concurring in result:
I would reverse the summary judgment and remand to the trial court because I believe there are fact questions concerning the application of § 209 of this case. Although I do not find myself in disagreement with the majority on the questions of the constitutionality of § 209, I would not reach that issue because it was not raised in the Motion for New Trial, and we have no record of the arguments made at the hearing on the Motion for New Trial.