Wicker v. Commissioner

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MAY 25, 2010 Session

DANIEL C. WICKER, II, ET AL. v. COMMISSIONER, TENNESSEE
DEPARTMENT OF REVENUE

Direct Appeal from the Chancery Court for Maury County
No. 08-888 Jim T. Hamilton, Chancellor

No. M2009-02305-COA-R9-CV - Filed June 23, 2010

Plaintiffs were assessed, and paid taxes under the Drug Tax, which was later declared
unconstitutional. Plaintiffs sought refunds individually, and on behalf of all others similarly
situated. The trial court certified the class, and the Department filed this interlocutory appeal
challenging certification. Because the Taxpayer Remedies Statute, which must be strictly
construed as a derogation of sovereign immunity, does not contemplate the maintenance of
a class action, we reverse the trial court’s grant of class certification.

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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellant,
Commissioner of Revenue, State of Tennessee

John S. Colley, III, Columbia, Tennessee, for the appellees, Daniel C. Wicker, II and Joseph
D. Williams
 OPINION

I. F ACTS & P ROCEDURAL H ISTORY

The Tennessee Department of Revenue (the “Department”) issued notices of
assessment against Daniel C. Wicker, II, and Joseph D. Williams (the “Plaintiffs”) on
September 14, 2007, pursuant to Tennessee Code Annotated section 67-4-2801, et seq.(the
“Drug Tax”), which, effective January 1, 2005, taxed “unauthorized substances and illicit
alcoholic beverages.” Both Mr. Wicker’s alleged liability of $18,649.58 and Mr. Williams’
alleged liability of $1,765.13 were collected in full.

Both Mr. Williams and Mr. Wicker filed claims for a refund of the assessed tax, which
were received by the Department on December 21, 2007 and March 3 or 4, 2008,
respectively. At that time, the Department took no action regarding the Plaintiffs’ claims.
On December 19, 2008, Plaintiffs filed a Petition, individually, and on behalf of all others
similarly situated, seeking refunds of taxes paid as well as other costs and fees.

On July 24, 2009, the Tennessee Supreme Court declared the Drug Tax
unconstitutional, as it exceeded the General Assembly’s taxing powers under the Tennessee
Constitution. Waters v. Farr, 291 S.W.3d 873, 908-13 (Tenn. 2009). Acknowledging the
Waters decision, the Department attempted to issue refund checks to Mr. Williams and Mr.
Wicker, representing the amounts paid plus interest. Moreover, the Department requested
that Plaintiffs consent to the entry of an Agreed Final Order dismissing their claims.
Although it is unclear whether Plaintiffs cashed the checks, they clearly objected to the
dismissal of their claims, and on August 28, 2009, they filed a “Motion to Certify Class.”
Over the Department’s objection, an “Order Certifying Class” was entered on November 5,
2009, which defined the class as “all taxpayers who paid all or part of their assessed tax
under the Drug Tax since its effective date of January 1, 2005, who have not been fully
refunded their paid assessment with interest, and who have not otherwise reached a formal,
final settlement of their refund under the tax.” The order required the Department to turn
over to Plaintiffs, under seal, certain information pertaining to the purported class members
by November 16, 2009, and it further required Plaintiffs to contact class members by
December 1, 2009.

The Department filed an application for permission to appeal to this Court on
November 10, 2009 pursuant to Tennessee Code Annotated section 27-1-1251 and Tennessee

1
Tennessee Code Annotated section 27-1-125 provides:

(continued...)

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Rule of Appellate Procedure 9. It subsequently sought a stay of the November 16 deadline
in the trial court. This Court entered an Order on November 16, 2009 granting a stay of the
information disclosure deadline pending resolution of the Department’s application. On
November 24, 2009, we permitted the Department to file an interlocutory appeal, and we
extended the stay pending resolution of such appeal.

II. I SSUE P RESENTED

Appellant presents the following issue for review, summarized as follows:

1. Whether a class action may be maintained in a suit seeking refunds of taxes paid
pursuant to Tennessee Code Annotated section 67-4-2801, et seq.

For the following reasons, we reverse the chancery court’s grant of class certification.

III. S TANDARD OF R EVIEW

“[T]he determination of whether an action should proceed as a class action is a matter
which is left to the sound discretion of the trial judge.” Meighan v. U.S. Sprint Commc’ns
Co., 924 S.W.2d 632, 637 (Tenn. 1996). The trial court’s decision “‘will only be modified
if it was inconsistent with the substantial weight of the evidence or resulted from the trial
court’s misinterpretation of controlling legal principles.’” Walker v. Sunrise Pontiac-GMC
Truck, Inc., 249 S.W.3d 301, 308 (Tenn. 2008) (quoting Freeman v. Blue Ridge Paper
Prod., Inc., 229 S.W.3d 694, 703 (Tenn. Ct. App. 2007)).
Under the relevant standard, where a trial court applies an incorrect
legal principle, reversal is required, even though such a reversal does not
indicate any “abuse” as that word is commonly understood. A trial court that
premises its analysis on an erroneous understanding of the governing law acts
outside its discretion. If a trial court ignores, misunderstands, or misapplies
the applicable legal principles, reversal is required under the abuse of

1
(...continued)
The court of appeals may, in its discretion, permit an appeal from an order of a trial court
granting or denying class action certification under Rule 23 of the Tennessee Rules of Civil
Procedure, if an application is filed with the clerk of the appellate court within ten (10) days
after the entry of the order. A party shall not be required to obtain permission from the trial
court to apply for an appeal under this section. In all other respects, the filing and
consideration of an application to appeal from an order granting or denying class action
certification shall be governed by Rule 9 of the Tennessee Rules of Appellate Procedure.

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 discretion standard.
....
Further, while the abuse of discretion standard implies a recognition
that a [class] certification decision is largely factual and, consequently, is due
deference, whether the trial court used a correct legal standard in making that
decision is a question of law reviewed de novo. Any conclusions of law by a
trial court that affect its decision on certification are reviewed de novo.

Gov’t Employees Ins. Co. v. Bloodworth, No. M2003-02986-COA-R10-CV, 2007 WL
1966022, at *5-6 (Tenn. Ct App. June 29, 2007) (internal citations omitted).

IV. D ISCUSSION

In this interlocutory appeal, the Department seeks review of the chancery court’s grant
of class certification pursuant to Tennessee Rule of Civil Procedure 23. The Department
alleges two principal bases for its assertion that class certification is inappropriate: 1)
Tennessee Code Annotated section 67-1-1801, et seq., the “Taxpayer Remedies for Disputed
Taxes” (hereinafter the “Taxpayer Remedies Statute”) requires taxpayers to bring individual
suits; and 2) Plaintiffs have failed to satisfy the prerequisites of Tennessee Rule of Civil
Procedure 23.

A. Sovereign Immunity

At the outset, we address the applicability of sovereign immunity in this case. “Suits
may be brought against the state in such manner and in such courts as the Legislature may
by law direct.” Tenn. Const. art. I, § 17. “In construing Art. I, § 17 [our Supreme] Court
has held that statutes which permit suits against the state under the authority of this provision
are in derogation of the state’s inherent exemption from suit and must be strictly construed.”
Beare Co. v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986) (citing State ex rel Allen v. Cook, 196
S.W.2d 858 (Tenn. 1937)). Jurisdiction under such statutes may not be enlarged by
implication. Id. (citing Hill v. Beeler, 286 S.W.wd 868 (Tenn. 1956)). “And suits for tax
refunds are actually against the State and can be maintained only in the manner and upon the
conditions consented to by the State.” Id. (citing Griffith Motors, Inc. v. King, 641 S.W.2d
200 (Tenn. 1982); Lyons v. Lay, 166 S.W.2d 778 (Tenn. 1942)).

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 B. Taxpayer Remedies Statute

The Taxpayer Remedies Statute expressly provides that “[t]he procedure established
by this part is the sole and exclusive jurisdiction for determining liability for all taxes
collected or administered by the commissioner of revenue,” with certain exceptions irrelevant
to this case. Tenn. Code Ann. § 67-1-1804. This is true of refund claims based upon
constitutional grounds. Tenn. Code Ann. § 67-1-1802(a)(1) (“The commissioner . . . is
empowered and directed to refund to taxpayers all taxes collected or administered by the
commissioner that are, on the date of payment, paid in error paid against any statute, rule,
regulation or clause of the constitution of this state or of the United States.”) (emphasis
added). Moreover, the statute provides that “[t]o the extent that the provisions of this section
conflict with any other provision of law, the provisions of this section shall control and
supersede all such laws.” Tenn. Code Ann. § 67-1-1807(c). Therefore, we must consider
whether the Taxpayer Remedies Statute authorizes a class action.

The parties disagree as to the remedies available to taxpayers under the Taxpayer
Remedies Statute. Both parties acknowledge the availability of the refund claim and the
assessment challenge:

(a)(1) In all cases in which any officer, charged by law with the authority to
assess taxes that are collected or administered by the commissioner of revenue,
shall assess a tax alleged or claimed to be due, if the taxpayer against whom
the assessment is made believes the assessment to be unjust, illegal or
incorrect, the taxpayer's remedies shall be as follows:

(A) The taxpayer may pay the tax and file a claim for refund of the tax and
proceed as provided in this part; or

(B) The taxpayer may file suit against the commissioner in chancery court in
the appropriate county in this state, challenging all or any portion of the
assessment of such tax, including any interest and penalty associated with the
tax. Until the earlier of the expiration of ninety (90) days following the mailing
of a notice of assessment to the taxpayer, or the filing of a suit by the taxpayer
as provided in subsection (b), no levy as defined in § 67-1-1404 shall be made,
begun or prosecuted by the commissioner. The commissioner may, however,
initiate and pursue any other action to collect an assessed deficiency under part
14 of this chapter or otherwise, including, but not limited to, the filing of a
notice of lien as provided in § 67-1-1403 and the collection of a jeopardy

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 assessment.

Tenn. Code Ann. § 67-1-1801.

A refund claim must be filed “within three (3) years from December 31 of the year in
which the payment was made[,]” and it “must set forth each ground upon which a refund is
claimed, the amount of such refund, the tax period, the tax type, and information reasonably
sufficient to apprise the commissioner of the general basis for the claim.” Tenn. Code Ann.
§ 67-1-1802(a)(1). Refund claims must be resolved within six months following receipt of
the claim, and if denied, a chancery court suit may be filed within one year from the date the
refund claim was filed with the commissioner. Id. at § 67-1-1802(b), (c). The second
statutory remedy, the assessment challenge, must be filed “within ninety (90) days from the
mailing of the notice of assessment.” Id. At § 67-1-1801(b)(1).

Plaintiffs contend that the statute provides a third method–67-1-1801(i) for seeking
a tax refund:

To the extent of any amounts collected by or paid to the commissioner with
respect to an assessment, or any portion of the assessment, challenged by suit
by the taxpayer, whether such collection was pursuant to a jeopardy
proceeding, by application of assets restored to the taxpayer pursuant to
subsection (h), or otherwise, the suit shall proceed as a timely suit for refund
of taxes paid, as if a timely claim for refund had been filed by the taxpayer and
denied by the commissioner.

The trial court, in its Order Certifying Class, agreed:

The Department’s complaint with the Plaintiffs’ compliance with the
taxpayer remedies statute lies in the administrative claim requirement, which
the Department insists is a prerequisite to jurisdiction for a lawsuit over the
claimed refunds sought on behalf of the proposed class members[.] The
Department overlooks T.C.A. § 67-1-1802(i), which expressly allows a
taxpayer who has paid his assessment to proceed directly to litigation for
refund of taxes paid[.] . . . The only prerequisite for proceeding straight to
litigation under T.C.A. § 67-1-1801(i) is payment of the assessment, which all
proposed Plaintiffs have done.

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Thus, according to Plaintiffs and the trial court, this third method allows a taxpayer, by
rendering payment and filing suit, to forgo the requirement of filing either a refund claim or
assessment challenge.

However, the Department contends that 67-1-1802(i) does not provide an alternate
method for seeking a refund, but that it merely “concerns the collection or payment of
amounts relating to assessments already subject to an assessment challenge suit.” According
to the Department, 67-1-1802(i) obviates the need for a taxpayer, who has filed a valid
assessment challenge and later pays money towards that assessment either voluntarily to halt
interest accrual or because of a Department levy, to go through the refund claim procedures,
as section (i) converts the assessment challenge into a refund claim to the extent of any
amounts so paid.

We concur with the Department’s statutory reading. First, it seems clear that if the
legislature had intended to set forth a third method, it would have included this method in
section (a)(1), which expressly lays out “the taxpayer's remedies[.]” Moreover, section (i)
states that “[t]o the extent of any amount collected by or paid to the commissioner with
respect to an assessment, or any portion of the assessment . . . the suit shall proceed as a
timely suit for refund of taxes paid.” Tenn. Code Ann. § 67-1-1801(i). Thus, it appears that
section (i) contemplates an existing assessment challenge rather than the initiation of a suit.
The interpretation that section (i) concerns existing assessment challenges is consistent with
the language of section 67-1-1803(b), which addresses the calculation of interest. Section
67-1-1803(b) states that when a suit proceeds as a timely filed suit for refund pursuant to
section 67-1-1801(i), and it is later determined that the taxes were wrongfully paid, a refund
is owed of the amount paid, plus interest, to be calculated “on the date of payment in the case
of any tax collected after suit was filed under § 67-1-1801.” Id. at § 67-1-1803(b) (emphasis
added). This language simply does not comport with the interpretation of both Plaintiffs and
the trial court, that section (i) authorizes a refund where a taxpayer merely renders payment
and then files suit. Finally, we reject the interpretation of Plaintiffs and the trial court, as it
would render superfluous the requirements of sections 67-1-1801, and 1802 regarding refund
claims.

We have found two methods available for challenging tax liability; however, we must
consider only whether a class action is available in a refund claim pursuant to section 67-1-
1801, as Plaintiffs seek a refund of taxes paid, rather than to challenge an assessment.

In this interlocutory appeal, the Department contends that the Taxpayer Remedies
Statute requires each taxpayer to bring suit on his or her own behalf to recover his or her own
payments and to vindicate his or her own rights. The trial court, in allowing class
certification, made the following conclusions of law:

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 The language of the taxpayer remedies statute itself, found at T.C.A. §
67-1-1801, et seq., does not preclude a class action. This court is not permitted
to read such a ban into the statute where none exists, particularly in light of the
rule of law construing the taxpayer statutes liberally in favor of the taxpayer,
and against the taxing authority. American Airlines v. Johnson, 56 S.W.3d
502, at 504 (Tenn. Crim. App. 2000), perm. app. denied ([Tenn.] 2001). To
the contrary, this court is required to construe the taxpayer remedies statute,
passed in 1986, with reference to the then-existing law, including T.R.C.P. 23,
to provide “harmonious operation of the laws.” State ex rel. Metro Gov’t v.
Spicewood Creek Watershed Dist., 848 S.W.2d 60 (Tenn. 1993). At the time
the taxpayer remedies statute was passed, T.R.C.P. 1 specifically stated that the
Rules of Civil Procedure, including Rule 23 applying class actions, “shall
govern all civil actions, whether at law or in equity...” yet the Legislature made
no effort to exempt taxpayer remedies from the application of Rule 23.

The court does not equate the Legislature’s choice of word “taxpayer”
in T.C.A. § 67-1-1801, et seq. with its use of the term “individually” in
dictating how an action may be brought under the Tennessee Consumer
Protection Act.2 The use of the singular form of a noun in a statute does not
preclude class actions under that statute, as is clear from the use of the word
“person” by Congress in 42 U.S.C. § 1983, a statute under which class actions
are commonly brought. Nor would the instant case be the first taxpayer class
action in Tennessee. Piper v. City of Memphis, 861 S.W.2d 832 (Tenn. Ct.
App. 1992) perm. app. denied ([Tenn.] 1992).3

Nor does Tennessee’s sovereign immunity preclude a class action in
this cause. While Tennessee courts have thus far declined to address a class
action under the taxpayer remedies statute, see P&P Enterprises, Inc. v.
Celauro, 733 S.W.2d 878, at 880 (Tenn. 1987), this court finds that under the

2
The Tennessee Consumer Protection Act provides:

Any person who suffers an ascertainable loss of money or property, real, personal, or mixed,
or any other article, commodity, or thing of value wherever situated, as a result of the use
or employment by another person of an unfair or deceptive act or practice declared to be
unlawful by this part, may bring an action individually to recover actual damages.
Tenn. Code Ann. § 47-18-109(a)(1) (emphasis added).
3
We note that Piper involved property taxes, which are not state taxes, and thus are not administered
by the Commissioner of Revenue, nor subject to the Taxpayer Remedies Statute. 861 S.W.2d 832 (Tenn.
Ct. App. 1992).

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 particular facts of this cause . . . a class action herein, and the claims brought
by the Plaintiffs, are fully compatible with the taxpayer remedies statute and
are in no way repugnant to Tennessee’s sovereign immunity.

On appeal, the Department cites the statutory language, itself, as evidence of class
preclusion:
(a)(1) In all cases in which any officer, charged by law with the authority to
assess taxes that are collected or administered by the commissioner of revenue,
shall assess a tax alleged or claimed to be due, if the taxpayer against whom
the assessment is made believes the assessment to be unjust, illegal or
incorrect, the taxpayer's remedies shall be as follows:

(A) The taxpayer may pay the tax and file a claim for refund of the tax and
proceed as provided in this part;

Tenn. Code Ann. § 67-1-1801 (emphasis added). However, at oral argument before this
Court, the Department conceded that the use of the singular form of a noun does not
necessarily preclude a class action under all statutes.4 Beyond the legislature’s use of “the
taxpayer,” the Department contends that a class action is incompatible with the procedures
laid out in the Taxpayer Remedies Statute. As we stated above, a taxpayer bringing a refund
claim must, “within three (3) years from December 31 of the year in which the payment was
made,” file a claim setting “forth each ground upon which a refund is claimed, the amount
of such refund, the tax period, the tax type, and information reasonably sufficient to apprise
the commissioner of the general basis for the claim.” Id. at 67-1-1802(a)(1). According to
the Department, a class action simply fails to comply with these requirements.

Citing a refund claim’s requirement that it include “information reasonably sufficient
to apprise the commissioner of the general basis for the claim,” Plaintiffs argue that the
purpose of the Taxpayer Remedies Statute is simply to put the Department on notice of the
tax liability challenged. Thus, they contend, because “the Commissioner knew - better than
anybody - at the time of the refund claims in this cause that the taxing statute had already
been declared unconstitutional, knew the number of taxpayers assessed thereunder, and knew
the amounts in question[,]” it was unnecessary for each taxpayer to comply with the statutory
requirements. The trial court agreed, stating that “the claims timely filed by both class

4
See, e.g., Meighan, 924 S.W.2d 632 (Tenn. 1996) (allowing class certification under statute then-
entitled “Action initiated by owner”).

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representatives on their own behalf and all others similarly situated, challenging the Drug
Tax on constitutional grounds, served as sufficient notice to the State’s tax collectors and
other public officials as to what portion of the collected revenues were subject to challenge.”
It also stated that “[t]o suggest that each taxpayer must file an individual claim so that the
Department could appreciate the threat posed to the Tennessee treasury ignores reality, and
only sets up unnecessary obstacles for those seeking the rightful return of their property[.]”
Further, the trial court implied that compliance with the statute’s administrative filing
requirements was unnecessary because the Department failed to take action on refunds filed
until the Waters decision was announced, and thus, individual filing was a “futile gesture[].” 5

As we stated above, because this is a suit against the state, it “may be maintained only
in the manner and upon the conditions consented to by the State.” 6 Beare Co., 711 S.W.2d
at 605 (citations omitted). Accordingly, we cannot hold that the Department’s receipt of
notice dispensed with the statute’s filing requirements. Based on the statute’s individualized
requirements that “the taxpayer against whom the assessment is made” file a refund claim
“within three (3) years from December 31 of the year in which the payment was made[,]”
“set[ting] forth each ground upon which a refund is claimed, the amount of such refund, the
tax period, [and] the tax type,” Tenn. Code Ann. §§ 67-1-1801, -1802, we find that the
Taxpayer Remedies Statute regarding refund claims simply does not contemplate
maintenance of a generalized class action. Because the trial court’s certification of the class
disregards the explicit procedures for challenging tax liabilities established by the legislature,
we reverse such certification.

5
In justifying its disregard for the administrative filing requirements, the trial court relied upon
Tennessee Code Annotated section 67-1-1802(a)(2), which authorizes the commissioner to make refunds
without the filing of a claim. Obviously, this authority is discretionary and does not render the claims
process superfluous, as the trial court seems to suggest.
6
The trial court found that the Taxpayer Remedies Statute did not preclude a class action, and that
it could not “read such a ban into the statute . . . particularly in light of the rule of law construing the taxpayer
statutes liberally in favor of the taxpayer, and against the taxing authority. (V1, 94). The trial court is
correct that “courts must construe tax statutes liberally in favor of the taxpayer and . . . strictly against the
taxing authority.” Am. Airlines, Inc. v. Johnson, 56 S.W.3d 502, 504 (Tenn. Ct. App. 2000) (citing
Memphis St. Ry. v. Crenshaw, 55 S.W.2d 758, 759 (Tenn. 1933); White v. Roden Elec. Supply Co., 536
S.W.2d 346, 348 (Tenn. 1976). “Where any doubt exists as to the meaning of a taxing statute, courts must
resolve this doubt in favor of the taxpayer.” Id. (citing Memphis Peabody Corp. v. MacFarland, 365 S.W.2d
40, 42 (Tenn. 1963); Carl Clear Coal Corp. v. Huddleston, 850 S.W.2d 140, 147 (Tenn. Ct. App. 1992))
(emphasis added); cf. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (“[S]tatutes
granting exemptions from taxation are construed strictly against the taxpayer.”) (emphasis added). However,
because the Taxpayer Remedies Statute lays out the procedures for creating a cause of action against the
state, rather than imposing a tax, we decline to construe it in favor of the taxpayer.

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 In certifying the class, the trial court gave “important consideration[]” to its belief that
denying certification would result in the “absolute absence of any remedy for the 2005
taxpayers.”7 Under the Taxpayer Remedies Statute, refund claims regarding payments made
in 2005 must have been filed by December 31, 2008–before the Drug Tax was declared
unconstitutional in July 2009. However, the trial court’s belief in the absence of a remedy
simply ignores the fact that each 2005 taxpayer had at least three years to file a refund claim.
Nothing prevented these taxpayers from filing a claim prior to the Supreme Court’s Waters
decision. In fact, by September 2007, the eastern section of this Court had declared the Drug
Tax unconstitutional, and Steven Waters, the 2005 taxpayer in the ultimately definitive
Waters Supreme Court decision, availed himself of the statutorily available remedies within
the appropriate time frame.8 “To satisfy the requirements of the Due Process Clause . . . the
State must provide taxpayers with, not only a fair opportunity to challenge the accuracy and
legal validity of their tax obligation, but also a ‘clear and certain remedy,’ for any erroneous
or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful
one.” McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep’t of Bus.
Regulation of Florida, 496 U.S. 18, 38 (1990) (internal citations omitted). The Taxpayer
Remedies Statute provided Drug Tax taxpayers with both–a generous three year period in
which to challenge liability, and a court-ordered refund of wrongfully–collected taxes.

Having determined that the Taxpayer Remedies Statute forecloses class certification,
we need not consider whether the requirements of Tennessee Rule of Civil Procedure 23
have been satisfied.

7
If a class action were allowed, the statute of limitations would be tolled by the filing of Plaintiffs’
suit on December 19, 2008.
8
Moreover, it is clear that many refund claims were filed between implementation of the tax and the
Supreme Court’s Waters decision. Depositions included in the record indicate that as of August 20, 2009,
sixty refund claims had been filed with the Department – approximately forty percent of those prior to the
Supreme Court Waters decision. In fact, Plaintiffs’ refund claims were filed prior to the Waters decision.

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 V. C ONCLUSION

For the aforementioned reasons, we reverse the chancery court’s grant of class
certification. Costs of this appeal are taxed to Appellees, Daniel C. Wicker, II, and Joseph
D. Williams, for which execution may issue if necessary.

_________________________________
ALAN E. HIGHERS, P.J., W.S.

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