              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2013-CA-02013-SCT

INN BY THE SEA HOMEOWNER’S
ASSOCIATION, INC.

v.

SEAINN, LLC, DRACE CONSTRUCTION CORP.,
CARUBBA ENGINEERING, SOUTHERN CROSS
CONSTRUCTION COMPANY, HARRY BAKER
SMITH ARCHITECTS II, PLLC AND GREG
STEWART

DATE OF JUDGMENT:             10/31/2013
TRIAL JUDGE:                  HON. JOHN C. GARGIULO
TRIAL COURT ATTORNEYS:        DAVID C. GOFF
                              ADAM STONE
                              NICHOLAS VAN WISER
                              THOMAS L. CARPENTER
                              WILLIAM J. LITTLE, JR.
COURT FROM WHICH APPEALED:    HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      ROSS DOUGLAS VAUGHN
                              JOSEPH L. McREYNOLDS
                              DAVID C. GOFF
ATTORNEYS FOR APPELLEES:      NICHOLAS VAN WISER
                              KAYTIE MICHELLE PICKETT
                              ADAM STONE
                              THOMAS LYNN CARPENTER, JR.
                              VINCENT AUGUST NOLETTO, JR.
                              CARTER R. HALE
                              LEAH NICHOLS LEDFORD
                              WILLIAM J. LITTLE, JR.
NATURE OF THE CASE:           CIVIL - CONTRACT
DISPOSITION:                  AFFIRMED - 07/30/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE WALLER, C.J., CHANDLER AND KING, JJ.
       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    This action was brought by Inn By the Sea Homeowner’s Association, Inc. (“IBTS”)

against various defendants involved in the development, design, and construction of Inn By

the Sea Condominiums in Pass Christian when the condominiums were rebuilt after they

were destroyed by Hurricane Katrina. Within a year of reconstruction, significant problems

with the building began to manifest, problems allegedly related to defects in the design and

construction of the property. The trial court granted summary judgment to the defendants

after excluding the damages testimony of IBTS’s expert witnesses. We find that the trial

court did not abuse its discretion in excluding the plaintiff’s witnesses, and therefore affirm

the grant of summary judgment.

                         FACTS AND PROCEEDINGS BELOW

¶2.    According to IBTS, the appellant-plaintiffs, Inn By the Sea Condominiums began

showing signs of significant structural defects within a year of the issuance of the Certificate

of Occupancy in 2009. ITBS sued the developer, various contractors, the structural engineer,

the architect, and ten John Does as “unknown persons that provided material services, acted

in a supervisory capacity, or were otherwise involved in the construction of the

Condominiums.”1 The parties entered into an Agreed Scheduling Order on March 3, 2012,

with a trial date set for December 3, 2012. IBTS hired Michael Bailey of Kyle Associates,

LLC, as its expert structural engineer and Alfred Hayes of Hayes Architect as its expert

       1
        Prior to filing suit, IBTS sent notice of the defects and a request for timely repairs
to the developer and general contractor pursuant to the requirements of Mississippi’s New
Home Warranty Act. See Miss. Code Ann. §§ 83-58-1 to 83-58-17 (Rev. 2011).

                                               2
architect to investigate and identify defects in the design and construction of the property.

IBTS timely designated these experts on June 16, 2012, and produced a copy of the

witnesses’ reports and cost estimates. Bailey estimated costs to correct engineering design

defects to be $1,830,000. Hayes identified twenty-three design and construction defects

which he estimated would cost $1,322,000 to repair. He subsequently updated his report in

August 2012 and revised his repair estimate to $2,689,000 for the twenty-three identified

defects. His report contained a description of each defect and a rounded, ballpark cost

estimate to repair each defect. For example, Item Two states:

       2.     Condenser Equipment is installed on wood sleepers with pieces of
              roofing used as straps. This is not complying with code wind loading.
              Equipment should be installed on structural curbs flashed into the roof
              or rated equipment racks with pipe legs that can be flashed into roofing
              system. Design/Negotiation and Construction Observation Fee
              $3,000.00. Construction Cost $100,000. E&O Item 1 and 5.

(Emphasis added.) The description of each defect ended similarly with a cursory rounded

statement of the construction cost.

¶3.    In late August 2012, IBTS learned that Michael Bailey had suddenly left his job,

moved out town, and could not be located or further made available as an expert on this case.

At a hearing on September 12, 2012, the trial court orally continued the case without a new

trial date in order for IBTS to find a new engineering expert. IBTS hired Ashton Avegno, a

retired principal of Kyle Associates and a structural engineer with more than forty years of

experience to replace Bailey. Avegno provided his report on November 2, 2012. In addition

to largely agreeing with Bailey’s original report, Avegno also expressed concern that the

foundation pilings “as designed” were overloaded by as much as “2.82 times its safe capacity

                                             3
and the as built piling would be loaded 2.16 times its capacity.” He recommended that a “pile

load test . . . be done at the site using the same size and length pile as the existing.”

¶4.    Avegno was unwilling, however, to provided exact itemized cost estimates for the

items of engineering defects he identified. He estimated a total repair budget for all items

between “$1,660,000 and $4,020,000.” He openly stated that the “costs provided here are my

best estimates” but that he was “not a qualified estimator or contractor and therefore cannot

be liable for the accuracy of these numbers. If more accurate numbers are needed then a

licensed contractor or cost estimator should be engaged to provide them.”

¶5.    Also on November 2, 2012, IBTS filed a Motion for Trial Setting and Scheduling

Order, proposing a trial date of April 15, 2013, with deadlines for the plaintiff’s experts to

be designated by November 8, 2012, and the defendant’s experts to be designated by

December 7, 2012. IBTS informed the court that IBTS had been unable to depose any of the

defendants’ witnesses, including any of the defendants, and that the new scheduling order

should be issued to allow IBTS to conduct depositions and to seasonably supplement its

expert reports. The defendants objected to the proposed new scheduling order, arguing that

the deadline for expert designations had passed and that Avegno should not be allowed to

offer any new opinions, including his opinion that the foundation piles were overloaded.2

¶6.    The court heard IBTS’s motion for a new scheduling order on December 21, 2012.

It granted IBTS’s motion to depose the defendants but limited IBTS’s right to supplement



       2
        IBTS also filed a Mississippi Rule of Civil Procedure 9(h) motion on December 5,
2012 to substitute two of the “John Does” with Nosidam of Mississippi, Inc., and Greg
Steward d/b/a Madison Homes. The court denied this motion.

                                               4
its expert reports based only information learned in the depositions and excluding new

information learned from the test piles recommended by Avegno. The court reset trial for

August 12, 2013, and established new deadlines for completion of discovery by April 12,

2013, with dispositive or Daubert3 motions to be filed by May 13, 2013.

¶7.    IBTS filed a motion for clarification or reconsideration on January 11, 2013, arguing

that the defendants would not be prejudiced by a more extensive expert supplementation

given the new trial date, new discovery deadlines, and the fact that the defendants had been

on notice of potential structural defects in the foundation piles since November 2, 2012. The

court denied IBTS’s motion for reconsideration (among other motions) after a hearing on

March 14, 2013. IBTS had supplemented its motion for reconsideration, pointing out that,

in the February 2012 deposition of defendant Carubba Engineering, Carubba had

acknowledged that it had not used any pile load tests or geotechnical reports to verify load

capacity or soil conditions at the construction site. Rather, despite having written on three

separate occasions to the project architect that a pile load test was needed, he ultimately used

a safe allowable load for his calculations “from my experience as a design engineer in these

types of soils.” IBTS argued that, since the court’s previous order permitted supplementation

of the expert report with evidence obtained from the depositions, opinions on the piles and

the results of the pile tests should appropriately be allowed.4


       3
       Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed 2d
469 (1993)
       4
       While acknowledging that the court had ruled not to allow the formal
supplementation of expert testimony with opinions on the piles, IBTS circulated a copy of
Avegno’s April 9, 2013, supplemental report, based on the results of the test piles, which

                                               5
¶8.    The court held a hearing on July 30, 2013, to hear eighteen separate in limine motions,

including Daubert and dispositive motions. Included were defense motions to exclude the

expert testimony of Hayes and Avegno under Mississippi Rule of Evidence 702. The

defendants asserted that Hayes had failed to offer detailed support or explanation for his

opinion on construction repair costs, and that Avegno was, by his own admission, not

qualified to provide any opinion on costs. IBTS argued that the court should defer ruling on

the reliability of the experts’ costs estimates until trial, when it would have the benefit of

their testimony.

¶9.    The court granted the motion to exclude Avegno from testifying as to monetary

damages, finding that he was not qualified by his own admission and that he had declined to

permit supplementation of his report to provide the basis for his cost estimates.

¶10.   However, the Court denied the motion to exclude Hayes’s damages testimony, and at

the request of the defense continued trial and ordered Hayes to supplement his report. The

court denied both parties’ motions for summary judgment at that time. The order stated in

relevant part:

       Furthermore, this Court holds that the Inn is granted two weeks from the date
       of this hearing, which is August 13, 2013, in which to provide Alfred
       Hayes’[s] summary of the grounds for each opinion relating to cost. This Court
       will then take up any motions pertaining to that supplementation if any such
       motions are needed.

       This Court further continues this case from its August 12, 2013 setting, to a
       time convenient for this Court and the parties.


confirmed that the foundation piles were indeed overloaded. He opined that as many as 110
additional piles would be needed to stabilize the foundation, at a cost ranging between
$500,000 and $800,000.

                                              6
¶11.   In response to the trial court’s order for supplementation, Hayes added a ten-paragraph

affidavit with exhibits to his report. He identified the RS Means Construction Cost Data as

the basis for his cost estimates. He asserted that RS Means is “the most used and respected

guide available to the construction industry” and that the RS Means “method of estimating

is widely accepted as one of the most accurate forms of pricing available.”

¶12.   Hayes attached an Exhibit B demonstrating a “step by step analysis” of how he used

RS Means to estimate the cost as applies to the roof replacement item, which was the third

of the twenty-three items identified as structural design defects in his report. He further

asserted that each “of the enumerated items in my report [is] contained within [M]eans and

[was] researched for Inn By the Sea.” Hayes used a 2008 version of RS Means to select the

data used to calculate the repair estimate.

¶13.   The defendants moved to strike Hayes’s supplementation and renewed their motion

for summary judgment. The court granted the defendants’ motion to exclude Alfred Hayes’s

damages testimony as well as the defendant’s motion for summary judgment and final

judgment on October 31, 2013. The order stated in part:

       Plaintiff filed his supplementation at 11:07 PM, on August 13, 2013, the last
       day of the two week period. The supplementation included calculations on
       only one of the 24 cost items . . .

       Thus, the Court finds that the Defendants are in no better position than they
       were on August 12, 2013. The substance and details supporting the damage
       estimates should have been disclosed, and this Court ordered them disclosed.
       This disclosure ordered by this Court extended to all calculations and
       methodology used to reach estimates for all 24 cost items, but were only
       provided for Cost Item No. 3. This Court finds that as to Number 3, which
       calculations were derived from an obsolete manual, the 2008 edition of RS
       Means, is unreliable.

                                              7
       . . . This Court grants the Defendants’ motion to exclude the testimony of Fred
       Hayes as to his damages calculations. This Court notes that as a result, there
       are no damages estimates left for the Plaintiff to present as evidence in this
       trial. Accordingly, summary judgment is granted as to all defendants in this
       cause of action.

¶14.   Below is a timeline summary of the major pretrial events in this litigation:

       March 2012           Original Agreed Scheduling Order entered with trial date
                            of Dec 3, 2012.

       June 2012            IBTS’s timely initial disclosure of experts and expert
                            reports.

       August 2012          IBTS’s structural expert Bailey disappears; trial
                            continued without date.

       November 2012        Avegno designated as replacement for Bailey,
                            recommends test piles; IBTS proposes new scheduling
                            order and trial date.

       December 5, 2012 IBTS files motion to substitute two new parties under
                        M.R.C.P. 9(h)

       December 21, 2012 Hearing held in which court grants IBTS’s motion to
                         depose defendants but limits expert supplementation to
                         new information gained in depositions; excludes any
                         future test pile results or testimony. Trial set for August
                         12, 2013

       March 14, 2013       Court hears and denies IBTS’s motion to reconsider
                            limitation of expert supplementation of pending test pile
                            results considering Carubba’s deposition testimony
                            regarding foundation piles.

       April 9, 2013        IBTS circulates proposed supplementation of Avegno’s
                            expert report including the results of the test pile
                            indicating that piles are overloaded and as many as 110
                            additional piles would be needed to stabilize the
                            foundation, at a cost ranging between $500,000 and
                            $800,000.



                                             8
       July 30, 2013       Trial continued without new trial date at request of
                           defendants to require supplementation of Hayes’s expert
                           report by August 13, 2013, “to provide Alfred Hayes’s
                           summary of the grounds for each opinion relating to
                           cost.” Avegno excluded from testifying as to cost
                           damages due to his statement in his initial report that he
                           was not a qualified cost estimator.

       August 13, 2013     Hayes supplements report with ten-paragraph affidavit
                           and Exhibit B with itemized calculations for Item 3 roof
                           repairs. (Exhibit A describes the 2008 RS Means
                           Construction Costs Data. The parties agree that RS
                           Means is generally reliable; the defendants object to the
                           use of the 2008 version as outdated).

       October 31, 2013    Court excludes Hayes’s testimony on damages as
                           unreliable and grants summary judgment to the
                           defendants due to lack of proof of damages.

Inn By the Sea timely appealed. Because we find the question of whether IBTS’s experts

were properly excluded dispositive, we do not address the other issues raised by IBTS on

appeal.

                                    DISCUSSION

¶15.   This Court reviews grants of summary judgment de novo. Smith ex rel. Smith v.

Gilmore Mem’l Hosp., Inc., 952 So. 2d 177, 181 (Miss. 2007). The evidence will be

reviewed in the light most favorable to the party opposing summary judgment. Bowie v.

Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1041 (Miss. 2003). Rulings regarding the

admissibility of expert testimony are reviewed for abuse of discretion. Miss. Transp.

Comm’n v. McLemore, 863 So. 2d 31, 40 (Miss. 2003).

       WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
       EXCLUDING THE EXPERT DAMAGES TESTIMONY OF ALFRED
       HAYES AND ASHTON AVEGNO.

                                            9
¶16.   IBTS argues that the trial court abused its discretion in excluding Hayes’s expert

testimony regarding cost damages. Hayes’s qualifications and the relevance of his testimony

are not in question. Rather, the defendants successfully challenged the reliability of Hayes’s

method and his failure to disclose the basis of the majority of his cost opinions. Mississippi

Rule of Evidence 702 provides that:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) the testimony
       is based upon sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles
       and methods reliably to the facts of the case.

Under Mississippi Rule of Civil Procedure 26(b)(4)(A)(I),

       A party may through interrogatories require any other party to identify each
       person whom the other party expects to call as an expert witness at trial, to
       state the subject matter on which the expert is expected to testify, and to state
       the substance of the facts and opinions to which the expert is expected to
       testify and a summary of the grounds for each opinion.

¶17.   The reliability of expert testimony is analyzed under the nonexhaustive factors

adopted from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L. Ed 2d 469 (1993), which include:

       (1) whether the expert’s theory can be or has been tested;

       (2) whether the theory has been subjected to peer review and publication;

       (3) the known or potential rate of error of a technique or theory when applied;

       (4) the existence and maintenance of standards and control; and

       (5) the degree to which the technique or theory has been generally accepted in
       the scientific community.

                                              10
Miss. Transport. Comm’n v. McLemore, 863 So. 2d at 37 (Miss. 2003). The Daubert test

is not meant to be so tightly applied that it replaces traditional methods for challenging

“shaky, but admissible” expert testimony, through “[v]igorous cross examination,

presentations of contrary evidence, and careful instruction on the burden of proof.” Id. at 37.

“The threshold for admissibility is not great, keeping in mind the fact that Mississippi Rule

[of Evidence] 401 favors the admission of evidence when it has probative value.” Utz v.

Running & Rolling Trucking, Inc., 32 So. 3d 450, 457 (Miss. 2010).

¶18.   Seasonable supplementation of expert testimony is required under the guidelines of

Mississippi Rule of Civil Procedure 26(f). The function of the supplementation requirement

is to fairly inform the opposing party of the evidence against it with an opportunity to meet

it and to avoid “trial by ambush.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749, 758

(Miss. 2011). Defendants are entitled to supplementation on “the identity of each person

expected to be called as an expert witness at trial, the subject matter on which the person is

expected to testify, and the substance of the testimony . . . . A duty to supplement responses

may be imposed by order of the court, agreement of the parties, or at any time prior to trial

through new requests for supplementation of prior responses.” M.R.C.P. 26(f)(1) & (3).

¶19.   Multiple reliable methods of calculating construction damages are available to experts

depending on the nature of the cause of action and best evidence available of the underlying

facts and data. See Schwartzkopf & McNamara, General Methods of Damage Calculation,

Calc. Constr. Dmgs. § 1.03 (2014). What matters on a case-by-case basis is adherence to the

principles of Mississippi Rule of Evidence 702 and Mississippi Rule of Civil Procedure 26,



                                              11
and, in particular, adherence to the requirement that experts disclose the basis of their

opinions with sufficient specificity to allow defendants to prepare a defense and avoid trial

by ambush. Cost estimates do not have to be presented with mathmatical certainty; rather,

sufficient evidence should be presented so that the trier of fact can determine damages within

a reasonable certainty.

¶20.   In Sumrall Church of Lord Jesus Christ v. Johnson, 757 So. 2d 311 (Miss. Ct. App.

2000), our Court of Appeals found the appropriate measure of damages was the actual repair

cost that already had been incurred by the plaintiff in fixing the deficiencies of the electrical

contractor. We affirmed the reliability of repair-cost estimates in Hoover v. United Services

Auto. Association, 125 So. 3d 636 (Miss. 2013), where a qualified expert “used a cost-plus

estimate based on known values to arrive at his calculations. He assessed that it would cost

$40 per square foot to replace the roof, and multiplied this by the total square footage of the

house.” Id. at 645.

¶21.   Of particular significance is our unanimous decision in the products liability case

Hyundai Motor America v. Applewhite, 53 So. 3d 749, 758 (Miss. 2011), in which we

affirmed a defendant’s right to not be ambushed at trial with previously undisclosed

calculations forming the basis for the plaintiff’s expert opinions, even when the new

disclosure did not alter the original expert conclusions. In Hyundai, we found reversible

error in the plaintiff’s failure to disclose (via formal supplementation) changes in the velocity

calculations its experts used to form opinions on a car-crash impact. Even though the expert’s

ultimate conclusions remained the same, we found that the defendants had been ambushed



                                               12
in preparation of their defense, which relied on the initial velocity disclosures as the basis for

preparing the defense.

¶22.   Generally speaking, the annually published RS Means Construction Cost manual is

a reliable industry source of data and has been used with approval in cases involving expert

testimony on damages. See Traco Steel Erectors, Inc. v. Comtrol, Inc., 222 P.3d 1164 (Utah

2009); Hale v. Big H Constr., Inc., 288 P.3d 1046 (Utah Ct. App. 2012). But merely

disclosing that a five-year-old RS Means manual is the general basis for the conclusory

estimates on twenty-two of twenty-three items of alleged structural damages amounting to

several million dollars does not provide a sufficient disclosure of data for a trier of fact to

determine that the estimates have been calculated with reasonable accuracy or for a defendant

to meet the evidence.5 As it is, the testimony is unreliable because it fails to disclose the basis

of the expert opinion.

¶23.   We reiterate that the timing and outcome of Daubert considerations are squarely

within the discretion of the trial court. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); Edmonds v. State, 955 So. 2d 787, 792

(Miss. 2007). Pretrial obfuscation of the basis for expert opinions, especially when the court

has ordered further disclosure, is a game of chicken that parties should not play in light of

how our evidentiary standards have evolved to preclude trial by ambush. We note that the

court excluded Hayes’s testimony only after continuing trial to give him the (mandatory)



       5
        We note that portions of the calculations provided for Item Three do include some
aspects of calculation that could be extrapolated to the other items and create fodder for
cross-examination and opposing expert testimony, such as sales tax and permitting costs.

                                                13
opportunity to supplement his expert report with a specific basis for each of his opinions

relating to cost.

¶24.   After carefully examining the transcript of the hearing and the court’s written order

for supplementation, we agree with the trial court and the defendants that production of the

basis for only one itemized opinion out of twenty-three was not in compliance with the

degree of specificity reasonably ordered by the trial court. “The failure seasonably to

supplement or amend a response is a discovery violation that may warrant sanctions,

including the exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d at 758;

Ekornes-Duncan v. Rankin Med. Cir., 808 So. 2d 955, 958 (Miss. 2002). We find that the

trial court did not abuse its discretion in excluding Hayes’s testimony, particularly in light

of the fact that the trial court continued the trial and granted additional time for

supplementation.

¶25.   IBTS argues that the trial court also abused its discretion in finding that Avegno was

unqualified to provide expert testimony relating to damages, and in refusing to permit

supplementation of Avegno’s opinions relating to costs. IBTS argues that Avegno’s

statements in his initial report should be taken in the context of his replacement of Bailey,

that his experience and qualifications outlined in his curriculum vitae (which is part of the

record) counter his initial cautious declamation of his qualifications to provide cost estimates,

and that the trial court abused its discretion in failing to permit Avegno to supplement his

initial report with specific basis for his cost estimates.




                                               14
¶26.   An expert is qualified “only if the witness possesses scientific, technical, or

specialized knowledge on [the] particular topic” of his opinion. Bailey Lumber & Supply Co.

v. Robinson, 98 So. 3d 986, 992 (Miss. 2012) (quoting Worthy v. McNair, 37 So. 3d 609,

616 (Miss. 2010)). We agree with IBTS that “a witness need not be a specialist in any

particular profession to testify as an expert. The scope of the witness’s knowledge and

experience, and not any artificial classification, governs the question of admissibility.” R.

McNight & Son v. C. & I Entm’t, 100 So. 3d 1022 (Miss. Ct. App. 2012) (quoting Univ. of

Miss. Med. Ctr. v. Pounders, 970 So. 2d 141, 146 (Miss. 2007). But Avegno explicitly stated

in his expert report that the range of between “$1,660,000 and $4,020,000” was merely his

general estimate and that establishing sufficiently specific estimates would require bringing

in someone more qualified.

¶27.   We cannot ignore Avegno’s statements and rely on the general assertion that

Avegno’s background and experience do indeed indicate his qualifications to provide cost

estimates if only given an opportunity to supplement. We find that the trial court did not

abuse its discretion in granting the defendants’ Daubert motion to exclude Avegno as

unqualified to provide expert opinions relating to cost.6

                                     CONCLUSION




       6
         IBTS has presented a much stronger argument that the trial court abused its
discretion in refusing to permit the seasonable supplementation of Avegno’s expert report
regarding deficiencies of the foundation piles of the condominiums. However, we do not
address this argument, given our affirmation of summary judgment due to lack of admissible
evidence of damages.

                                             15
¶28.   We affirm the trial court’s grant of summary judgment on the grounds that the

plaintiff failed to present admissible expert opinions on damages. Hayes’s cost damages

opinions lacked sufficient disclosure of the method and calculations that formed the basis of

his report. Avegno was, by his own admission, not qualified to provide cost estimates relating

to his other opinions on structural defects. Because we affirm summary judgment on these

grounds, we do not find it necessary to address the other issues raised on appeal.

¶29.   AFFIRMED.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




                                             16
