In Re Estate of Bill Morris

11/13/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 16, 2017 Session

IN RE ESTATE OF BILL MORRIS

Appeal from the Chancery Court for Franklin County
No. 19721 Jeffrey F. Stewart, Judge
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No. M2016-02557-COA-R3-CV
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This is an appeal from the trial court’s denial of Appellants’ motion pursuant to
Tennessee Rule of Civil Procedure 60.02. In In re Estate of Morris, No. M2014-00874-
COA-R3-CV, 2015 WL 557970, (Tenn. Ct. App. Feb. 9, 2015), perm. app. denied (Tenn.
June 15, 2015) (Morris I), this Court held that Decedent’s will was invalid for failing to
comply with the statutory formalities for executing a will. Following the Supreme
Court’s denial of certiorari, the parties entered into an agreed order declaring the will
invalid and agreeing to administer the Decedent’s estate as an intestate estate. After our
decision in Morris I and entry of the agreed order, the legislature amended Tennessee
Code Annotated section 32-1-104 to validate wills executed in the manner of the will at
issue here. Relying on this amendment, Proponents of the will filed a Rule 60.02 motion
asserting that "it is no longer equitable that the [agreed final judgment] should have
prospective effect and relief from the operation is justified.” The trial court denied Rule
60.02 relief and proponents of the will appeal. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and BRANDON O. GIBSON, JJ., joined.

Donald Capparella and Tyler Chance Yarbro, Nashville, Tennessee, for the appellants,
Gary Lee Morris and Pamela Jean Morris.

Eddy R. Smith and Katie Tolliver Jones, Knoxville, Tennessee, for the appellees, Estate
of Bill Morris, Deceased, Bill Morris, Jr., and Cheryl Morris.

OPINION
 I. Background

This is the second appeal of this case. In In re Estate of Morris, No. M2014-
00874-COA-R3-CV, 2015 WL 557970, at *4 (Tenn. Ct. App. Feb. 9, 2015), perm. app.
denied (Tenn. June 15, 2015) (Morris I), we held that the signatures of the witnesses on
an affidavit, but not on the will, did not satisfy the statutory formalities for the valid
execution of a will. Morris I at *4. Consequently, we concluded that the Decedent died
intestate. Id. After the Tennessee Supreme Court denied certiorari, the parties entered an
agreed final judgment on October 13, 2015. The agreed final judgment states that the
“putative will of Bill Morris is not a will and Bill Morris died intestate.” The judgment
goes on to state that “[u]pon entry of this final judgment, the probate of the estate of Bill
Morris shall commence immediately. . .” and defines the terms of the estate’s
administration.

After Morris I was decided, in April 2016, the legislature added subsection (b) to
Tennessee Code Annotated section 32-1-104. This statutory amendment allows the
integration of the attestation affidavit to the will itself such that wills not otherwise
validly executed under the prior law may be entered into probate. The new section of the
statute reads as follows:

(b)(1) For wills executed prior to July 1, 2016, to the extent necessary for
the will to be validly executed, witness signatures affixed to an affidavit
meeting the requirements of § 32-2-110 shall be considered signatures to
the will, provided that:
(A) The signatures are made at the same time as the testator signs the will
and are made in accordance with subsection (a); and
(B) The affidavit contains language meeting all the requirements of
subsection (a).
(2) If the witnesses signed the affidavit on the same day that the testator
signed the will, it shall be presumed that the witnesses and the testator
signed at the same time, unless rebutted by clear and convincing evidence.
If, pursuant to this subsection (b), witness signatures on the affidavit are
treated as signatures on the will, the affidavit shall not also serve as a self-
proving affidavit under § 32-2-110. Nothing in this subsection (b) shall
affect, eliminate, or relax the requirement in subsection (a) that the testator
sign the will.

Tenn. Code Ann. § 32-1-104(b).

On May 13, 2016, proponents of the will, Pamela Morris and Gary Morris
(together “Appellants”), filed a motion pursuant to Tennessee Rule of Civil Procedure
60.02 (4) and (5) in the trial court. Appellants asserted that “it is no longer equitable that
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the October 13, 2015 order should have prospective effect and relief from the operation
of the judgment is justified.” On August 22, 2016, Bill Morris, Jr. and Cheryl Morris
(together “Appellees”), filed a response to Appellants’ Rule 60 motion and an
accompanying memorandum. Appellees argued that a change in the law is not generally
a basis for relief under Rule 60 and that an intervening change in the law does not exempt
parties from the doctrines of res judicata. Appellees also argued that the separation of
powers doctrine prevents the legislature from changing the law to alter the result of a
final judgment. After a hearing, the trial court entered an order denying Appellants’ Rule
60.02 motion on October 13, 2016. Appellants appeal.

II. Issues

Appellants raise three issues for review as stated in their brief:

1. Whether Tenn. R. Civ. P. 60.02(4) or (5) applies to grant relief from
the final judgment declaring that Decedent died intestate, when
subsequent legislation make it inequitable and unjust to not allow
Decedent’s will to be probated?

2. Whether the doctrines of res judicata or separation of powers apply
to bar the application of Rule 60.02(4) or (5), when such doctrines
have no application to relief sought under Tenn. R. Civ. P. 60.02.

3. Whether Appellees have waived any claim that Rule 60.02 relief
sought in this case is unconstitutional by failing to give notice to the
Tennessee Attorney General as required under Tenn. R. Civ. P.
24.04?

Appellees contend that Appellants’ appeal is frivolous and request an award of
attorneys’ fees and costs on appeal.

III. Standard of Review

Generally, we review the trial court’s decision to grant a Rule 60.02 motion under
the abuse of discretion standard. Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624
(Tenn. 2000); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). In
Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001), our Supreme Court discussed the
abuse of discretion standard, stating:

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 Under the abuse of discretion standard, a trial court’s ruling “will be upheld
so long as reasonable minds can disagree as to propriety of the decision
made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland,
22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its discretion only
when it “applie[s] an incorrect legal standard, or reache[s] a decision which
is against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The
abuse of discretion standard does not permit the appellate court to substitute
its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998).

Eldridge, 42 S.W.3d at 85. Appellate courts ordinarily permit discretionary decisions to
stand even though reasonable judicial minds can differ concerning their soundness.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). When reviewing
a discretionary decision by the trial court, the “appellate courts should begin with the
presumption that the decision is correct and should review the evidence in the light most
favorable to the decision.” Silliman v. City of Memphis, 449 S.W.3d 440, 447-48 (Tenn.
Ct. App. 2014)(citations omitted).

Although we review the trial court’s overall decision to grant Rule 60.02 relief
under the abuse of discretion standard, this case involves the proper interpretation of a
statute, which is a question of law. Consequently, we review the trial court’s
interpretation of Tennessee Code Annotated Section 32-1-104(b) de novo, with no
presumption of correctness. See Pickard v. Tennessee Water Quality Control Bd., 424
S.W.3d 511, 518 (Tenn. 2013) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
308 (Tenn. 2012)); see also Silliman, 449 S.W.3d at 455.

IV. Analysis

A. Tennessee Rule of Civil Procedure 60.02

As is relevant to this appeal, a trial court may relieve a party from a final judgment if
“a prior judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that a judgment should have prospective application” or “any other
reason justifying relief from the operation of the judgment.” Tenn. R. Civ. P. 60.02(4)
and (5). The trial court’s order denying Appellants’ Rule 60 motion states, in pertinent
part:
2. No parties appealed the Agreed Final Judgment or filed a petition to
rehear, reconsider, set aside, alter or amend the Agreed Final
Judgment.

***

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 5. Movants’ sole basis for their motion was the subsequent legislation.
Movants allege no new or additional facts.

6. The parties’ previous litigation already determined their rights under
the applicable law and settled their claims in this matter.

Therefore, the Court finds the movants have failed to meet their burden
under Rule 60 to set aside the final agreed order in this case . . . .

The burden of proof under Rule 60.02 is on the party seeking relief, and “the burden
borne by the movant is heavy.” Johnson v. Johnson, 37 S.W. 3d 892, 895 n. 2 (Tenn.
2001). The Tennessee Supreme Court has described the high threshold for relief pursuant
to Rule 60.02:

[W]e have characterized relief under Rule 60.02 as an “exceptional
remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992),
“designed to strike a proper balance between the competing principles of
finality and justice,” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
1976). Rule 60.02 provides an “escape valve,” Thompson v. Firemen’s
Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be
easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).
We have reversed relief granted under Rule 60.02 where the judgment was
“not oppressive or onerous.” Killion v. Tenn. Dep’t of Human Servs., 845
S.W.2d 212, 214 (Tenn. 1992). “[R]elief under Rule 60.02 is not meant to
be used in every case in which the circumstances of a party change after the
entry of a judgment or order, nor by a party who is merely dissatisfied with
a particular outcome.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 336
(Tenn. 2010).

Furlough v. Spherion Atlantic Workforce, L.L.C., 397 S.W.3d 114, 127-28 (Tenn.
2013).

Based on the addition of subsection (b) to Tennessee Code Annotated section 32-
1-104, Appellants argue that “it is no longer equitable that the [Agreed Final Judgment]
should have prospective effect.” In support of this argument, Appellants cite White v.
Armstrong, wherein this Court adopted the federal standard for determining whether a
judgment has prospective application. The White case is one of several Tennessee cases
in which men, who voluntarily acknowledged paternity of a child, subsequently filed
Rule 60.02 motions alleging that they were not the biological father of the child for which
they acknowledged paternity. The outcome in each of these cases turned on the
particular facts presented. There is no bright-line rule in which every father who has
voluntarily acknowledged paternity and who is later proved not to be the child’s
biological father may be relieved from the parental obligation he previously undertook.
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Richards v. Read, No. 01A01-9708-PB00450, 1999 WL 820823 at *12 (Tenn. Ct. App.
July 27, 1999) (no perm. app. filed ) (Cottrell, J, concurring). Rather, the determination
of whether Rule 60.02 relief is appropriate depends on a weighing of the equities of the
case. State Dep’t of Human Servs. ex rel. Ellis v. Humes, No. W2004-00602-COA-
R3JV, 2005 WL 562753, at *3 (Tenn. Ct. App. Mar. 10, 2005). “[T]he gravamen of Rule
60.02(4) relief in these types of cases lies in equity.” Welch v. Welch, 195 S.W.3d 72,
75-76 (Tenn. Ct. App. 2005) (quoting Ellis, 2005 WL 562753 *4). As we cautioned in
White, Rule 60 relief “should not be granted without analyzing the burdens that granting
relief or failing to grant relief will place on all who have an interest in the proceeding.”
White 1999 WL 33085, at *5. Consequently, “[a] change in the law will not always
provide the truly extraordinary circumstances necessary to reopen a case.” Ritter v.
Smith, 811 F.2d 1398, 1401 (11th Cir. 1987).

The instant case is readily distinguishable from the line of child support cases on
which Appellants rely. In a child support case, the issuing court retains jurisdiction over
the order to modify it in the event of a change in circumstances or to impose sanctions for
failure to pay. White 1999 WL 33085, at *4. Therefore, the trial court has the power to
modify or vacate its child support orders if it determines that it is no longer equitable that
the orders have prospective effect. Here, unlike the White line of cases, the final
judgment is not subject to ongoing modification pursuant to statute, and the trial court did
not retain the authority to modify the final order finding that Bill Morris died intestate.

Nonetheless, Appellants argue that the agreed final order has prospective effect
because the administration of the estate has not been completed. Appellants cite Twelve
John Does v. District of Columbia, 841 F.2d 1133, 1139 (7th Cir. 1988) to support their
position that Rule 60 relief is warranted when the decrees “involve the supervision of
changing conduct or conditions.” Id. However, the question at issue in Twelve John
Does was whether an order of dismissal had prospective application. In that case,
appellees argued that any order that precludes relitigation of a claim has “prospective
application” for that reason alone. In rejecting this argument, the 7th Circuit Court of
Appeals concluded that, under appellees’ reasoning, “any final order or judgment on the
merits could potentially be reopened under Rule 60(b), which is plainly inconsistent with
the requirement of prospective application . . . .” Id. at 1140. In the present case, no
issues remain unresolved as to the execution of the will. This Court concluded and the
the parties later agreed that Bill Morris’s will was not properly executed and that he died
intestate. The intestate administration by the probate court that follows is separate and
apart from the will contest. Pursuant to the final agreed order, Appellants are responsible
for filing the inventory of assets and accounting of income and expenses, as well as
documenting any conveyances or transfers regarding Decedent’s estate. Appellant’s
unilateral inaction in delaying the required inventory and accounting does not support the
argument that the will contest is modifiable because the estate remains open.
Furthermore, “to allow a party to escape a consent judgment based on its own voluntary
actions strikes us as unjustified.” Northridge Church v. Charter Twp. of Plymouth, 647
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F.3d 606, 618 (6th Cir. 2011). Accordingly, we conclude that the Appellants are not
entitled to relief under Rule 60.02(4).

Appellants also seek relief under Rule 60.02(5). In Holiday v. Shoney’s South,
Inc., 42 S.W. 3d 90, 94 (Tenn. Ct. App. 2000), we held that “Rule 60.02(5) affords relief
in the most extreme, unique, exceptional, or extraordinary cases and generally applies
only to circumstances other than those contemplated in sections (1) through (4) of Rule
60.02.” Id. Appellants have not demonstrated any extraordinary circumstances, nor do
they specify any facts differentiating their argument for relief under Rule 60.02(4) from
their argument for relief under Rule 60.02(5). As such, there is no basis to conclude that
the trial court abused its discretion in denying Appellants’ motion under Rule 60.02(5).

B. Res Judicata and Separation of Powers

Appellants argue that the doctrine of res judicata is not applicable to Rule 60.02
proceedings. Appellees, on the other hand, contend that an intervening change in the law
does not exempt parties from the doctrine of res judicata. The trial court determined that
the “doctrines of res judicata and the constitutional separation of power argument prevail
in this case.” The Tennessee Supreme Court has explained the doctrine of res judicata as
follows:

The policy rationale in support of res judicata is not based upon any
presumption that the final judgment was right or just. Rather, it is
justifiable on the broad grounds of public policy which requires an eventual
end to litigation. Akin to statutes of limitations, the doctrine of res judicata
is a “rule of rest” and “private peace.”

Moulton v. Ford Motor Co., 533 S.W. 2d 295, 296 (Tenn. 1976). In Moulton, the
appellants argued that they should benefit from a subsequent change in Tennessee case
law after a final ruling in their initial case. Id. The general rule is that a change in the
law occurring after a final judgment ordinarily does not create an exception to the
application of the doctrine of res judicata or claim preclusion. Id. at 297. Accordingly,
the enactment of a new statute after the previous litigation has been concluded will
ordinarily not provide a basis for relitigating the same dispute. Jackson v. Smith, 387
S.W.3d 486, 94 (Tenn. 2012) (internal citations omitted).

Appellants argue that there is a universal rule that bars the application of res
judicata to Rule 60.02 proceedings and cite Richards v. Read, No. 01A01-9708-PB-
00450, 1999 WL 820823, at *11 (Tenn. Ct. App. July 27, 1999), and Safe Flight
Instrument Corp. v. United Control Corp., 576 F.2d 1340, 1344 (9th Cir. 1978) in
support of their position. However, we disagree that these cases propose a “universal
rule” precluding application of the res judicata doctrine from Rule 60.02 proceedings.
Rather Richards and Safe Flight reiterate the general rule that the doctrine of res
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judicata is not applicable to the “prospective features of a decree that involve the
supervision of changing conduct or conditions and are thus provisional and tentative.”
Richards, 1999 WL 820823, at *11 (quoting Safe Flight, 576 F.2d at 1344). Appellant’s
argument that Rule 60.02 bars the applications of res judicata is not persuasive here, as
this case does not involve the supervision of changing conduct or conditions.

Although the will contest in Morris I would have a different outcome if it had
been initially heard after the enactment of Tennessee Code Annotated section 32-1-
104(b), courts have declined to recognize a broad “general fairness” exception to the
doctrine of res judicata when there is a subsequent change in the law. Jackson, 387
S.W.3d 486, 493. On rare occasions, courts have recognized exceptions to the doctrine
of res judicata following a change in the law. In Jackson, the Tennessee Supreme Court
reminds us that a second action is permitted based on a new statute “when a new statute
provides an independent basis for relief which did not exist at the time of the prior
action.” Id.; see also State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn. Ct.
App. 2000) (permitting a second lawsuit after the first lawsuit had been dismissed for
lack of standing). The courts have also relaxed the res judicata doctrine when a party has
been deprived of a fair opportunity to litigate its claim. Id.; see also Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 481 n. 22, 102 S. Ct. 1883, 72 L.Ed.2d 262 (1982).

Concerning the separation of powers argument, the Tennessee Constitution states
that “no retrospective law, or law impairing the obligations of contracts, shall be made.”
Tenn. Const. art. I, § 20. In Jackson v. Smith, the trial court initially denied
grandmother’s petition for visitation with her granddaughter, whose mother had died.
After the decision became final, the Tennessee General Assembly amended the burden of
persuasion in the grandparental visitation statute by creating a new rebuttable
presumption that a child whose parent dies will be substantially harmed by the cessation
of an existing relationship with a grandparent who is the parent of the deceased parent.
Without alleging new facts and relying solely on the change in the statutory burden of
persuasion, the grandmother filed a second petition in the trial court seeking visitation
with her granddaughter. Jackson, 387 S.W.3d 486, 489 (Tenn. 2012). The Tennessee
Supreme Court concluded that the intervening change in the grandparents’ visitation
statute, without a material change in the facts, does not provide an exception to the
operation of res judicata. Id. In Jackson, Justice Koch explained the separation of
powers in regard to the judiciary as follows:

The power to fully and finally adjudicate cases and controversies is
constitutionally assigned to the judiciary of this state, and the Tennessee
General Assembly may not interfere with the adjudicative functions of the
courts. Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006)
(quoting Underwood v. State, 529 S.W.2d 45, 47 (Tenn.1975)).

The courts must decide the cases brought before them based on the law
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 existing at the time of their decisions and on the facts presented to them.
Perkins v. Scales, 2 Tenn. Cas. (Shannon) 235, 236-37 (1877); Tate’s
Ex’rs. v. Bell, 12 Tenn. (4 Yer.) 202, 206-07 (1833). Litigants have a
vested interest in a court’s judgment once it becomes final. Accordingly,
acts of the Tennessee General Assembly are construed to operate
prospectively in order to avoid being found to be retrospective and
therefore proscribed by Article I, Section 20 of the Constitution of
Tennessee.

A final judgment is the judiciary’s last word in a particular case. Thus, as
the United States Supreme Court has held, “[h]aving achieved finality, ... a
judicial decision becomes the last word of the judicial department with
regard to a particular case or controversy, and Congress may not declare by
retroactive legislation that the law applicable to that very case was
something other than what the courts said it was.” Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 227, 115 S. Ct. 1447, 131 L.Ed.2d 328 (1995).
We have an obligation to interpret statutes in a way that preserves their
constitutionality. Jordan v. Knox Cnty., 213 S.W.3d 751, 780-81 (Tenn.
2007). Accordingly, we decline to interpret Tenn. Code Ann. § 36-6-
306(b)(4) in a way that places it on a collision course with Article I, Section
20.

Jackson, 387 S.W.3d 486, 494-95 (Tenn. 2012)

The 2013 will contest in this case was fully and fairly litigated in accordance with
the law as it existed at that time. Following a full evidentiary hearing, the trial court
determined that Mr. Morris’s will was validly executed. On appeal, this Court concluded
that the will was not properly executed due to the lack of signatures on the will pursuant
to the requirements of Tennessee Code Annotated section 32-1-104 existing at the time
Mr. Morris’s will was probated. The Tennessee Supreme Court denied certiorari by
order entered June 15, 2015, and the parties entered an agreed final judgment conceding
the will contest on October 13, 2015. Under these facts, we decline to interpret
Tennessee Code Annotated section 32-1-104(b) to permit Appellants to relitigate the will
contest on the basis that the applicable law was amended after the foregoing procedure
occurred.

C. Constitutional Challenge

In re Estate of Veronica Stewart, No. M2016-02355-COA-R3-CV discusses the
constitutionality of Tennessee Code Annotated section 32-1-104(b) at length. The facts
of the will contest in Stewart are substantially similar to those at issue in this case. The
witnesses to the decedent’s will in Stewart signed the attestation affidavit but failed to
affix their signatures to the will itself. Decedent’s father who was an heir-at-law but not
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a beneficiary under the will argued that the retroactive application of the amended statute
was unconstitutional because it interfered with his vested rights as an heir-at-law. Id.
Ultimately, this Court held that the statute as amended did not impair Mr. Stewart’s
vested rights and may therefore be applied retroactively without violating Article I, §20
of the Tennessee Constitution. Id. Here, Appellants allege that Appellees have waived
any claim that Rule 60.02 relief sought in this case is unconstitutional by failing to give
notice to the Tennessee Attorney General as required under Tenn. R. Civ. P. 24.04. Rule
24.04 of the Tennessee Rules of Civil Procedure states that “when the validity of a statute
…is drawn in question in any action to which the State or an officer or agency is not a
party, the court shall require that notice be given to the Attorney General, specifying the
pertinent statute, rule or regulation.” However, Appellees are not questioning the validity
of Tennessee Code Annotated section 32-1-104(b) or its retroactive application to certain
wills; rather, Appellees argue that the retroactive application of the statute, as argued by
Appellants, is constitutionally impermissible here because the will contest was concluded
by final judgment before the statute’s enactment. Importantly, the will contest in Stewart
was heard after enactment of the 2016 amendment to Tennessee Code Annotated section
32-1-104(b). Accordingly, Appellants’ waiver argument fails.

D. Attorneys’ Fees

Appellees request an award of attorneys’ fees and costs on appeal. Tennessee
Code Annotated section 27-1-122 states that:

When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.

Tenn. Code Ann. § 27-1-122. “In considering a request for attorney’s fees on appeal, we
consider the requesting party’s ability to pay such fees, the requesting party’s success on
appeal, whether the appeal was taken in good faith, and any other equitable factors
relevant in a given case.” Moran v. Wilensky, 339 S.W.3d 651, 666 (Tenn. Ct. App.
2010)(citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). However,
the statute must be interpreted and applied strictly so as not to discourage legitimate
appeals. Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). From our review
of the entire record, we cannot conclude that this appeal was frivolous or taken solely for
delay. Accordingly, we deny Appellees’ request for appellate fees and costs.

V. Conclusion

For the foregoing reasons, we affirm the order of the trial court. We remand the
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case for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against Appellants, Gary Lee Morris, and
Pamela Jean Morris, and their surety, for all of which execution may issue if necessary.

_________________________________
KENNY ARMSTRONG, JUDGE

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