While I agree with the majority's treatment of appellant's first assignment of error, I write separately to note that I concur in judgment only with respect to appellant's second assignment of error. As a result of our resolution reversing the trial court's judgment and remanding this matter for retrial, the second assignment of error, as a practical matter, is rendered moot.
Specifically, as noted, appellee's attorney testified at the first trial on behalf of appellee. He may not now act as appellee's counsel at the subsequent retrial of this matter. Therefore, I do not choose to render an opinion on the merits of appellant's second claimed error, and I would dismiss that appeal as moot. *Page 795