Bruce R. Hotze v. Bill White, Mayor and City of Houston

Opinion issued April 15, 2010.

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00016-CV

____________

BRUCE R. HOTZE, Appellant

V.

BILL WHITE, MAYOR; CITY OF HOUSTON, Appellees

On Appeal from the 133rd District Court

Harris County , Texas

Trial Court Cause No. 2006-70981

MEMORANDUM OPINION

The

appellant, Bruce R. Hotze, appeals from a final judgment dismissing his lawsuit

against appellees, the City of Houston and Mayor Bill White (collectively, “the

City”) and requesting a declaration that two propositions, Proposition G and

Proposition H, are invalid as a matter of law.

We reverse the trial court’s final judgment and remand for further

proceedings consistent with this opinion.

Background

A.

Prior Litigation: Propositions 1

and 2

The

instant litigation has its roots in two amendments to the Houston City Charter,

Propositions 1 and 2, which were before voters in November 2004, and which

remain the subject of litigation between the parties. See White v. Robinson , 260 S.W.3d 463,

466 (Tex. App.—Houston

[14th Dist.] 2008, pet. granted).

Proposition 1 was placed on the ballot pursuant to the City’s own

motion. Id . Proposition 1 pertained to “Limits on Annual

Increases in City Property Taxes and Utility Rates.” Id . Proposition 1 granted the City “full

authority to assess and collect any and all revenues of the city without

limitation, except as to ad valorem taxes and water and sewer rates.” Id . Proposition 1 imposed a limit on ad valorem

taxes and water and sewer rates by requiring that the City Council obtain voter

approval before increasing (1) property tax revenues “above a limit measured by

the lesser of 4.5% or the cumulative combined rates of inflation and population

growth,” or (2) water and sewer rates above the “cumulative combined rates of

inflation and population growth.” Id . In contrast, Proposition 2 resulted from a

citizen-initiated referendum petition and concerned “Limits on All Combined

City Revenues.” Id .

Proposition 2 was supported by Hotze and others and would have capped

total revenue by requiring voter approval before the City may increase total

revenues from all sources by more than the combined rates of inflation and

population. Id .

On

the November 2004 ballot, the electorate was allowed to vote for or against

each proposition. Id .

Proposition 1 and Proposition 2 each passed with a majority of the votes

cast on the particular proposition.

Proposition 1 received more favorable votes than Proposition 2. Id .

at 467; Tex. Elec. Code Ann. § 221.002,

233.006(a)–(b) (Vernon 2003).

After

the election, the City determined that Proposition 1 was legally binding and

Proposition 2 would not be enforced. In

the election ordinance, the following “poison pill” provision was included after

the text of Proposition 1:

If another proposition for a Charter amendment

relating to limitations on increases in City revenues is approved at the same

election at which this proposition is also approved, and if this proposition

receives the higher number of favorable votes, then this proposition shall

prevail and the other shall not become effective.

Alternatively, under Article IX, section 19, of the

City Charter, if two inconsistent charter amendments are approved in the same

election, only the amendment receiving the greater number of votes

prevails. That provision provides, in

pertinent part, “. . . at any election for the adoption of amendments if the

provisions of two or more proposed amendments approved at said election are

inconsistent the amendment receiving the highest number of votes shall

prevail.”

Id . On December 22, 2004, Hotze

and others filed suit against the City, the Mayor, and the City Council,

seeking a declaration that Proposition 2 was effective and could coexist with

Proposition 1, and that both propositions effectively amended the city

charter. Id .

After

the City filed a plea to the jurisdiction asserting that the plaintiffs lacked

standing for their claim, and moved for summary judgment on the basis that

Proposition 1 was the only effective amendment, the trial court denied the plea

and the summary judgment motion. Id . The trial court subsequently denied the City’s

request for reconsideration of its summary judgment motion and granted a

summary judgment motion filed by the plaintiffs. Id .

The City appealed the trial court’s final judgment to the Fourteenth

Court of Appeals. Id .

Meanwhile,

the plaintiffs sought mandamus relief in this Court, contending that the

defendants failed to perform certain ministerial duties in relation to the

election. Id . at 468. We held that the Mayor had a

non-discretionary duty to certify both amendments to the Secretary of State,

but expressed “no opinion as to . . . whether the language of the

proposition 1 and the City Charter requires that proposition 2 be declared

invalid.” In re Robinson , 175

S.W.3d 824, 832 (Tex. App.—Houston

[1st Dist.] 2005, orig. proceeding). We

also held that the City Council had a non-discretionary duty to enter an order

in the city records declaring that both propositions had been adopted by

voters. Id . The City Council and Mayor

complied with the Court’s ruling. See

City of Houston Ordinance,

No. 2005-568 (May 4, 2005) (adopting Propositions 1 and 2 election results).

On

April 3, 2008, the

Fourteenth Court of Appeals held that Hotze and the other plaintiffs did not

have standing for their challenge to the City’s post-election interpretation of

the two propositions based on their working to place the proposition on the

ballot, contributing to the campaign for the proposition, and voting for

Proposition 2. White , 260 S.W.3d

at 473 . Concluding that the plaintiffs

were challenging the implementation and interpretation of the results of

the election, not the election process

itself, and explaining that taxpayer status does not create standing to

challenge election results, the court held that the plaintiffs had not alleged

a distinct injury caused by the City’s post-election interpretation of the

propositions and thus lacked standing. Id . The Fourteenth Court of Appeals remanded to

the trial court to allow the plaintiffs an opportunity to replead an acceptable

basis for standing. Id . at 476.

B.

Current Litigation: Propositions

G and H

Concerned that the uncertainty during

the resolution of the Proposition 1 and 2 litigation could complicate the City’s

finances, the Mayor and the City Council approved putting two new propositions,

Propositions G and H, on the November 7, 2006 ballot. Proposition G revised the calculation for the

city charter’s limitations on the City’s revenues. [1] Proposition H permitted the City to raise

revenues for police, fire, and emergency services in excess of the revenues

allowed under any revenue limitations contained in the city charter. [2]

On

November 3, 2006, Hotze filed a declaratory judgment action against the City

seeking a declaration that Proposition G, as it was to appear on the ballot in

the November 7, 2006 election, was “illegal and invalid as a matter of law.” Hotze sought no immediate relief of any kind

regarding these allegations. The

election was held on November 7, 2006.

Proposition G passed with 61.25% of the vote, and Proposition H passed

with 77.70% of the vote. The City

Council canvassed and declared the results of the election on November 15, 2007. Thirty-three days later, Hotze amended his

petition to include an election contest, seeking a declaration that

“Proposition G and Proposition H are both illegal and invalid as a matter of

law.” See Tex. Elec. Code Ann §

221.002, 233.006(a)–(b). Hotze’s amended

petition was styled “Plaintiff’s/Contestant’s First Amended Original Petition

Seeking Declaratory Judgment and Asserting an Election Contest.”

The

City subsequently filed a Plea to the Jurisdiction, and then an Amended Plea to

the Jurisdiction, arguing that the trial court did not have subject matter

jurisdiction over this action because Hotze’s claims are time-barred by the

Texas Election Code. Tex. Elec. Code Ann § 221.002,

233.006(a)–(b). The trial court granted

the City’s amended plea to the jurisdiction as to all of Hotze’s claims.

In

a single point of error, Hotze contends that the trial court erred in ruling

that it lacked jurisdiction to determine his challenges to Propositions G and

H. Hotze asserts that, because he is now

only seeking a declaratory judgment regarding Propositions G and H and no

longer pursuing any claims regarding the propositions as election contest, his

claims are not time-barred under the Texas Election Code. We examine these arguments below.

Standard of

Review

“A party may contest a trial court’s

subject matter jurisdiction by filing a plea to the jurisdiction.” Tex. Dep’t of Transp. v. Jones , 8

S.W.3d 636, 638 (Tex. 1999). We review a

trial court’s order granting or denying a plea to the jurisdiction de

novo. Hoff v. Nueces County , 153

S.W.3d 45, 48 (Tex. 2004). When

reviewing such an order, “we consider the facts alleged by the plaintiff and,

to the extent it is relevant to the jurisdictional issue, the evidence

submitted by the parties.” Tex.

Natural Res. Conservation Comm’n v.

White , 46 S.W.3d 864, 868 (Tex. 2001).

Here, the parties did not submit any evidence. Therefore, we look solely to the allegations in

Hotze’s pleadings.

A plea to the

jurisdiction challenges a trial court’s authority to determine the subject

matter of the cause of action, but without defeating it on the merits. City of Houston v. Northwood Mun. Util.

Dist. No. 1 , 73 S.W.3d 304 , 308 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied) (citing Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554

(Tex. 2000)). While the underlying

claims may form the context in which a plea to the jurisdiction is raised, the

purpose of the plea is not to preview or delve into the merits of the case, but

to establish the reason why the merits of the underlying claims need not be

reached. Id .

In a plea to

the jurisdiction, “the pleader must allege facts that affirmatively demonstrate

the court’s jurisdiction to hear the cause.”

City of Houston v. Rushing , 7 S.W.3d 909, 913 (Tex. App.—Houston

[1st Dist.] 1999, pet. denied). In

reviewing a jurisdictional ruling, we construe the pleadings liberally in favor

of the plaintiff, look to the pleader’s intent, and accept factual allegations

as true. Tex. Dep’t of Parks & Wildlife

v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass’n of Bus. v. Tex.

Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). We indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Miranda , 133 S.W.3d at 228 .

Analysis

A. Election Contest Claims

An election contest is

a special proceeding created by the Legislature to provide a remedy for

elections tainted by fraud, illegality or other irregularity. Blum

v. Lanier , 997 S.W.2d 259, 262

(Tex. 1999); Tex. Elec. Code Ann. § 233.003 et. seq . “[A]n

election contest includes any type of suit in which the validity of an election or any part of the elective process is made

the subject matter of the litigation.” Rossano v. Townsend , 9 S.W.3d 357, 362

(Tex. App.—Houston [14th Dist.] 1999, no pet.) (emphasis added).

The Election Code

provides a strict timetable for the filing of such claims. Under the Code, an election contest may not be brought

earlier than the day after election day and must be filed within thirty days

after the return date of the election. Tex. Elec. Code Ann §§ 221.002,

233.006(a)–(b); Arrendondo v. City of Dallas ,

79 S.W.3d 657, 670 (Tex.

App.—Dallas 2002, pet. denied). The

thirty-day deadline is jurisdictional and non-waivable. Id .

On appeal, Hotze now states that he is

only pursuing his claims regarding Propositions G and H as declaratory judgment

actions and he will “no longer pursue the election contest.” However, we

note that the vast majority of claims contained in Hotze’s amended petition are

challenges to the language used by the City to place Propositions G and H on

the ballot and attack

the facial legality of the ballot. In

these claims Hotze, inter alia,

complains that the ballot language violates section 9.004(d) of the Texas Local

Government Code and is “misleading,” “vague,” “ambiguous,” “not sufficiently

definite,” and globally “does not accurately describe the object and effect of

the Proposition . . . causing the voters to be intentionally mislead [sic].” These claims are challenges

to the election process itself for Propositions G and H. See, e.g. , Blum , 997 S.W.2d at 262–63; Wright v. Bd. of

Trs. of Tatum Indep. Sch. Dist ., 520 S.W.2d 787, 792

(Tex. Civ. App.—Tyler 1975, writ dism’d) . In

other words, these claims challenge the process by which the City presented the

propositions to the electorate as illegal and invalid. As such, the only statutory mechanism to bring such

challenges is a timely filed election contest.

Blum , 997 S.W.2d at 262–63. It is undisputed by the

parties that Hotze’s challenges to the ballot language of Propositions G and H

were not filed timely under the Texas Election Code. Tex. Elec. Code Ann §§ 221.002, 233.006(a)–(b). [3]

We

do not find—nor has Hotze cited—any authority permitting him to maintain his

challenges to the ballot language of Propositions G or H after an election has

been held independent of the strict statutory remedy available by an election

contest. See generally Rodriguez v. Cuellar , 143 S.W.3d 251 (Tex. App.—San

Antonio 2004, pet. dism’d) (holding “elections are politically time sensitive,

and legislative remedies for contested elections are to be strictly

followed.”). Accordingly,

since a timely election contest was not filed, the trial court lacked subject

matter jurisdiction to hear any claims challenging the facial legality of

Propositions G and H on the ballot. [4]

B. Declaratory Judgment Claims

In addition to

asserting untimely election contest claims challenging the election process of

Propositions G and H—over which the trial court has no jurisdiction—Hotze’s

amended petition also seeks a declaratory judgment regarding the City’s

implementation and interpretation of the election results for Proposition H. See,

e.g. , White , 260 S.W.3d at 472 (explaining

difference between challenge to election process and challenge to

implementation and interpretation of election results and holding that

challenges to City’s interpretation and implementation of election results of

referendum do not constitute challenges to validity of election or election

process). The amended petition provides

in pertinent part:

Proposition H did not advise the voters that it was a one time

exception to Proposition 2 of 2004, an amendment of Proposition 2, or a

continuing forced budget resolution. As such, it failed to comply with

state law . If Proposition H was

only a one time exception, it cannot be implemented because the Mayor of

Houston has refused to publish and implement Proposition 2 . If Proposition H was an amendment of

Proposition 2, it is void because the election of Proposition H was not

noticed as a Charter Amendment and because

Proposition 2 is still in litigation at the Mayor’s request. If

Proposition H was a continuing resolution, it is void because it violates state

law requiring an annual budgeting process.

(emphasis added). Hotze further elaborates on this challenge in

his appellate briefing regarding Proposition H, explaining that, because

Proposition 2 has never been recorded in the City Charter, Proposition H

“cannot purport to amend something that has not even been recorded.” [5]

None of these

challenges concern the process of the election or the validity of the election

itself because none of these contentions assert that there was any flaw in how

the election was conducted. See generally White , 260 S.W.3d at 472 ; Rossano , 9 S.W.3d at 362 ; Blum , 997 S.W.2d at 262 . Instead, these assertions appear to challenge

and seek relief regarding the City’s implementation and interpretation of an

election result. In other words, Hotze’s

challenge is not that Proposition H was passed by the electorate in some

improper way, but rather, as passed, that it is “invalid and illegal as a

matter of law” and cannot become part of the City’s Charter because it violates

“state law requiring an annual budgeting process,” “cannot purport to amend

something that has not even been recorded[,]” and cannot be effective because no

order has declared their adoption.

Accordingly, we hold that Hotze was not required to bring these

challenges under the Texas Election Code. See,

e.g. , Rossano , 9 S.W.3d at 362 .

The next question, then, is whether Hotze has standing to make these challenges

through this declaratory judgment action.

C. Standing to Challenge

Results

of the Election

Standing is a constitutional prerequisite to

maintaining suit in federal or state court.

S. Tex. Water Auth. v. Lomas , 223 S.W.3d 304, 307 (Tex.

2007) ; Williams v. Lara, 52

S.W.3d 171, 178 (Tex.

2000) . As a component of subject

matter jurisdiction, standing is never presumed and cannot be waived. Tex. Ass’n of Bus. , 852 S.W.2d at 443–44, 445. A party may challenge subject

matter jurisdiction by a plea to the jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554 .

For a plaintiff to

have standing to challenge the results of the election, court “decisions have

always required a plaintiff to allege some injury distinct from that sustained

by the public at large.” Brown v.

Todd , 53 S.W.3d 297, 302 (Tex. 2001).

This requires “an actual, not merely a hypothetical or generalized

grievance.” Id . Hotze a rgues that he satisfies this standard because he participated

in some or all of the following activities: (1) organizing a petition drive for

Proposition 2; (2) helping draft the final wording of the petition and

participating in underwriting this effort; (3) signing the petition later known

as Proposition 2; (4) working on the “Let the People Vote” and “Vote Yes on

Prop 2” campaigns to ensure passage of Proposition 2; (5) contributing

substantially to the “Vote Yes on Prop 2” campaign; (6) leading the “Vote Yes

on Prop 2” advertisement campaign; (7) voting

in favor of Proposition 2; (8) running a campaign against the passage of

Proposition G and H called “Let the people vote, Houston”; (9) being a

financial contributor for the campaign against Proposition G and H; and (10)

voting against Proposition G and H. The

crux of Hotze’s argument is that he has standing to bring a declaratory

judgment action regarding the implementation and interpretation of Proposition H

because Proposition H “seek[s] to change the effect of Proposition 2,” which he

actively supported as a petition signer, sponsor and voter. We disagree.

The Fourteenth Court

of Appeals’ decision in White v. Robinson , regarding almost identical allegations to those raised by

Hotze, is instructive to our analysis here. 260 S.W.3d at 463 . In this

case—as in White —Hotze has not pleaded facts affirmatively

demonstrating the trial court’s jurisdiction because he has not shown any fact

that would cause him injury as distinct from the public at large. See id . at 475–76 ; Brown , 53 S.W.3d at 302 . The facts

alleged by Hotze only give him standing to bring a declaratory judgment action

challenging the election process for Proposition H and not an action challenging

the City’s implementation and interpretation of the election results. White , 260 S.W.3d at 469–473 (essentially identical facts only conferred

standing to challenge election process and not standing to bring action

challenging implementation and interpretation of results of referendum

election). As a voter and person

who actively opposed the implementation of Proposition H and who seeks to

protect the results of the election regarding Proposition 2, Hotze does possess

a particular interest in ensuring that Proposition H is submitted to the

electorate in a properly worded ballot. Id.

at 471. However, this interest does

not extend to challenging the implementation and interpretation of the results

of the election for Proposition H itself. Id .

Nor does such standing extend to

bringing an action to protect the results of the election regarding Proposition

2 from change. Id. (“[A] referendum sponsor’s

standing is limited to challenging the election process and does not extend to

protecting the results from subsequent change.”).

In short, Hotze has not claimed an

injury caused by the implementation or interpretation of Proposition

H by the City that is distinct from the injury, if any, suffered by other

voters, taxpayers or citizens. Because

Proposition 2 was submitted to the electorate and passed by voters, and

adoption was reflected in the city records, Hotze has not alleged any distinct

injury caused by Proposition H by virtue of his sponsorship activities

regarding Proposition 2 and opposition activities regarding Proposition H. Instead, Hotze is now essentially equal to all

other persons who voted for Proposition 2 and who wish to ensure it is

subsequently enforced. In a broader

sense, Hotze is now equal to all City taxpayers, and citizens, who wish to

ensure Proposition 2 is enforced because they might be affected by its terms. Accordingly we hold that Hotze has not claimed

an injury caused by the implementation or interpretation of Proposition H that

is distinct from the injury, if any, suffered by other voters, taxpayers, or

citizens and therefore he does not have standing to maintain this action.

Nevertheless, Hotze argues that, under Blum

v. Lanier , he has alleged sufficient facts to establish standing to assert his declaratory

judgment claims challenging Propositions G and H. 997 S.W.2d at 262 . We disagree. Hotze’s reliance upon this opinion is misplaced.

The holding in Blum addresses the standing required for seeking injunctive relief —not declaratory relief—regarding

ballot propositions. As the court held

in Blum , “a

qualified voter who signs an initiative petition has standing to seek, and the

trial court has jurisdiction to issue, an injunction forbidding the City’s use

of a misleading ballot proposition so long as the injunction does not operate

to delay or cancel the called election.” Id. at

264 (holding that Blum had standing to seek injunctive relief to prevent

City’s violating law and subverting election by misleading voters through vague

and misleading language in ballot proposition describing proposed charter

amendment); see also Glass v. Smith , 244 S.W.2d 645 (Tex. 1951)

(affirming writ of mandamus requiring municipal authorities to hold

voter-initiated election after requisite number of signatures were collected,

concluding that signors had justiciable interest in their proposed ordinance

being submitted to people for vote). As

the court further explained, a qualified voter has standing to seek such relief

in part because, “injunctive relief may provide a remedy that cannot be

adequately obtained through an election contest.” Blum , 997 S.W.2d at 264 . Here, however, Hotze did not seek an

injunction to prevent the language from appearing on the ballot, nor does he

seek injunctive relief of any kind in this case. Accordingly, we find that Hotze has not pleaded

facts establishing that he has standing to bring a declaratory judgment challenging

the election results of Proposition H.

Conclusion

If a plaintiff fails

to plead sufficient facts affirmatively demonstrating the trial court’s

jurisdiction, but the pleadings do not affirmatively demonstrate incurable

defects in jurisdiction, he should be afforded the opportunity to amend. County of Cameron v. Brown , 80 S.W.3d

549, 555 (Tex.

2002). If, however, the pleadings

affirmatively negate the existence of jurisdiction, a plea to the jurisdiction

may be granted without allowing the plaintiff an opportunity to amend. Id .

The opportunity to amend pleadings that are insufficient to establish,

but do not affirmatively negate, jurisdiction arises once a court determines

the pleadings are insufficient. Tex. A & M Univ. Sys. v. Koseoglu , 233 S.W.3d

835 , 839‑40 (Tex. 2007). In

particular, a plaintiff deserves the opportunity to amend his pleadings, if the

defects are curable, when an appellate court determines a plea to the

jurisdiction should have been sustained.

See id .

Hotze has failed to

establish standing, but his pleadings do not affirmatively negate standing. The possibility remains that Hotze may allege

other facts demonstrating standing, and, therefore, he must be allowed a

“reasonable opportunity” to amend his pleadings before the trial court’s final

disposition on the plea to the jurisdiction.

See White , 260 S.W.3d at 476 .

Accordingly, we

reverse the trial court’s final judgment and remand for further proceedings

consistent with the opinion.

George

C. Hanks, Jr.

Justice

Panel consists of Justices Alcala, Hanks, and Wilson. [6]

Justice Wilson, dissenting.

[1] Proposition G read as follows:

Exclusions from limits on City revenues.

(a) Revenues of enterprise

funds are not included in revenues limited by this Charter. The preceding provisions do not affect

Charter limitations on the growth of property taxes or water and sewer rates

contained in Article III, Section 1, and Article IX, Section 20, of this

Charter.

Enterprise funds (e.g. the Airport System) are all those largely

self-sufficient activities not funded with property tax revenues. To maintain the self-sufficiency of the Water

and Sewer System, the revenues of that System can only be used for the purposes

of that System, and limited drainage purposes, as set forth in the existing

debt covenants of that System. Those

revenues cannot be used for any other purpose.

(b) For the purposes of

calculating any revenue limitation in this Charter, amounts resulting from

termination of or reduced participation in a tax increment reinvestment zone

shall be treated in the same manner as revenues from annexed areas in Article

III, Section 1.

(c) City Council may prescribe

methods for complying with limits on revenues in this Charter to account for

changes in accounting standards or practices.

[2] Proposition H read as follows:

To pay for the public safety needs of an increased

population, the City of Houston may collect revenues of $90 million for police,

fire and emergency medical services and related communications and dispatch

costs, so long as the Fiscal Year 2007 (Tax Year 2006) combined property tax

rate is at or below the combined property tax rate in Fiscal Year 2006 (Tax

Year 2005), notwithstanding any applicable revenue limitations in the Charter. Any amount collected under this authority

must be spent on police, fire and emergency medical services and related

communications and dispatch costs. This

amount shall be added to any applicable revenue limitations in Fiscal Year 2007

(Tax Year 2006) and any base used to calculate revenue limitations in following

budget years.

[3] The

relevant dates in the instant case are undisputed by the parties. Hotze first brought his declaratory judgment

action challenging the validity of Proposition G on November 3, 2006, before the

period permitted for filing an election contest. Four days later, on November 7, 2006, the

voters approved both Proposition G and H.

The Houston City Council officially declared the results of the election

on November 15, 2007. Thirty-three days

later, on December 18, 2006, Hotze amended his petition to include his election

contest challenging the validity of the Propositions. Pursuant to the Texas Election Code these

challenges are untimely. Tex. Elec. Code Ann §§ 221.002,

233.006(a)–(b).

[4] The City argues that, since the

election contest claims are time-barred, this entire action should be dismissed

as moot because there is no case in controversy between the parties. We disagree.

As discussed below, not all of Hotze’s claims in the case can be

characterized as “election contest” claims.

[5] We note that Hotze’s

motion for new trial and appellate briefing argues that the intent of his

pleadings is also to challenge as invalid and illegal the implementation of

both Propositions G and H under Section 9.005(b) of the Texas Local Government Code on the grounds that neither proposition is

effective because no order has yet declared their adoption. However, this argument is not made in either

the original or amended petitions, nor are there any factual allegations made

in these pleadings to support this argument.

[6] The

Honorable Davie L. Wilson retired Justice, First Court of Appeals,

participating by assignment.