Opinion
No. 2020622.
Decided December 12, 2003.
Appeal from Lee Circuit Court (CV-01-432)
On October 14, 1999, Willie McGhee lost his right arm and hand in an industrial accident that occurred while he was processing rubber through a "re-op mill" at the business premises of his employer, Uniroyal/B.F. Goodrich/Michelin North America ("Michelin"). In July 2001, after having conducted presuit discovery pursuant to Rule 27(a), Ala. R. Civ. P., in February 2000, McGhee sued the manufacturer of the "re-op mill," alleging violations of the Alabama Extended Manufacturer's Liability Doctrine, and Ed Martin, Bruce Brackett, Russell Vaughn, Paul Cagle, and Wilton Crawford (hereinafter collectively referred to as "the co-employees"), alleging that they had willfully and intentionally removed a safety device from the mill that McGhee had been working with at the time of his accident. McGhee also sued 27 fictitiously named parties pursuant to Rule 9(h), Ala. R. Civ. P.
On February 11, 2002, the trial court entered a scheduling order. That order set the case for trial for the first civil jury week of 2003, set the case for final pretrial conference on December 9, 2002, and set cutoff dates for the designation of experts, the exchange of witness lists, the filing of summary-judgment motions, and discovery. The order also stated that "[a]ll amendments including the adding of parties shall be filed within 90 days of this order." Thus, pursuant to the scheduling order, no new parties could be added after May 13, 2002.
Ninety days from February 11, 2002, is May 12, 2002, which was a Sunday; therefore, the last day to add a party would have been May 13, 2002. See Rule 6(a), Ala. R. Civ. P.
McGhee began taking depositions of the co-employees in June 2002. Two of the co-employees, Martin and Vaughn, were deposed on September 10, 2002. At Martin's deposition, he was unable to provide the name of the head of maintenance at Michelin at the time of the accident. McGhee propounded interrogatories to Martin, requesting the name of the head of maintenance, on October 16, 2002; Martin supplied the name "John Guest" in response. On November 12, 2002, McGhee filed a "Motion to Substitute Fictitious Parties," in which he requested that he be allowed to substitute Guest and three additional co-employees — Donald Williams, Curtis Coker, and Harold Chavis — for fictitiously named party number one, who is described in the complaint as "the person or persons who were employees . . . of [McGhee's] employer who had been delegated responsibility by their employer to provide [McGhee] with a safe place to work or a reasonably safe work environment." The co-employees filed a response in opposition to McGhee's motion, arguing that the deadline for adding new parties had passed six months before the filing of the motion to substitute; that McGhee had failed to demonstrate due diligence in determining the true identity of the fictitiously named parties as required by Rule 9(h); and that McGhee could not substitute four additional defendants for one fictitiously named party. After a hearing on February 21, 2003, the trial court denied McGhee's motion on February 25, 2003.
The co-employees filed a motion for a summary judgment on January 21, 2003; that motion was set for a hearing on February 21, 2003. In response to the summary-judgment motion, McGhee filed a request, pursuant to Rule 56(f), Ala. R. Civ. P., that the trial court continue the hearing on the summary-judgment motion and permit additional time for further discovery. The co-employees opposed McGhee's request. The trial court denied the continuance and, because McGhee had failed to produce any evidence indicating an issue of material fact on the liability of the co-employees, entered a summary judgment in favor of the co-employees on February 25. At the request of the co-employees, the trial court made that summary judgment final.
On March 10, 2003, McGhee filed a postjudgment motion requesting that the trial court reconsider its entry of summary judgment and the denial of his "Motion to Substitute Fictitious Parties." The trial court did not expressly rule on that motion. McGhee and the manufacturer filed a joint stipulation for dismissal on March 27, 2003; the trial court entered an order dismissing the case on March 31, 2003. On April 8, 2003, McGhee filed a notice of appeal to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala. Code 1975, § 12-2-7(6); the notice of appeal listed the February 25, 2003, summary judgment as the judgment from which he appealed. In his docketing statement, which was filed on the same date as his notice of appeal, McGhee listed as issues on appeal the propriety of both the trial court's entry of a summary judgment when discovery remained pending and the trial court's denial of his "Motion to Substitute Fictitious Parties."
Although Rule 4(a)(5), Ala. R. App. P., requires that appeals filed while a postjudgment motion is pending be held in abeyance until the motion is disposed of, it does not appear as though this court followed that rule. However, because the motion was ultimately denied by operation of law, this court's failure to comply with the rule is of no consequence in this case.
I. The Denial of the Rule 56(f) Continuance
McGhee's response to the co-employees' motion for a summary judgment was to file a motion for a continuance, pursuant to Rule 56(f), Ala. R. Civ. P., in which he alleged that he was unable to respond to the co-employees' summary-judgment motion with evidentiary materials because he had not yet completed essential discovery.
"Although the pendency of discovery does not alone bar a summary judgment, see Reeves v. Porter, 521 So.2d 963, 965 (Ala. 1988), and Hope v. Brannan, 557 So.2d 1208, 1212 (Ala. 1989), if the nonmoving party can demonstrate that the outstanding discovery is crucial to his case, then it is error for the trial court to enter a summary judgment before the discovery has been completed. Reeves, 521 So.2d at 965; Hope, 557 So.2d at 1212. To show that the discovery sought is crucial to his case, the nonmoving party should comply with Rule 56(f), which provides:
"`Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'"
Wright v. State, 757 So.2d 457, 459 (Ala.Civ.App. 2000).
In an attempt to comply with the requirements of Rule 56(f), McGhee's attorney filed an affidavit with his Rule 56(f) motion. That affidavit simply states that "persistent and diligent efforts have been made to conduct both depositions and written discovery, but . . . despite such efforts [McGhee] has been unable to conclude discovery essential to oppose the motion for summary judgment." Attachments to McGhee's motion refer to McGhee's attempt to schedule the depositions of nonparties, but those attachments offer neither an indication of what McGhee believed he would learn from this outstanding discovery nor an explanation of why the outstanding discovery was so essential to his case that he could not respond to the pending summary-judgment motion without it. The affidavit filed by the plaintiff inmate in Wright, in contrast, "stat[ed] . . . that he required certain items of evidence that he had requested but had not yet received from the State. He specifically enumerated several items of evidence he had requested in his motion for production of evidence."Wright, 757 So.2d at 459. The plaintiff inmate in Wright also indicated the reason he needed the evidence to respond to the summary-judgment motion. Id. In Wright, this court found the plaintiff inmate's Rule 56(f) affidavit sufficient under the rule to reverse the trial court's denial of the requested continuance and the entry of a summary judgment on a particular issue for the defendants. Id. at 459-60. The conclusory affidavit of McGhee's counsel, however, is not sufficient to comply with the requirements of Rule 56(f). Therefore, we conclude that the trial court properly denied the requested continuance and, because McGhee does not, and arguably could not, make any argument concerning the correctness of the summary judgment on the merits, we affirm the summary judgment for the co-employees.
II. The Denial of the "Motion to Substitute Fictitious Parties"
McGhee also argues that the trial court erred by failing to allow him to substitute John Guest, Donald Williams, Curtis Coker, and Harold Chavis for fictitiously named party number one as described in his complaint. The co-employees challenged the requested substitution on three grounds — that the attempt to substitute came well after the deadline for adding parties as set out in the trial court's scheduling order, that the attempt to substitute four new parties for one fictitiously named party was improper, and that McGhee had failed to meet the due-diligence requirement of Rule 9(h). On appeal, the co-employees also raise a question concerning our jurisdiction to consider this issue.
A. Our Jurisdiction over the Substitution Issue
The co-employees argue that this court does not have jurisdiction over the issue whether the trial court erred when it denied McGhee's "Motion to Substitute Fictitious Parties." Because McGhee's notice of appeal designates the February 25, 2003, summary judgment as the judgment from which he appeals and does not indicate that he is also appealing from the March 31, 2003, judgment dismissing the remaining claims against the manufacturer and, thus, rendering the denial of his "Motion to Substitute Fictitious Parties" final, the co-employees are technically correct. However, the Rules of Appellate Procedure "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits." Rule 1, Ala. R. App. P. In addition, our supreme court has stated that "[n]othing in the rules is designed to catch the unwary on technicalities." Edmondson v. Blakey, 341 So.2d 481, 484 (Ala. 1976).
Rule 3(c), Ala. R. App. P., requires an appellant to "designate the judgment, order or part thereof appealed from." To determine whether an appellant has complied with this rule, we must decide "whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice [of appeal]." Edmondson, 341 So.2d at 483. As noted above, the notice of appeal in this case indicates that McGhee is appealing from the February 25, 2003, summary judgment in favor of the co-employees. However, in the docketing statement filed with his notice of appeal, McGhee indicates that one of his issues on appeal relates to the denial of his "Motion to Substitute Fictitious Parties." Because the "designation of judgment or order shall not . . . limit the scope of appellate review," Rule 3(c), and because the only jurisdictional act is the timely filing of a notice of appeal, Rule 3, Committee Comments, we will consider the merits of McGhee's appeal of the denial of his "Motion to Substitute Fictitious Parties."
B. The Merits of the Substitution Issue
The parties disagree over the standard of review of the denial of McGhee's "Motion to Substitute Fictitious Parties." McGhee argues that this court must conduct a de novo review because, he argues, the denial of his motion is equivalent to the grant of a summary-judgment motion filed by a substituted party on the basis that the party making the substitution did not use due diligence in identifying the substituted party. He cites several cases in which either an appeal was taken from a summary judgment in favor of a party who had been substituted for a fictitiously named party or a petition for a writ of mandamus was filed by a substituted party seeking to direct the trial court to grant its motion for summary judgment. Crowl v. Kayo Oil Co., 848 So.2d 930 (Ala. 2002) (appeal of summary judgment in favor of substituted party); Ex parte Stover, 663 So.2d 948 (Ala. 1995) (writ of mandamus); and Ex parte FMC Corp., 599 So.2d 592 (Ala. 1992) (writ of mandamus). Naturally, those cases involved application of the standard applicable to summary judgments. However, unlike the situation presented in those cases, this case does not involve an appeal from a summary judgment in favor of Guest, Williams, Coker, and Chavis or a petition for a writ of mandamus directing the trial court to enter a summary judgment in their favor. Instead, McGhee is appealing the trial court's refusal to permit him to amend his complaint by substituting Guest, Williams, Coker, and Chavis for fictitiously named party number one. At issue, then, as the co-employees correctly point out, is whether the trial court abused its discretion by refusing to permit McGhee to substitute Guest, Williams, Coker, and Chavis for fictitiously named party number one. See Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala. 2001) ("`[T]his Court has held consistently that "the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion."'") (quoting Boros v. Baxley, 621 So.2d 240, 245 (Ala. 1993)); Modern Woodmen of America v. McElroy, 815 So.2d 520, 525 (Ala. 2001) (same).
The trial court's scheduling order set May 13, 2002, as the last date for all amendments, including those adding new parties. McGhee's "Motion to Substitute Fictitious Parties" was filed on November 12, 2002, six months after that date. The trial court denied the motion after a hearing at which the co-employees argued that McGhee had engaged in presuit discovery in February 2000 and that Michelin had produced the maintenance records on the mill on which McGhee was injured in April 2000; that McGhee had waited nearly one year after filing suit before taking the co-employees' depositions; that McGhee had never asked in any discovery, prior to a September 2002 deposition, who the head of maintenance at Michelin was, despite his having had the maintenance records in his possession for more than two years; that the accident had occurred in October 1999; and that the statute of limitations had expired in October 2001, before McGhee had taken the first deposition of any of the co-employees. Thus, the co-employees argue that the trial court did not abuse its discretion when it denied McGhee's "Motion to Substitute Fictitious Parties."
1. Analysis of the Refusal of the Proffered
Amendment Under Rule 15(a), Ala. R. Civ. P. Our supreme court recently considered the limits on a trial court's discretion to disallow an amendment under Rule 15(a), Ala. R. Civ. P. Ex parte Liberty Nat'l Life Ins. Co., [Ms. 1020057, March 14, 2003] ___ So.2d ___ (Ala. 2003).
"Rule 15(a), Ala. R. Civ. P., reflects Alabama's liberal policy in favor of allowing amendments to pleadings:
"`Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise.'
"However, the extent of the trial court's discretion in permitting amendments has not been precisely delineated and has been, at times, unclear.
"We noted in Ex parte GRE Insurance Group, 822 So.2d 388, 390 (Ala. 2001), that under Rule 15 amendments to pleadings are to be `freely allowed' unless there exists some valid reason to deny them, such as `actual prejudice or undue delay':
"`"`[R]efusal of an amendment must be based on a valid ground,'" Ex parte Bailey, 814 So.2d 867, 869 (Ala. 2001) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)) (emphasis omitted), such as "actual prejudice or undue delay." Ex parte Thomas, 628 So.2d 483, 486 (Ala. 1993).'
"However, as evidenced by the placement of the phrase `freely allowed' in the text of Rule 15, that phrase applies only to those amendments sought `more than forty-two (42) days before the first setting of the case for trial.' Rule 15, Ala. R. Civ. P. In that situation, a trial court has no discretion; it can deny a requested amendment only if there exists a `valid ground' for the denial, such as `actual prejudice or undue delay.' Ex parte GRE Ins. Group, 822 So.2d at 390. In other words, the burden is on the trial court to state a valid ground for its denial of a requested amendment.
"When, as here, the amendment is sought within the 42-day window, the trial court is free to deny a party leave to amend his or her pleading unless the party can demonstrate `good cause.' Rule 15, Ala. R. Civ. P. The language of Rule 15 makes clear that upon a showing of `good cause' a trial court is not required to allow the amendment; after such a showing allowing the amendment becomes an option the trial court can choose. Id. (' . . . and leave shall be given only upon a showing of good cause') (emphasis added). However, in light of the overarching liberal policy of allowing amendments under Rule 15, the appropriate way to view the request for leave to amend, if a party demonstrates `good cause,' is as though the request had been brought more than 42 days before trial, when the trial court does not have `unbridled discretion' to deny the leave to amend, but can do so only upon the basis of a `valid ground' as stated above. Ex parte Bailey, 814 So.2d 867, 869 (Ala. 2001).
"A comparison of the language of Rule 15 — `and leave shall be given only upon a showing of good cause' — with the alternative phrase `and leave shall be given upon a showing of good cause' demonstrates the point."
Ex parte Liberty Nat'l Life Ins. Co., ___ So.2d at ___.
Because McGhee's "Motion to Substitute Fictitious Parties" was filed more than 42 days before the first trial setting, the amendment would generally fall within the "freely allowed" portion of the rule, and, thus, the trial court would have had to have a "valid ground" for disallowing the amendment. See Rule 15(a) ("Unless a court has ordered otherwise, a party may amend a pleading without leave of court, . . . and such amendment shall be freely allowed when justice so requires.") We note, however, that the trial court in this case "ordered otherwise" in its scheduling order by limiting the time period in which the parties could file an amendment. We must therefore consider whether the trial court's scheduling order impacts the trial court's right to refuse an amendment under Rule 15(a).
The Committee Comments on 1973 Adoption of Rule 16, Ala. R. Civ. P., which governs pretrial conferences, state: "Pre-trial orders cannot be effective unless the judge has the right to disallow amendments to pleadings filed subsequent to the pre-trial hearing." See Arfor-Brynfield, Inc. v. Huntsville Mall Assocs., 479 So.2d 1146, 1149 (Ala. 1985) (upholding the disallowance of an amendment proffered at trial because "the subject matter of the proffered amendment was known to the pleader at the time of the pre-trial conference and was not then offered"). However, when first faced with a question concerning the interplay between Rules 15(a) and 16, our supreme court held that "liberal allowance of amendment when justice so requires must take precedence over strict adherence to the pre-trial order in Alabama practice." Huskey v. W.B. Goodwyn Co., 295 Ala. 1, 7, 321 So.2d 645, 648 (1975). Thus, the trial court's scheduling order does not change the fact that the trial court must have had a valid ground for refusing McGhee's amendment.
2. Analysis of Whether the Trial Court Had a Valid Ground for Refusing the Proffered Amendment
In order to determine if the trial court properly disallowed the amendment to substitute Guest, Williams, Coker, and Chavis for the fictitiously named parties, we must determine whether the trial court had a valid ground. Although the trial court's order denying McGhee's "Motion to Substitute Fictitious Parties" does not indicate the basis for the denial, the coemployees, in their response in opposition to McGhee's motion, advanced three bases for denying the motion. The first argument advanced by the co-employees — that McGhee's motion was filed six months after the date the trial court set as the last date for amendments — is, as explained above, overly simplistic and, standing alone, insufficient to form a valid reason for disallowing McGhee's amendment. The best argument advanced in support of the trial court's disallowance of McGhee's amendment is that he failed to meet the due-diligence requirement of Rule 9(h).
"Alabama's fictitious party practice is controlled by Rule 9(h), Ala. R. Civ. P., which provides:
"`When a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.'"
Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996). Under Rule 15(c)(4), an amendment relates back when "relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)." Our supreme court has explained that "[t]o invoke the relation-back principles of Rule 9(h) and 15(c)[(4)], the plaintiff (1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued." Crawford, 678 So.2d at 1059 (citing Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d 955 (Ala. 1983)). In addition, the amendment will relate back only if the plaintiff "`used due diligence in attempting to discover [the true identity of the fictitiously named party].'" Crowl v. Kayo Oil Co., 848 So.2d 930, 937 (Ala. 2002) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala. 1995)).
The basis for the due-diligence requirement has been explained as follows:
"The diligent plaintiff who is truly ignorant of the defendant's identity at the time of filing the original complaint is not penalized. The recalcitrant plaintiff cannot, however, use the rule to gain what might otherwise amount to an open-ended statute of limitations."
Kinard v. C.A. Kelly Co., 468 So.2d 133, 135 (Ala. 1985). "Fictitious party practice should not be abused, and it was not intended for use whenever it is merely inconvenient for the plaintiff to learn the name of the true defendant." Bowen v. Cummings, 517 So.2d 617, 618 (Ala. 1987). Several cases have considered whether a plaintiff's actions in ascertaining the true identity of fictitiously named parties met the due-diligence requirement of Rule 9(h). See, e.g., Crowl, 848 So.2d at 931-41; Crawford v. Sundback, 678 So.2d 1057 (Ala. 1996); Ex parte Stover, 663 So.2d 948 (Ala. 1995); Ex parte Klemawesch, 549 So.2d 62 (Ala. 1989); Bowen v. Cummings, 517 So.2d at 618; and Kinard, 468 So.2d at 134-36.
In Kinard the plaintiff, who was injured when she fell on the premises of an apartment complex, instituted suit in August 1980. Kinard, 468 So.2d at 136. She failed to conduct discovery aimed at determining who the owners of the apartment complex were until January 1983. Id. The supreme court determined that she had not acted "reasonably in waiting for that length of time before attempting to determine the defendants' identities." Id.
In Bowen, the plaintiff, who was allegedly injured in April 1983 by an emergency-room physician's malpractice, had filed suit in April 1985 and sought to amend his complaint to substitute another physician only a few months later, in October 1985. Bowen, 517 So.2d at 617-18. In affirming a trial court's grant of the substituted physician's motion to dismiss, the supreme court determined that the plaintiff had not been diligent in determining the true identity of the fictitiously named party. Id. at 618. According to the court, the plaintiff, before filing suit, had attempted once to get copies of his hospital records and failed; he made no further attempts. Id. In addition, the court commented that, even after filing suit, the plaintiff's attorney had never attempted to discover the records. Id. The court stated:
"Rule 9(h) was not meant to allow a party to sit back for almost two years and make only one attempt at learning the defendant's name, and then, failing, simply to list fictitious defendants. This would work a substantial injustice to the defendant and would violate the purpose behind our discovery statutes and our statutes of limitation.
"Plaintiff not having complied with the spirit or letter of Rule 9(h) . . ., his complaint against [the physician] was properly dismissed."
Id.
Likewise, in Ex parte Klemawesch, the plaintiff "did not proceed in a reasonably diligent manner in order to ascertain the identity of the attending physician," who she alleged had committed medical malpractice and thereby caused her mother's death. Ex parte Klemawesch, 549 So.2d at 64. Although the plaintiff filed suit in June 1985, she did not file a single interrogatory and did not initiate any discovery until October 1987, over two years later. Id. Her amendment was filed on January 31, 1989. Id. at 63. The plaintiff argued that she was "unaware of any question as to the identity of the attending physician at the time of her mother's treatment and death," and that, she said, she learned the name of the attending physician at a deposition of one of the named physicians. Id. at 64. However, the supreme court noted that the plaintiff had been aware that there was a question about the identity of the attending physician quite possibly since before filing suit, as there was an unidentified signature in the medical records she obtained, and at least since December 1986, when one of the named physicians had moved for summary judgment and proffered his own affidavit in which he "unequivocally stated that he was not on duty at the time of [the plaintiff's mother's] treatment and death." Id. at 65. The supreme court concluded that the plaintiff's actions were "unreasonable" and issued a writ of mandamus compelling the trial court to dismiss the physician from the action. Id.
In their response in opposition to McGhee's "Motion to Substitute Fictitious Parties" and at the hearing on the motion, the co-employees asserted that McGhee's attorney had in his possession, since April 2000, maintenance records on the mill that injured McGhee. Although they did not state that those records contained the names of Guest, Williams, Coker, and Chavis, they did indicate that, despite having these records since 2000, McGhee's attorney had failed to request via interrogatories the name of the custodian of the records or the name of the head of maintenance. Instead, despite conducting presuit discovery in 2000, McGhee waited to depose the co-employees until June 2002, nearly one year after instituting the suit. When he finally asked for the name of the head of maintenance, in a September 2002 deposition, the suit had been pending for 14 months and discovery had begun 31 months earlier in February 2000.
We cannot say that the length of time that elapsed before McGhee attempted to substitute the parties is any less "unreasonable" than the length of time that elapsed in Ex parte Klemawesch, Bowen, and Kinard. In the three years following his injury, McGhee failed to discover the true identities of his own co-employees. The inescapable conclusion is that McGhee failed to use due diligence to ascertain the true identities of the fictitiously named parties identified in his complaint. Accordingly, the trial court had a valid ground upon which to refuse McGhee's amendment.
III. Conclusion
Because the affidavit in support of McGhee's Rule 56(f) motion failed to specify and explain the necessity of the outstanding discovery, the trial court properly denied the requested continuance of the co-employees' summary-judgment motion. In addition, because McGhee does not, and cannot, challenge the merits of the trial court's summary judgment in favor of the co-employees, the summary judgment is affirmed. Finally, the trial court did not abuse its discretion by refusing to allow McGhee to amend his complaint to substitute Guest, Williams, Coker, and Chavis for fictitiously named party number one as described in his complaint because the co-employees presented a valid ground for that refusal — namely, that McGhee had not used due diligence in attempting to discover the true identities of fictitiously named party number one. Accordingly, we affirm all aspects of the judgments from which McGhee appeals.
AFFIRMED.
Yates, P.J., and Thompson, Pittman, and Murdock, JJ., concur.