tennessee company
              (HHC-WT) for which there was an Operating Agreement. That Operating
              Agreement provided a method for surviving members to purchase a deceased
              member’s interest for fair market value.
       4.     Bayne and Allred had equal capital accounts. Further, from 2001 to 2007, the
              capital accounts for Bayne and Allred always remained 50/50, whether the
              company showed a profit or a loss.

       The Trial Court concluded that the above summarized evidence showed that Bayne
and Allred intended to keep their interest at 50% each and to part ways upon a member's
death. The Court also found the evidence also showed that the parties intended that neither
party would ever hold a majority interest, thus Allred did not hold the “majority interest”
required under the Operating Agreement to purchase Bayne’s membership interest and to
continue to operate the Company. Based on these findings of fact as to the intent of the
parties, the Trial Court held that the Operating Agreement requires that HHC-MT must be
dissolved. The Court retained continuing jurisdiction to supervise the dissolution of the
Company and ordered the defendants to render an accounting of the operations of the
Company from February 9, 2007 forward and the Court stated that, if needed, it would
conduct a second trial to address any issues that arise from the accounting. Although this
judgment was not final, the Trial Court granted the parties permission “to seek an
interlocutory appeal with respect to the Court’s order regarding dissolution . . . and the
Court’s findings of fact and conclusions of law regarding the parties intent under the
Operating Agreement with respect to dissolution.

       Defendants HHC-MT and Allred filed the appeal. The issues on appeal are:

       A.     Whether the Trial Court erred by construing majority interest” as defined in the
              operating agreement of HHC-MT to mean 51% of capital held by both
              members and non-members of the LLC?

       B.     Was the Trial Court’s decision that the parties intended HHC-MT to dissolve
              upon a member’s death supported by the evidence and the language of the

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              operating agreement?

       C.     Whether the Trial Court erred in holding that consent to avoid dissolution of
              a Tennessee limited liability company formed after July 1, 1999 was not
              allowed by Tenn. Code Ann. § 48-245-101(b)(2010) because the company’s
              operating agreement addressed the matter?

       D.     Whether the Trial Court abused its discretion by refusing to admit the
              testimony of the draftsman of the operating agreement as to a typographical
              error and his intent when drafting a provision for the purchase of a deceased
              member’s interest in the company?

              (1)    if the Trial Court did abuse its discretion on this issue, would the
                     excluded testimony have made a difference in the outcome of the case?

        A trial court’s evidentiary rulings are reviewed for an abuse of discretion only. White
v. Vanderbilt Univ., 21 S. W. 3d 215, 222 (Tenn. Ct. App. 1999). A trial court’s factual
findings are reviewed by this Court de novo with a presumption of correctness, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d): Cross v. City of
Memphis, 20 S. W. 3d 642, 644 (Tenn. 2000). The trial court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. Taylor v.
Fezell, 158 S.W.3d 352, 357 (Tenn. 2005), Union Carbide Corp. v. Huddleston 854 S.W.2d
87, 91 (Tenn. 1993).

      The first issue on appeal, although stated somewhat differently by appellant, is
whether the Trial Court was correct when it found there was sufficient evidence to show that
Bayne intended HHC-MT to dissolve upon a 50/50 member’s death and that there was no
evidence of Allred’s intent.

      This Court’s earlier ruling that the terms of Section 12.1(e) of the Operating
Agreement were ambiguous is the law of the case. The law of the case doctrine in
Tennessee has been clearly established:

       [U]nder the law of the case doctrine, an appellate court's decision on an issue of law
       is binding in later trials and appeals of the same case if the facts on the second trial
       or appeal are substantially the same as the facts in the first trial or appeal. The
       doctrine applies to issues that were actually before the appellate court in the first
       appeal and to issues that were necessarily decided by implication. The doctrine does
       not apply to dicta.



                                              -5-
Creech v. Addington, 281 S.W.3d 363, 383 (Tenn. 2009)(citing Memphis Publ'g Co. v. Tenn.
Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.1998)). The
exceptions to the law of the case doctrine are limited and a reconsideration of an issue is
permitted only if: (1) the evidence produced on remand is substantially different than the
evidence produced at the initial proceeding; (2) the earlier findings of law are “clearly
erroneous and would result in manifest injustice if allowed to stand”; (3) the prior ruling is
“contrary to a change in controlling law that occurred between the first and second appeal.”
Memphis Publ'g Co. at 306. We hold that none of these exceptions are applicable here, thus,
we are bound to follow the holding in Ruth, 2010 WL 744936 at * 5, that the specified terms
of Section 12.1(e) of the Operating Agreement are so ambiguous the section’s meaning
cannot be discerned by its language alone, as the law of the case.

       Although both appellants and appellees acknowledge in their briefs that the Court of
Appeals held that the critical terms in Section 12.1(e) are so ambiguous as to render that
section’s meaning indiscernible, both parties ignore that the holding is the law of the case.
Instead, they each argue that this Court should interpret the section as written. The Trial
Court, did follow the law of the case and instead of attempting to construe Section 12.1(e)
as written, correctly looked to parole evidence presented at trial to ascertain what the parties
intended as to dissolution of the LLC upon death of one partner and the setting aside of the
dissolution by the remaining partner.

        This Court set out the well settled rules of contract interpretation in Kafozi v.
Windward Cove, LLC, 184 S.W.3d 693 (Tenn. Ct. App. 2005)(appeal denied Jan. 30, 2006)
as follows:

       In resolving a dispute concerning contract interpretation, our task is to ascertain the
       intention of the parties based upon the usual, natural, and ordinary meaning of the
       contract language. Planters Gin Co. v. Fed. Compress & Warehouse Co., Inc., 78
       S.W.3d 885, 889–90 (Tenn.2002)(citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95
       (Tenn.1999)). A determination of the intention of the parties “is generally treated as
       a question of law because the words of the contract are definite and undisputed, and
       in deciding the legal effect of the words, there is no genuine factual issue left for a
       jury to decide.” Planters Gin Co., 78 S.W.3d at 890 (citing 5 Joseph M. Perillo,
       Corbin on Contracts, § 24.30 (rev. ed.1998); Doe v. HCA Health Servs. of Tenn., Inc.,
       46 S.W.3d 191, 196 (Tenn.2001)). The central tenet of contract construction is that
       the intent of the contracting parties at the time of executing the agreement should
       govern. Planters Gin Co., 78 S.W.3d at 890. The parties' intent is presumed to be that
       specifically expressed in the body of the contract. “In other words, the object to be
       attained in construing a contract is to ascertain the meaning and intent of the parties
       as expressed in the language used and to give effect to such intent if it does not

                                              -6-
       conflict with any rule of law, good morals, or public policy.” Id. (quoting 17
       Am.Jur.2d, Contracts, § 245).

       This Court's initial task in construing the Contract at issue is to determine whether the
       language of the contract is ambiguous. Planters Gin Co., 78 S.W.3d at 890. If the
       language is clear and unambiguous, the literal meaning of the language controls the
       outcome of the dispute. Id. A contract is ambiguous only when its meaning is
       uncertain and may fairly be understood in more than one way. Id. (emphasis added).
       If the contract is found to be ambiguous, we then apply established rules of
       construction to determine the intent of the parties. Id. Only if ambiguity remains after
       applying the pertinent rules of construction does the legal meaning of the contract
       become a question of fact. Id.

Kafozi, at 698-99.

        An ambiguous provision in a contract generally will be construed against the party
drafting it. Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 612 (Tenn. 2006)(citing Hanover
Ins. Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590, 592 (1968); Vargo v. Lincoln Brass
Works, Inc., 115 S.W.3d 487, 492 (Tenn. Ct. App.2003)). The parol evidence rule provides
that parol evidence “is inadmissible to contradict, vary, or alter a written contract where the
written instrument is valid, complete, and unambiguous, absent fraud or mistake or any claim
or allegation thereof.” Bradford v. Sell, 240 S.W.3d 834, 838 (Tenn. Ct. App. 2007)(citing
Airline Const. Inc. v. Barr, 807 S.W.2d 247, 259 (Tenn. Ct. App.1990); 32A C.J.S. Evidence
§ 851 at 213 (1974); Tenn. Code Ann. § 47–2–202. However, when a contractual provision
is ambiguous, a court is permitted to use parol evidence, including the contracting parties'
conduct and statements regarding the disputed provision, to guide the court in construing and
enforcing the contract. Watson at 612 (citing Memphis Housing Auth. v. Thompson, 38
S.W.3d 504, 512 (Tenn.2001); Fidelity–Phenix Fire Ins. Co. of New York v. Jackson, 181
Tenn. 453, 181 S.W.2d 625, 631 (1944); Vargo, 115 S.W.3d at 494). To aid the court's
discernment of the parties' intention, however, the parol evidence rule does not prohibit the
court from considering the circumstances surrounding the formation of the contract, the
business to which the contract relates, and the construction placed upon the contract by the
parties in carrying it out. Adkins v. Bluegrass Estates, Inc., 360 S.W.3d 404, 412 (Tenn. Ct.
App. 2011), appeal denied (Dec. 14, 2011)(citing Healthmart USA, LLC v. Directory
Assistants, Inc., No. M2010–00880-COA- R3- CV, 2011 WL 1314662 at *2 (Tenn. Ct. App.
April 6, 2011)).

      Appellants acknowledge that while both parties were alive, that neither party held a
“Majority Interest”. Both parties acknowledge that under Section 12.1(e) of the Operating
Agreement,, Bayne’s death was a “Liquidating Event”. Both parties also agree that Bayne’s

                                              -7-
estate acquired Bayne’s “Economic Interest” upon his death and that the estate is not a
“Member” and as such, does not have a “Capital Interest” in the LLC. Allred contends that
although he had only a 50% interest in the LLC before Bayne’s death, as the only remaining
“Member”, he now has a “Majority Interest” in the LLC and that he can vote that “Majority
Interest” to avoid dissolution of the LLC. This argument, however, is based solely on the
very terms that this Court held to be ambiguous in the prior decision.

       The Trial Court followed this Court’s directive and looked at the parole evidence
presented to determine the “intent of the parties to the ambiguous operating Agreement, and
whether a dissolution of the Company is required pursuant to the Operating Agreement."
The Trial Court found that there was no direct proof of Allred’s intent but that there were
“indices of Bayne’s intent” that they keep their interest at 50% each and that the LLC would
dissolve upon a member’s death. The evidence does not preponderate against the Trial
Court’s findings of fact. Tenn. R. App. P. 13(d).

        The Trial Court concluded based on the evidence presented that Bayne and Allred did
not want either party to hold a majority interest and that they intended that HHC-MT dissolve
upon the death of a Member. The Trial Court made four specific findings of fact that support
this interpretation of the ambiguous dissolution provision. First, the Trial Court found that
Bayne and Allred each had Capital Accounts of equal value, and those Accounts “always
remained at 50/50, whether there was a loss or a gain, whether the business was in the red
or the black” from 2001 through 2007 when Bayne died.

         Second, from 2001 to 2007 Bayne and HHC-ET loaned close to one million dollars
to HHC-MT. There was testimony that based on these loans, it was Bayne who took all of
the operational risk associated with HHC-MT. The Trial Court stated that based on the
evidence of the loans that it “makes no logical sense that Mr. Bayne, through [HHC-ET],
would continue to loan money into [HHC-MT] if he could just die and not . . . be recognized
. . . an equal part of [HHC-MT].” The Trial Court concluded that “Bayne would be unlikely
to continue to loan money to HHC-Middle if his death would cause him to cease holding 50
percent of the company.” The evidence supports this finding by the Trial Court. Appellants
argue that Bayne’s loans to HHC-MT are evidence that Bayne intended to become a creditor
of HHC-MT but there is no evidence in the record to support this assertion. The evidence
is that Bayne took on more risk than Allred because he made the loans but he continued to
keep his Capital Account equal to Allred’s Account. We agree with the Trial Court that the
fact that Bayne took on more risk than Allred by making loans instead of additional capital
contributions demonstrate the parties intended to remain equal partners in the LLC.

      Third, Bayne’s longtime business associate, Annette Green, testified that Bayne did
not want his share of HHC-MT to be acquired by Allred upon Bayne’s death and he became

                                             -8-
concerned that Allred would try to take over the company. Ms. Green stated that Bayne
asked her to get a copy of the Operating Agreement and to give it to his son-in-law who is
an attorney. Appellants contend that this testimony bolsters their argument that the Operating
Agreement gives Allred, the surviving member, the right to continue the LLC by paying
Bayne’s estate the value of his Capital Account. This argument is contrary to Ms. Green’s
testimony. She stated that Bayne’s concern was based on his knowledge of Allred’s past
business dealings and that it was not based on the provisions of the Operating Agreement.
There was no evidence presented that contradicted Ms. Green’s testimony, and the evidence
supports the Trial Court’s conclusion on this point.

        Next, the Trial Court found to support its finding that Bayne and Allred intended to
be equal owners of the HHC-MT was that they had briefly been partners in HHC-WT. The
HHC-WT Operating Agreement provided a method for surviving members to continue the
LLC following a member’s death by paying fair market value for the deceased member’s
interest. However, the conclusion the Trial Court drew from that interpretation was
inappropriate because the Agreements were drafted by different lawyers and the language
of the two agreements differ. However, the evidence does not preponderate against the Trial
Court's finding that Bayne and Allred intended that they would have an equal interest in
HHC-ET and that the LLC would dissolve upon one of their deaths, and that based upon this
showing of intent, Allred does not hold a majority interest. We affirm the Trial Court's
Judgment.

        The Trial Court also held that the Tennessee Limited Liability Company Act, Tenn.
Code Ann. § 48-201-101 et seq. allows parties the freedom to contract with respect to events
of dissolution. On appeal, Allred and HHC-MT dispute this holding. This Court holds that
the Trial Court was correct and should be affirmed based upon Tenn. Code Ann. § 48-245-
101(6) which provides that "an LLC formed on or after July 1, 1999 . . . be dissolved upon
the occurrence of: . . . any event specified in the articles or operating agreement including,
but not limited to, events of withdrawal by a member or action or procedure as set forth in
the articles or operating agreement . . . ." Based on this language, we conclude the
Legislature did not intend the dissolution avoidance statute of the Act to apply, where the
parties had expressed their intentions regarding dissolution in a written operating agreement.

        Appellants also argue on appeal the Trial Court abused its discretion when it excluded
certain testimony from Dudley Taylor, Allred’s attorney who drafted the HHC-MT Operating
Agreement. We review evidentiary rulings of the trial court on an abuse of discretion
standard. Danny L. Davis Contractors, Inc. v. Hobbs, 157 S.W.3d 414, 418-19 (Tenn. Ct.
App. 2004)(citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992)).
The abuse of discretion standard requires us to consider:



                                             -9-
        (1) [W]hether the decision has a sufficient evidentiary foundation; (2) whether the
        trial court correctly identified and properly applied the appropriate legal principles;
        and (3) whether the decision is within the range of acceptable alternatives.

Id. at 419 (citations omitted).

       The Trial Court excluded any testimony by Mr. Taylor regarding what he intended the
words of the Operating Agreement to mean based upon a finding that such testimony was not
relevant to the question of what the parties meant the Operating Agreement to provide.
Relevant evidence is defined in Tennessee Rule of Evidence 401:

        “Relevant evidence” means evidence having any tendency to make the existence of
        any fact that is of consequence to the determination of the action more probable or
        less probable than it would be without the evidence .

         Appellants argue on appeal that Taylor should have been allowed to testify regarding
an alleged typographical error in the Operating Agreement and as to his intent in drafting the
Operating Agreement. The alleged typographical error can be found in Section 12.1(e) of
the Operating Agreement, which this Court found to be ambiguous. According to Mr.
Taylor, the mistake in the document is that in the second paragraph, second sentence of
Section 12. 1(e) the words “Majority Interest” appears twice as follows: “The Members
hereby agree that, notwithstanding any provision of the Act, the Company shall not dissolve
prior to the occurrence of a Liquidating Event. Furthermore, if an event specified in Section
12.1(e) hereof occurs, the remaining Members may, within ninety (90) days of the date such
event occurs, by Majority Interest vote by Majority Interest elect a successor Member
. . .” (emphasis added).

       The removal of the second “Majority Interest” from this Section does not cure the
ambiguity found by this Court in the first appeal. There the Court held that the ambiguity it
found in the Agreement was based on the interdependent defined terms used to explain what
was meant by “Majority Interest” and not because of the use of “Majority Interest” twice in
the same sentence. The prior opinion in this case indicates that this Court recognized and
acknowledged that there was an error in Section 12.1(e) as the opinion cites the language of
section as: “ by Majority Interest vote by Majority Interest [sic] elect a successor Member .
. .” The [sic] indicates recognition of a mistake in the original document.2 Thus, the
redundancy in Section 12.1(e) was not relevant to this Court’s earlier finding that the
Operating Agreement was ambiguous and was not relevant at trial.


        2
           In legal writings “significant mistakes in the original should be followed by “[sic]” and otherwise
left as they appear in the original. The Bluebook, a Uniform System of Citation, 18th Edition.

                                                    -10-
       Moreover, Mr. Taylor’s testimony regarding his general intent as to the meaning of
the Operating Agreement also lacks relevancy. Our remand of the case was for
determination of the intent of the parties to the agreement, not the intent of the drafter. Mr.
Taylor’s proffered testimony regarding his intent as to the meaning of the Operating
Agreement did not indicate that he was drafting the document at the direction of the parties
and, in fact, he stated that he used a form that he had used for other clients and never
discussed Section 12. 1 with either Bayne or Allred. Mr. Taylor’s testimony as to his intent
would not have assisted the Trial Court as to the intent of the parties and was not relevant.
The Trial Court did not abuse its discretion when it excluded Mr. Taylor's testimony.

       The Judgment of the Trial Court is affirmed and the cause remanded, with the cost of
the appeal assessed to B. Fred Allred, III.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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