Opinion
No. WD 58799
November 13, 2001 Modified December 26, 2001
Appeal from the Circuit Court of Cole County, Missouri, The Honorable Byron L. Kinder, Judge.
David J. Moen and Kent L. Brown Jefferson City, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Gail Vasterling, Assistant Attorney General Jefferson City, MO, for Respondent.
Before Smith, P.J., Smart and Howard, JJ.
Dorinda Craig appeals the judgment of the Circuit Court of Cole County dismissing on the pleadings, pursuant to Rule 55.27(b), her employment discrimination claims, under the Americans with Disabilities Act (ADA) and the Missouri Human Rights Act (MHRA), against the respondents: the Missouri Department of Health (MDH); and Daryl Roberts, Bureau Chief of the Bureau of Environmental Epidemiology; Pamela Rice Walker, Division Director; and Colleen Kivlahan, Director, both individually and in their official capacities with the MDH.
All rule references are to the Missouri Rules of Civil Procedure (2001), unless otherwise indicated.
The appellant raises four points on appeal. In Points I and II, she claims that the circuit court erred in dismissing her claims brought against the respondents under the MHRA as being time barred, pursuant to § 213.111.1, because the court misapplied the law by not applying: (1) the "litigation exception," tolling the statute of limitations; or (2) the "relation back doctrine," of Rule 55.33(c), relating back the filing of her MHRA claims to the filing of her ADA claim, which was timely. In Point III, she claims that the circuit court erred in dismissing her ADA claims against the respondents as being barred by sovereign immunity because in doing so, it relied on the Eighth Circuit's holding in Alsbrook v. City of Maumelle , 184 F.3d 999 (8th Cir. 1999), in that the court, not being bound by the Eighth Circuit's decision, should have rejected it as being the minority view among the circuits that have addressed this issue. In Point IV, she claims that the circuit court erred in overruling her motion for new trial or to set aside the trial court's judgment dismissing her cause of action on the pleadings and her motion for leave to file a third amended petition because in dismissing her cause of action on the pleadings, the circuit court did not rely on the pleadings actually in the record.
All statutory references are to RSMo 2000, unless otherwise indicated.
We affirm in part, and reverse and remand in part.
Facts
The appellant was employed by the MDH from August 1992 through September 1996 as a secretary. In September 1993, she was working in the Bureau of Environmental Epidemiology, under the supervision of Roberts. At that time, she had been diagnosed as suffering from depression, personality disorder and severe migraines, causing her to be hospitalized in December 1993, and again in January 1994, and causing her to miss work.
After returning to work in February 1994, in order to accommodate her claimed disability, the appellant asked Roberts for a change in her work schedule, which was denied. As a result, she filed an internal complaint in August 1994 with Kivlahan, alleging that Roberts was discriminating against her because of her disability. After filing the complaint, the appellant contends that she was subjected to repeated harassment from Roberts and co-workers in retaliation for her making the complaint and received poor performance reviews.
The appellant was off work for an extended period of time in August 1996, due to her claimed disability. She was terminated by the MDH on September 24, 1996, based upon her failure to return to work and her failure to comply with MDH policy requiring a written request for a leave of absence, accompanied by a doctor's diagnosis, prognosis and expected date of return to work.
The appellant filed an employment discrimination complaint on the basis of disability with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC). The EEOC issued the appellant a "right to sue" letter in September 1997. Within 90 days of receipt of the letter, she filed suit against the MDH on December 5, 1997, in the Circuit Court of Cole County alleging employment discrimination based on disability under the ADA. In her petition, she alleged that she was harassed by respondent Roberts and then terminated by the MDH because she had requested work accommodations for a disability, attributable to her depression, personality disorder, and severe migraine headaches. In her petition she sought, inter alia, reinstatement to her former position, payment of medical expenses incurred, and back pay from September 1, 1996, through the date of judgment. On January 9, 1998, prior to filing an answer to the appellant's petition, the MDH removed the case to the United States District Court for the Western District of Missouri, Central Division, alleging that the appellant's ADA claim arose under the constitution, laws, or treaties of the United States.
Although the record before us does not reflect that the appellant filed a first amended complaint in the federal court, it does reflect that on August 17, 1999, she filed a motion for leave to file a second amended complaint and to remand the case to state court. In her second amended complaint, she sought to add Roberts, Walker and Kivlahan as party defendants and to assert several additional theories of recovery, alleging claims under the MHRA; 29 U.S.C. § 794 of the Rehabilitation Act of 1973; 29 U.S.C. § 2601 et seq. (Family Medical Leave Act of 1993) (FMLA); 42 U.S.C. § 1983; and various "state law claims." The MDH filed objections to the appellant's motion for leave to amend, asserting that the additional theories of recovery, which she sought to assert, were barred by the state's immunity under the Eleventh Amendment. In a teleconference on August 27, 1999, the federal district judge advised the parties that the MDH's objections would be treated as a motion to dismiss for lack of jurisdiction. On September 24, 1999, while the appellant's motions were still pending before the federal court, she filed "Plaintiff's Motion to Reopen the Case" and "Plaintiff's Motion for Leave to File First Amended Petition" in the circuit court. In her first amended petition, the appellant sought to assert the same claims as those in her second amended federal complaint, except her § 1983 claims. The record reflects that her motions were never ruled upon.
In an order dated September 29, 1999, the federal court sustained the appellant's motion for leave to file a second amended complaint. In granting the appellant leave to amend, the court noted in its order that the appellant's motion was:
filed in the wake of the Eighth Circuit's decisions that states are immune from suit under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") . See Alsbrook v. City of Maumelle, 184 F.3d 999, 1999 WL 521709 at *5-6 (8th Cir., 1999), petition for cert. filed, (U.S. Sep. 8, 1999), (No. 99-423) (holding that Eleventh Amendment bars suits against states under Title II of the ADA); Debrose v. Nebraska, ___ F.3d ___, 1999 WL 595048 at *1 (8th Cir., 1999) (holding that Eleventh Amendment bars suits against states under Title I of the ADA).
The federal court also noted that the appellant "did not delay filing the motion in the hope of disadvantaging the Defendants, but instead filed her motion to amend shortly after Alsbrook was decided." After granting the appellant leave to amend, the federal court, in the same order, sustained her motion to remand to the state court, finding that: (1) her claims under the ADA, the Rehabilitation Act, and FMLA were barred by the Eleventh Amendment, relying on the Eighth Circuit's decisions cited, supra, and that her § 1983 claims were withdrawn; and (2) it lacked jurisdiction over the claims she asserted in her second amended complaint.
Upon remand to the state court, the MDH filed an answer to the appellant's second amended federal complaint on October 29, 1999, asserting, inter alia, several affirmative defenses, including that her claims under the ADA, Rehabilitation Act, and the FMLA were barred by sovereign immunity and that her claims under the MHRA were time barred by the statute of limitations of § 213.111.1. Although the record does not reflect that a copy of the second amended complaint was ever included in the state court file or that any amended pleadings were filed in the circuit court upon remand, on December 10, 1999, the respondents filed their motion for judgment on the pleadings, presumably with respect to the claims asserted in the appellant's second amended complaint, alleging that on the face of the pleadings, the appellant's employment discrimination claims under the ADA, Rehabilitation Act, and the FMLA were barred by sovereign immunity and her claims under the MHRA were time barred by the statute of limitations. On February 23, 2000, the appellant filed her response to the respondents' motion. On March 16, 2000, the circuit court granted the respondents' motion for judgment on the pleadings, dismissing the appellant's employment discrimination claims with prejudice. In dismissing her claims against the respondents under the ADA, the court relied on the Eighth Circuit's decision in Alsbrook .
The record does not reflect that Roberts, Walker, or Kivlahan ever filed an answer to the appellant's second amended complaint.
On April 14, 2000, the appellant filed a motion for a new trial or, in the alternative, to set aside the circuit court's judgment. The record reflects that the motion was never ruled upon; thus, under Rule 81.05(a)(2)(A), it was deemed overruled. On June 27, 2000, the appellant filed a motion for leave to file a third amended petition, which was attached. The record does not disclose that a second amended petition was ever filed. We assume that her third amended petition was denominated as such because she was purportedly seeking to amend her second amended complaint that was filed in the federal court. In her third amended petition, the appellant sought to assert the same claims as those asserted in her second amended complaint. The record indicates that the appellant's motion for leave to file a third amended petition was never ruled upon.
This appeal follows.
I.
In Points I and II, the appellant claims that the circuit court erred in dismissing on the pleadings her MHRA claims brought against the respondents as being time barred, pursuant to § 213.111.1, because the court misapplied the law by not applying: (1) the "litigation exception," tolling the statute of limitations; or (2) the "relation back doctrine," of Rule 55.33(c), relating back the filing of her MHRA claims to the filing of her ADA claim, which was timely. Because we find that our disposition of Point II renders moot the claim of error raised in Point I, we will not address that error, but will proceed instead to the claim of error raised in Point II.
Logically, before there could be a dismissal by the circuit court of the appellant's MHRA claims, subject to our review, such claims would first have to have been filed. This is so in that if no such claims were ever filed, an order of the court purportedly dismissing them would be a nullity such that there would be nothing for us to review with respect thereto. Hence, in claiming as she does in Point II, the appellant necessarily is contending that her MHRA claims were pending before the circuit court at the time they were purportedly dismissed. In apparent conflict with this contention is her claim in Point IV that the circuit court erred in failing to grant her motion for new trial or, in the alternative, to set aside the judgment, and her motion for leave to file a third amended petition, because the pleadings asserting her MHRA claims were not in the record before the court for it to review and determine their viability. The only way to harmonize these two positions of the appellant is to assume that for purposes of her claims of error in Points I and II, she is arguing that her MHRA claims existed, but for purposes of her claim of error in Point IV, they were not physically before the court for its review. In any event, because we are to determine, sua sponte, our jurisdiction, Caldwell v. Heritage House Realty, Inc . , 32 S.W.2d 773, 777 (Mo.App. 2000) (citation omitted), and because we would lack jurisdiction to review the appellant's claim of error in this point as to the circuit court's dismissal of her MHRA claims if the court did not have such claims before it to dismiss, before addressing the merits of the appellant's claim of error in Point II, we must first address and resolve this jurisdictional issue.
At the time that the appellant's cause of action was removed to the federal court by the MDH, the record reflects that the only claim that she had filed was an ADA claim against the MDH. The record further reflects that during the time the appellant's cause was pending before the federal court and after remand therefrom, the appellant never filed an MHRA claim in the circuit court, although she sought leave to do so, filing a motion for leave to amend on September 24, 1999, and June 27, 2000, neither of which was ever granted. Hence, the only way that there would have been pending before the circuit court an MHRA claim for it to dismiss as being time barred was if: (1) the appellant's second amended federal complaint properly asserted such a claim and became part of the circuit court's record upon remand, see Williams v. St. Joe Minerals Corp . , 639 S.W.2d 192, 195 (Mo.App. 1982) (stating that "[t]he state court receives the case on remand from federal court removal in the posture it is in when remanded"); or (2) the circuit court abused its discretion in failing to grant the appellant leave to assert such a claim.
As to the appellant's second amended federal complaint, there is no question that it asserted MHRA claims against the respondents. In our minds, there is also no question that it was this complaint or pleading that the circuit court was purportedly dismissing in its order of March 16, 2000, inasmuch as the court stated in its order of dismissal: "Craig did not file her MHRA claim until August 1999," the date that the second amended complaint was filed in the federal court. However, the respondents contend in their brief in Point II that the federal complaint was a nullity, ab initio, not subject to dismissal, in that the federal district court lacked jurisdiction to allow the amendment. In this regard, the respondents argue that the federal district court, at the time it allowed the appellant to amend to assert her MHRA claims against them, over which it admittedly had no independent federal jurisdiction, had exhausted its jurisdiction when it determined that the appellant's claims under the ADA, the Rehabilitation Act, and the FMLA were barred by sovereign immunity. See 28 U.S.C. § 1447(c); Nichols v. Southeast Health Plan of Ala., Inc . , 859 F. Supp. 553, 559 (S.D.Ala. 1993) (stating that "[a] federal court lacking subject matter jurisdiction [over a removed case] cannot rule on other pending motions") . Hence, a serious question arises as to whether the appellant's second amended federal complaint, as remanded to the circuit court, was a nullity, but only to the extent that it asserted MHRA claims. Thus, the only claims remaining for remand by the federal court to the circuit court would have been the ADA claims. However, we need not decide this issue in determining our jurisdiction here, inasmuch as it is clear that the circuit court abused its discretion in not allowing the appellant leave to amend her petition to assert, inter alia, MHRA claims against the respondents such that they would have been before the court for it to determine whether to dismiss them as being time barred.
The record reflects that on September 23, 1999, approximately one week before the appellant's cause was remanded back from the federal court, she filed a motion in the circuit court, pursuant to Rule 55.33(a), seeking leave to file a first amended petition, a copy of which was attached. In her proposed first amended petition, except for the absence of any § 1983 claims, she asserted the same claims as those she asserted in her second amended federal complaint, including claims under the MHRA. The record further reflects, however, that the appellant's motion of September 23 was never ruled upon by the circuit court. Upon remand, the record reflects that on October 29, 1999, the MDH filed an answer to the appellant's second amended complaint. The respondents subsequently filed their motion for judgment on the pleadings on December 10, 1999, which was sustained on March 16, 2000, the circuit court finding, with respect to the appellant's second amended federal complaint, that her claims under the ADA, the Rehabilitation Act of 1973, and the FMLA were barred by sovereign immunity, and that her claims under the MHRA were time barred. After the dismissal of her claims, the appellant filed a motion for leave to file her third amended petition, a copy of which was attached and alleged the same claims as those asserted in her proposed first amended petition, plus asserting claims under § 1983. The record reflects that this motion was also never ruled upon by the circuit court. As to this motion, we read the appellant's Point IV as claiming, in part, that the circuit court erred in dismissing her claims without first allowing her leave to amend, in an attempt to avoid dismissal.
The record does not reflect that the individual respondents ever filed an answer in the circuit court.
Pursuant to Rule 55.33(a), if a pleading cannot be amended as a matter of course, as provided in the rule, then it "may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." A circuit court is afforded broad discretion in permitting amendments to pleadings, and we will reverse only if the court's decision is clearly erroneous. Wheelehan v. Dueker , 996 S.W.2d 780, 782 (Mo.App. 1999) ( citing Lester v. Sayles , 850 S.W.2d 858 (Mo. banc 1993)) . The circuit court's decision to dismiss will be reversed if it is determined that it obviously and palpably abused its discretion in failing to allow the plaintiff to amend his or her pleading. Manzer v. Sanchez , 985 S.W.2d 936, 939 (Mo.App. 1999) (citation omitted) . In determining whether or not to reverse the court's decision, the primary focus is upon whether justice is furthered or subverted by the court's failure to grant leave to amend. Id .
When determining whether leave to amend should be granted, the circuit court should consider: "1) the reasons for the moving party's failure to include the matter in the original proceedings; 2) any prejudice to the non-moving party; and 3) hardship to the party requesting amendment if the request is denied." Wheelehan , 996 S.W.2d at 782 (citation omitted) . Here, as to the first factor, it would appear from the record that the appellant sought to amend her ADA claims, both in the circuit court and in the federal court, when it became apparent, in light of the Eighth Circuit's decision in Alsbrook , that her ADA claims were barred by sovereign immunity. Obviously, while the appellant may have been confident in her selection of the theory for recovery at the time of the filing of her original petition, as a result of an occurrence beyond her control, the legal landscape changed, making it prudent to seek an amendment of her petition to assert her employment discrimination claims under another theory or theories. While it cannot be said that the appellant was precluded from asserting her MHRA claims at the time of the filing of her original pleading in the circuit court, it is certainly understandable from the record why she did not file those claims and why she sought to subsequently amend.
As to the second factor in determining whether to grant leave to amend, the prejudice to the non-moving party, we detect little, if any, prejudice to the respondents if the circuit court had granted leave to the appellant to file an amended petition, asserting, inter alia, her MHRA claims. At the time that the appellant first sought leave to amend, no trial date had been set and the respondents had not yet filed a responsive pleading in the circuit court. In fact, as discussed, supra, the appellant filed her motion for leave to file a first amended petition more than one month prior to the filing in the circuit court of the MDH's answer to the appellant's second amended complaint. In addition, the alternative claims asserted in the appellant's proposed amended petitions all arose out of the same set of operative facts as that of her ADA claims, such that the allowance of the amendment, in our view, would not have required any significant additional discovery.
The record does not reflect whether the respondents ever filed an answer in the federal court.
As to the third factor, "hardship to the party requesting amendment if the request is denied," as we discussed, supra, it would appear from the record that the appellant sought leave to amend to assert her employment discrimination claims against the respondents under several theories other than the ADA, including the MHRA, given the likelihood that her ADA claims would be found to be barred by sovereign immunity, in the wake of Alsbrook . Of course, this raised the additional problem for the appellant that any claim under the MHRA would be time barred unless she could prevail on some exception to the bar, i.e., the amended pleadings relating back to the original filing of her ADA claim against the MDH in state court, making it essential to the appellant that her additional alternative claims be filed in the circuit court. It might be argued that this problem was resolved by the filing of the appellant's second amended complaint in the federal court and the case being remanded to the circuit court such that it is irrelevant to this discussion whether the circuit court abused its discretion in failing to grant the appellant's motion for leave to amend to assert, inter alia, her MHRA claims, at least as to her first motion for leave to amend. However, as discussed, supra, it should have been obvious at that time that there might be a problem with the federal court's jurisdiction in allowing the appellant's second amended complaint, such that, unless she was allowed to amend in state court to assert her MHRA claims, no such claims would be before the circuit court, leaving her without any basis for recovery, if and when her ADA claims were dismissed as being barred by sovereign immunity.
The procedural facts of the case at bar are substantially similar to those found in Manzer v. Sanchez , 985 S.W.2d 936 (Mo.App. 1999). There, like here, the trial court failed to rule on the plaintiffs' pending motion for leave to file an amended petition before sustaining the defendants' motion to dismiss. Id . at 938. The plaintiffs appealed the trial court's dismissal, claiming, inter alia, that the court abused its discretion in failing to rule on their pending motion for leave to amend. Id . at 939. The appellate court agreed and found that the trial court abused its discretion in denying the appellants the opportunity to amend their petition prior to dismissing their case with prejudice. Id . The appellate court noted that the respondents would not have been prejudiced by the circuit court's granting the appellant's motion to amend because it was filed prior to their filing of an answer and before a trial date was set, in addition to the fact that the proposed amendment did not allege a new cause of action. Id . at 941.
As in Manzer , under the circumstances that existed here, we believe that it was an abuse of discretion and error for the circuit court not to have granted the appellant's motion for leave to amend so as to assert her MHRA claims, as she claims in Point IV. As such, for purposes of determining our jurisdiction, sua sponte, we deem the appellant's pleadings to have been amended to assert her MHRA claims so that we have jurisdiction to review her claim of error in Point II, that the trial court erred in dismissing her claims against the respondents under the MHRA as being time barred, pursuant to § 213.111.1, because the relation back doctrine of Rule 55.33(c) applied so as to defeat the bar of the statute.
The appellant claims that for purposes of determining whether or not her MHRA claims were timely filed, the circuit court should have applied the relation back doctrine found in Rule 55.33(c), and that if it had, her claims would have properly related back to the time of the filing of her ADA claim against the MDH on December 5, 1997, such that her MHRA claims would have been deemed to have been timely filed. While the respondents do not dispute the fact that if the filing of the appellant's MHRA claims related back to the filing of her ADA claim, it would be deemed to be timely, they argue that the relation back doctrine does not apply. We disagree.
Rule 55.33(c) reads, in pertinent part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Under this rule, "[a]n amended pleading will relate back if the allegations in that pleading arose out of the same conduct, transaction or occurrence as the claim set out, or attempted to be [ sic] set out, in the original pleading." Beach v. Dir. of Revenue , 934 S.W.2d 315, 317 (Mo.App. 1996) (citation omitted) . Applying that standard here, it is clear that the appellant's MHRA claims arose out of the same conduct as her ADA claim against the MDH. In that regard, we note that the facts alleged in the appellant's initial petition as to her ADA claim and her proposed first and third amended petitions as to her MHRA claims, respectively, were nearly identical. The appellant alleged in all three petitions that in February 1994, Roberts improperly denied a request for changes in her work schedule to accommodate her disability. She also alleged that she was harassed on the job by other employees and that Roberts retaliated against her for filing an internal complaint alleging that he had discriminated against her based on her disability. Hence, pursuant to Rule 55.33(c), we find that the filing of the appellant's MHRA claims would relate back to the filing of her original petition on December 5, 1997, such that they were timely. It was, therefore, error for the trial court to dismiss the appellant's MHRA claims as being time barred by § 213.111.1.
II.
In Point III, the appellant claims that the circuit court erred in dismissing her ADA claims against the respondents as being barred by sovereign immunity because in doing so, it relied on the Eighth Circuit's holding in Alsbrook , in that the circuit court, not being bound by the decision, should have rejected it as being the minority view among the circuits that have addressed this issue. In Alsbrook , the Eighth Circuit held that Congress, in enacting the ADA, did not abrogate the sovereign immunity of the states with respect to claims brought under Title II of the act because the extension of Title II to the states was not a proper exercise of Congress's power to enforce the Equal Protection Clause of § 5 of the Fourteenth Amendment. 184 F.3d at 1010. Citing Alsbrook as the basis for its dismissal of the appellant's ADA claims, the circuit court stated: "The ADA . . . [was] not properly passed under section five of the Fourteenth Amendment. As a result, the State of Missouri and its agencies retain their normal sovereign immunity to these lawsuits." In claiming as she does, the appellant does not contend that the trial court misread Alsbrook or that her claim falls within one of the two exceptions to the state's sovereign immunity, as set forth in § 537.600.1(1), (2), nor does she articulate why the holding is legally flawed, but only asserts that it should not have been followed because it represents the minority view. In any event, the appellant's arguments with respect to Alsbrook are of no consequence given the United States Supreme Court's recent holding in Bd. of Trustees of the Univ. of Ala. v. Garrett , 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).
While this appeal was pending, the Supreme Court decided Garrett . There, the Court held that Congress, by enacting Title I of the ADA, under which the appellant asserted her claims here, did not abrogate the sovereign immunity of the states in employment discrimination actions for money damages brought under this act. 531 U.S. at ___, 121 S.Ct. at 968 n. 9, 148 L.Ed.2d at 884. In holding as it did, the Court reasoned that, because Title I of the ADA was enacted under Congress's Article I lawmaking power, and not pursuant to § 5 of the Fourteenth Amendment, and because Congress lacked authority under its Article I lawmaking power to abrogate the states' sovereign immunity, Title I claims under the ADA were still subject to being barred by sovereign immunity. 531 U.S. at ___, 121 S.Ct. at 962, 148 L.Ed.2d at 877. As we are bound by the decisions of the United States Supreme Court in interpreting federal acts, Hatfield v. Cristopher , 841 S.W.2d 761, 767 (Mo.App. 1992) ( citing Wimberly v. Labor Indus. Comm'n , 688 S.W.2d 344, 347 (Mo. banc 1985)), we find that the circuit court did not err in dismissing the appellant's ADA claims as being barred by sovereign immunity.
After submission, appellant's counsel cited to us, in support of her claim of error in this point, the recent decision of the Eighth Circuit in Gibson v. Ark. Dept. of Correction , 265 F.3d 718, 722 (8th Cir. 2001), which holds that private individuals can sue state officials for injunctive relief under the ADA by using Ex Parte Young , 209 U.S. 123 (1908). Gibson is not persuasive in that it does not address the issue presented as to whether an employment discrimination claim for money damages under the ADA is barred by sovereign immunity.
Point denied.
III.
In Point IV, the appellant claims that the circuit court erred in overruling her motion for new trial or to set aside the judgment, and her motion for leave to file a third amended petition because in dismissing her cause of action on the pleadings, the circuit court did not rely on the pleadings actually in the record. Given our disposition of the appellant's claims of error in Points II and III, supra, we need not address her claim in Point IV inasmuch as it is now moot.
Conclusion
We affirm the circuit court's judgment dismissing the appellant's employment discrimination claims under the ADA as being barred by sovereign immunity, but reverse its judgment dismissing the appellant's claims under the MHRA as being time barred, and remand the cause to the court for further proceedings consistent with this opinion.
Smart and Howard, JJ., concur.