Tortolito v. State, 901 P.2d 387

Tortolito v. State

901 P.2d 387

Wyo.

1995

Check Treatment

*1 Enterprise Liability. mary judgment appropriate was as a matter of law. The Hamiltons their contend belief Affirmed.

party appli- anwas NCEA function warrants liability theory enterprise cation of the adopt the rule recommend this enterprise liable if

that an should

enterprise impacts society negligent and the activity performed

act occurred or in

the benefit the interest of the enter-

prise. reply, theory NCEA contends the respondeat is an superior extension of car- Joseph TORTOLITO, Steven generally degree ried to аn extreme which is Appellant (Defendant), judicial rejected opinions policy rea- sons. Wyoming, The STATE of enterprise liability The rationale for the (Plaintiff). Appellee

theory explained Hagan, Sandman (1967): Iowa N.W.2d 113 No. 92-237. [T]he so-called modern trend to find [is] Wyoming. Court of liability in of this class cases on the basis wrongs that such are committed Aug. employee only employment because situation, employer and that since the has enterprise

the benefit as between parties,

two innocent third he is better able

to bear the risk loss. If he cannot

altogether wrongs, avoid he can such

least minimize them. those cases it is

argued general sense of fairness

requires employer, that the as the business,

interested benefitted than persons

rather no con- have it,

cern in or control over should bear the wrongs

burden such as incidental

such business.

Sandman, 154 at 118-19. N.W.2d generally impose

Courts “decline rule, ramifications which would be

far-reaching rearrange, and which would state, responsibility employ

across the employees.

ers for the conduct of their Such policy is, appro redirection of social more

priately, legislature.” function White, Wash.App.

Kuehn v. agree with rationale reject theory enterprise liability.

CONCLUSION correctly

The district court determined no

genuine issues of material fact existed on liability

issues of direct vicarious and sum- *2 GOLDEN, THOMAS, C.J., and

Before LEHMAN, MACY, and TAYLOR JJ. GOLDEN, C.J., opinion delivers the J., Court; THOMAS, dissenting a files opinion.

GOLDEN, Justice. Chief (Wyo. Tortolito 1994), Joseph court affirmed a divided Steven (Tortolito) conviction sentence Tortolito’s robbery. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍granted petition for Tortolito’s We reargument on rehearing for and heard March 1995. opinion, withdraw our earlier reverse impermissible

the conviction and sentence for pre- prosecutorial upon Tortolito’s comments silence, trial. and remand for new arrest

FACTS January passenger at the On Greyhound Cheyenne bus station in robbery. Tortolito of When confronted accusation, passenger’s bus driver about taking allegedly pas- Tortolito admitted senger’s money. Police were summoned employee told a bus station that were a passenger. Tortolito had robbed Police detained, searched, again questioned, Tortolito, questioned him arrested robbery. for Tortolito was tried before jury robbery on which convicted him of the motions, April Following post-trial granted trial court new trial because argument by improper closing prose- Tortolito was a second time and cutor. tried again jury robbery on convicted him June subsequent appeal presented

Tortolito’s issues, primary in- seven concern volved his contention that prosecutor impermissibly had commented pre-arrest original his Our silence. prosecuto- majority opinion determined rial comments about an accused’s silence impermissible required reversal Newcomb, Tim of Grant & Newcomb only when the silence to which comments Cheyenne, appellant. were directed occurred either arrest General; Meyer, Attorney giving D. Joseph B. advice Pаuling, Attorney Deciding Assistant Gen- remain silent. Michael Sr.

eral; Wolff, only Mary inquiries Beth Attor- after the the offi- Sr. Assistant arrested silent, General, ney Cheyenne, appellee. cers to which he remained Historically, no jealously concluded that comment our Court has guarded against any remain silent had occurred. The court then ... infringe- that, light “peculiar dynamics” ment. ... We hold under this section viz., case, ad- affirmative our state constitution *3 upon mission to a bus driver before law enforce- an prejudi- accused’s exercise ... scene, cial, ment officers arrived on the once will entitle an reversal accused has made a lawful affirmative admis- of his conviction. person, sion to a non-law enforcement Glenm, 573 P.2d at 846. State, reversible rule of error Clenin 573 that, by Clenin held virtue of the constitu- (Wyo.1978), applicable. is not Tor- itself, provision’s language tional silence was tolito, at 885 P.2d 870. greater protection afforded than that afford- grаnted petition for rehear- process. ed under due Unfortunately, in

ing to reconsider this court’s determination subsequent comment-upon-silence cases, this comment-upon-silence question. of strayed court from Clenin’s reliance on the provision constitutional pre- and reverted to DISCUSSION upon process cedent based due consider- ations, gives guid- the result which of little Standard Review litigants, counsel, ance to or trial courts. Wyo. 1. Notwithstanding, clearly signifies § Art. 1 11. Clеnin Const. Wyo. § Const. Art. 1 11 is the basis for Clenin, Before this court’s in decision analysis comment-upon-silence of all issues. comment-upon-silence issues were resolved under the process due rationale in articulated prohibition state against constitutional Doyle Ohio, 2240, 610, 96 S.Ct. 49 in part: self-incrimination1 states relevant (1976), L.Ed.2d adopted 91 this court person compelled testify No shall be Irvin v. (Wyo.1977). 560 P.2d 372 against any himself in criminal case.... However, Clenin, departed this court Wyo. §1 11. Const. Art. process analysis analyzed due whether Jerskey 546 P.2d 173 1, provision the self-incrimination of Article (Wyo.1976), provision prohibited we held the Wyoming Section Constitution of prosecutorial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon comment eventu greater protection. fered by a testify ated defendant’s failure to In Clenin a unanimous court held: Jerskey, trial. 546 P.2d at 6. 176 n. Follow silent, anof accused to remain the United States Court’s deci however, 1, § under Art. 11 of the Consti- Arizona, 436, sion in Miranda v. U.S. tution Wyoming of the State of ... does (1966), 16 L.Ed.2d 694 the Court depеnd upon being advised of that process held the due clause of the Four right, but exists virtue constitu- teenth prohibited Amendment language. tional Advice as to that silence,2 pretrial judging an accused’s it fun law only enforcement officers ... damentally unfair to assure an accused he purpose expanding protection by as- its can remain silent and then use that silence suring person that the accused aware against Doyle, him at trial. at 617- U.S. it. 2244-45; 96 S.Ct. at Brecht v. Abraham —son, —, —, U.S. Abeyta (Wyo.1979), Doyle 1. P.2d were based the Unit- Guthrie, Ret., explored purpose Justice provi- ed States Constitution’s self-incrimination Wyoming prohibitions federal and constitutional sion which states: against self-incrimination. reason One compelled No shall ... be crimi- safeguard against enforcement this “is himself,.... case to be nal a witness fear and so that torture there will not be extorted ConstAmend. V expressions of untruth.” Id. at 707-708. Anoth- Constitution, pre-trial express respect Under Federal gоvern- er reason is to the dignity that a encompasses post-arrest post-Miranda integrity si- ment must its show citizens. Id. at lence. personnel treat silence Irvin enforcement L.Ed.2d in Clenin Law adopted Doyle, guilt. enforce- probative evidence analysis analysis process turned from due arrest personnel can time the citizen’s ment provision of the self-incrimination citizen mute in the to occur after the stands presented with Wyoming Constitution practice, This which faсe of accusation. involving a sus factual situation the different arrests, encourages manipulative timing of Mi of his not been advised pect who had provision’s does not serve the constitutional Clenin, at 846. rights. randa purpose protecting lan- state pre-arrest, accusatory interrogation right to an accused’s guage protected itself Permitting prosecuto- agents. the state’s *4 protection the that existence silence discourages law rial use of that silence a upon Cle- depend Miranda advice. did not system’s reliance extrinsic enforcement nin, Subsequent decisions at 846. through independently secured evidence post-arrest with- to situations limited Clenin instead, and, encourages investigation skillful provision and analysis the out further compulsory reliance self-disclosure. authority.3 the limita- conclude without Illinois, 378 U.S. 84 Escobedo v. See upon the broader Based tion was erroneous. (1964). 1758, 1764 12 L.Ed.2d 977 constitution, Cle- prоtection of our own state to silence and sur- expanded right the nin right is a Since the to remain silent post-arrest limi- just part of the mounted not presumed self-executing right, an accused is by imposed due tation all limitations but silence, right exercising by pre- the to be analysis. process questioned pre-Miranda arrest and when agents purposes criminal the state’s 2. Pre-arrest Silence prosecutori investigation.4 Accordingly, the [3,4] the state analyzing Clenin and guilt to infer al use of the citizen’s silence the no ration- language, we discern constitutional constitutionally prohibited. of the citizen is embracing protection al to limit the reason post-arrest to right the to the citizen’s silence subject are Prosecutorial violations post-Miranda The constitution- situation. rule’s that to to the Clenin mandate failure right all al at times —before exists the respect citizen- arrest, arrest; arrest, before have his accused not to silenсe called warning it. The and after to a jury’s attention will entitle the accused self-executing. State, reversal conviction. Westmark constitu- view that no Under erroneous (Wyo.1984), citing P.2d 221-22 Cle- 693 exists, a pre-arrest silence tional to A which not a nin. reference in the accusa- citizen stands mute face of “comment” will not be reversed absent during a tory interrogation the crime about State, showing prejudice. Parkhurst v. inquiry is investigation and law enforcement (Wyo.1981). P.2d proteсtion against law 628 1382 without constitutional case, State, (Wyo. interroga- there custodial "[i]n 628 is no 3. See Parkhurst P.2d 1369 any activity denied, or its tion nor of the state enforce- 1981), cert. ment officers that did in manner contra- (1981); 70 216 Clenin was overruled L.Ed.2d underlying purpose vene of these amend- State, 1982) (Wyo. and a 642 P.2d 1269 Richter v. Abeyta, ment[s]." 592 P.2d at adopted. over Richter was harmless error rule not, out, Abeyta pointed that could have State, (Wyo. 693 220 ruled Westmark v. P.2d (silence) aas admission of nonverbal conduct State, 1984); (Wyo. 725 P.2d 1033 Summers v. context, statement, particular factual is an in this 1986); (Wyo. Tortolito v. P.2d evidentiary question ar- and not a constitutional 1994). Parkhurst, gument. (Rose, P.2d at n. 16 See J., concurring). For a discussion of contrast, Abeyta see P.2d 705 considerations, evidentiary see James Duff, Jr., (Wyo.1979), holding Accusation, of evi- Nonverbal Reaction Annotation, apparent Alone, between an Constituting Adop- dence of conversation Other Than Silence Rule, Hearsay did not friend and the defendant violate A.L.R.3d tive Admission Under provision state because: on Tortolito’s THOMAS, Justice, dissenting. Prosecutorial Comments Si- lence I opinion must dissent from the following record indicates court upon rehearing. Having written the against robbery accusations Tortolito opinion (Wyo. employee, police victim and a station bus 1978), court, I position am in no interrogated detained and Tortolito about deny espoused. ease the rule it trial, prosecutor’s those accusations. At do, however, understand the rule Clenin to questions police officers elicited numerous post-arrest and, therefore, be a rule more answers that Tortolito silent remained narrow than the rule now articulated taking accused him officers the majority. My protest really judi- cial posed vacillation and the unfair dilemma respond Did Mr. [Prosecutor]: in for the trial prosecuting court and the attor- any way telling you Pederson Officer ney. Both must feel that have been taking money? about Mr. Tortolito blind sided in classic manner. say

A: He didn’t a word. judicial proper tension over the meth say Mr. [Prosecutor]: Tortolito didn’t *5 od of dealing upon awith comment the si response money word in to “he took from a person starkly lence of an accused is mani inside, passenger fifty twenty”? and fest in the decisions of this court. The rule sir, just A. No he stood there. articulated in Clenin was some overruled years State, four in later Richter v. 642 P.2d Tеstimony revealed that was Richter, turn, (Wyo.1982). searched, in was found, over money and when was the State, years ruled two later v. Westmark police again officers asked Tortolito where he (Wyo.1984), 693 P.2d 220 the gotten and had holding was empha resurrected. It must be And did [Prosecutor]: Mr. Tortolito re- sized that Clenin and were Westmark direct spond? given ed at to arising the effect be error out A: No. upon of a comment an exercise ac questioning Further trial elicited addition- right cusеd of to silence. The testimony concerning al Tortolito’s silence in per error espoused. se rule was Then we face of police accusation but before the State, decided v. Brewster 712 P.2d 338 placed During officers handcuffs on him. his (Wyo.1985), followed, in which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Westmark was statement, opening prosecutor mentioned State, (Wyo. Parkhurst 628 P.2d 1369 in Tortolito’s the face of accusa- denied, 1981), cert. tions; during argument, closing his he (1981), distinguished 70 L.Ed.2d 216 was characterized the silencе as an admission. ground on jury likely that the not to guilt infer an from defen A comment an accused’s si Brewster, nonresponsiveness. dants’ In lence occurs used to advan the state’s parameters foreclosing of the rule comment tage guilt either as substantive evidence of the exercise his suggest jury to the silence was an accurately to silence were summarized: Parkhurst, guilt. admission of 628 P.2d at long culminating line of cases State, supra, Westmark v. this court has prosecutоr The elicited this testi- “silence” prosecutorial at comments then, mony proof guilt concerning the accused’s silence follow- closing argument, it characterized as an ad- rights guaranteed by arrest violate guilt. prosecutor’s mission The use of Fifth Amendment to the United States constitutionally protected Wyo- § Art. Constitution and in the face of the officers’ accusations was ming Constitution. comment, impermissible entitling Tortolito to reversal of his conviction. Brewster, added, (emphasis 712 P.2d at 340 omitted).

Reversed and remanded for new trial. footnotes cases, wrong to follow our in Go- vinced year, the issue arose following The justice not (Wyo.1986), and I am has been convinced mez (Wyo.1986). this case. served Cheatham facts of were determined Gomez again, this court has transformed the Once and, con- in Parkhurst more similar those into victim. most feats of villain Like amount to a sequently, not accomplished by keeping legerdemain, this is to silence. uрon the exercise partially the audience the dark. Since the Gomez, 56, the noted that: P.2d withdrawn, it opinion the court earlier justification de- for the The essential necessary “unique to flesh out some of the espoused velopment in West- of the rule dynamics” case in for the audi- of this order that, supra, once mark v. understanding circum- to have an ence formal- been arrested and defendant has expanded which the version stances pursuant ly rights Mi- advised оf his applied. the rule found in Clenin is Arizona, 436, randa questionable engaged in It is Tortolito was (1966), 1602, 16 what occurs L.Ed.2d to silence. The the exercise of inherently equivo- point on is from driver first confronted Tortolito tes- bus tell whether a failure cal. One cannot tified: respond is because the defendant Q. you do? What did exercising he is the constitutional to come [Tortolito] A. asked Stevie over he has about which to remain silent to where I was and asked him whether he formally аdvised, he or whether been know, taken, you money [the had say. simply nothing has victim], said, “Yeah, you’re he *6 says that of the Court United States to going get to it back.” Or words any to of the inherently it is unfair utilize effect. permit- which had approaches traditional Q. respond- state call attention to the defen- This what Mr. Tortolito is ted the to speak ing you? an innocent to dant’s failure to reasonably expected to would be Right, my question A. about whether added.) explanation. (Emрhasis offer money victim]. he stole from [the Cheatham, argument closing about Wayne R. As La- succinctly stated 1 com held not to be a lack of evidence was ISRAEL, FaVE & H. PROCE JEROLD CRIMINAL ment exercise (West Publishing § 6.10 at 541 Co. ed. DURE with, precedent. Later prior in accordance 1984), “it does is clear year, v. same in Summers interrogation private citizens govern act (Wyo.1986), reh’g, 731 1033 on confirmed sup their The eases on own.” decided (Wyo.1987), court, although this P.2d 558 E.g., States v. United port proposition. majоrity, rule in a clear limited the without Pace, (9th Cir.1987), cert. de 833 F.2d 1307 relating and Westmark comments nied, 1011, 1742, 486 108 S.Ct. 100 his an accused to the silence of “either Webb, L.Ed.2d 205 United v. (1988); States his or after has been advised of arrest he denied, reh’g F.2d 755 F.2d 382, 762 1004 right to remain silent.” Sum Pullen, (5th Cir.1985); United States v. 721 mers, 725 P.2d at 1048-49. Whitt, Cir.1983); People (11th v. F.2d 788 36 Wyoming 724, This was the of our law in Cal.Rptr. 810, state Cal.3d 205 685 Hawkins, People I am not v. (1984); 181, at the time Tortolito was tried. 53 Ill.2d 290 strayed Rutledge N.E.2d 231 v. persuaded (1972); from Clenin 525 go Certainly, Lipps it did not N.E.2d 326 (Ind.1988); this series cases. 254 any now N.E.2d 622 Common 141, far afield this case does. (1970); as as Ind. 258 Allen, event, normally expect our trial courts wealth v. 480 N.E.2d 448, we 395 Mass. Rodwell, pro- attorneys to follow the rules (1985); Commonwealth v. and our 630 394 Now, opinions. N.E.2d 385 Common 694, (1985); in our nounced Mass. 477 White, judge attorney and the discover wealth N.E.2d prosecuting 353 Mass. denied, con- wrong (1967), do so. I am not cert. were (1968); kept A. talking L.Ed.2d 881 State Officer [P] to him for LaRose, minutes, couple 286 Minn. N.W.2d 247 receiving under- no (1970); Bodtke, State v. 219 Neb. response. standable At that time de- we (1985); Valpredo, pockets. N.W.2d State cided to search his Wash.2d must he had allegation despite The be unrefuted oath, accepted taken 368, 450 P.2d 979 to the effect Tortolito admitted testimony the effort money something the bus more the victim majority than an driver, A. He was Tortolito? Q. n What was searching n : searching Officer in the ^[*] right pocket [P] Stevie’s left ^[*] doing n while pocket. of Mr. ^[*] you opinion to mask it as Q. such. ease then any money? Did Officer find [P] light must examined in affirmative did, A. I totally believe he but I’m not already by Tortolito. admission made That certain. antithetical cоnclusion Q. happened What then? exercising that Tortolito was Well, talking Stevie, A. he was ‘Where silence. you did get meaning money this?” majority opinion upon rehearing my had in hand. no mention story. makes of the “cockatiel” Q. Stevie, questioning Who was “Where testimony presented The record discloses on you get did this?” Tortolito’s behalf that had he returned two Chey- eockatiels to the Wal-Mart store in A. Officer [P]. day enne on same and had received a Q. respond? And did Mr. Tortolito equivalent substantially cash refund A. No.

money in possession at the time of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the encounter with the officers. This ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] police testimony *7 gation. Nothing could be more natural than erated Tortolito officers the indeed was necessity tell the bus driver and the early money to introduce Tortolito’s fortuitous, stages in his of the investi- pocket but it came gen- A. Q. didn’t you n ; What did I turned and asked say nothing. do with the n you n do? money?” ^[*] him, “Stevie, He said —he n n what Wal-Mart, victim, if from not the that were Q. many you asking How times do recall so. Mr. Tortolito if he had indeed taken points following portions Tortolito money passenger? from the transcript testimony of a A. A couple of times. officer: Q. respond? Did he ever Q. happened? What then Did Mr. Tor- No, A. not. he did respond way tolito to Officer [P] Q. any way yes, In no? telling you taking about Mr. Tortolito — money? A. Just stared at me. say He A. didn’t a word. addition, In portion Tortolito relies a Honor, COUNSEL]: Your [DEFENSE closing argument by at- prosecuting going objection I’m reiterate the made torney: at the side bar conference earlier says, Officer “Where’s [P] the victim?” opening statement. ‘Well, “Bring he’s him inside.” out.” And THE COURT: Overruled. out, so brought [the he victim] was and Q. Mr. say Tortolito didn’t word said, guy faced Mr. and “He’s the response money pas- “He took from a my money. that took A 50 and and a 20 inside, twenty?” senger fifty and a change.” kept he was some He said that it No, sir, just

A. he there. stood in his billfold he had to it to and stare at Q. happened figure What then? it out. silence, by interroga- that, Mr. how is whether in the

And face Nothing. himself, Tortolito, say? accused or interro- he tion of the what does money.” say, my inherently prejudicial, gation doesn’t “That’s of others He to reversal of will entitle going on?” “What’s [H] arrives. Officer “Stevie, his conviction. thing. where’s The same ques- you money?” Did hear man’s added). Clenin, (emphasis P.2d at “Stevie, you did Officer [P]? tion asked majority recognize as also fails to Clenin The say money?” He didn’t man’s take this by its facts post-arrest case. It is limited anything. discussing upon authority the issue and relies him and find the search The officers post- only post-arrest and in the context of money, puts money. takes the [P] Officer reminder situations. “Stevie, you take face. did it in Stevie’s because, given the post-reminder, I use money?” he do And what does this man’s situations, pre-arrest of Clenin to extension out, trying grab swings then? He warning obviously is no offer a there need to with the scuffle That’s when silent. the constitutional to remain as to started, into the wall [H] Officer only significancе giving the accused ground. on the down warning concerning traditional All of those admissions. Admissions. must testify not to oneself it, “Yeah, giving it I took I’m not subject remind the of information he be to face of the And the in the back.” presumed possess. The entire she very clear accusation. holding, in of Miranda is thrust blunted anything hear about cocka- You didn’t effect, presumed all to be citizens are then, you? mind is clouded His tiels upon it. relying aware of be of it. can’t think with alcohol he certаinly as be understood Westmark cannot majority claims to have restored majority ruling extending in favor of Cle- it found in and Westmark. law as pre-arrest nin to situations. fact, majority the rule of has extended view, my prose- punish rather than found in Clenin so that all situations law following trial the law cutor and the court for when confronted law enforcement tried, Indeed, time Tortolito the harmless one at the was kept jury. must be applied. If rule of Richter should be marvel at the error reading transcripts will could be a case arose which error ineptitude of officers. ever gross law enforcement harmless, recognized to be such a inquiry this has They not be to state what will able “coeka- Tortolito has tried to sell the suspect. would have to case. made of That story juries. body to two Neither tiel” treated as the exercise *8 it, bought it the buying and won’t be suspect since the testimony in a new of refer- report the trial is sanitized permitted not be officers would to Tortolito’s The affirmative ap- must ences silence. response. Consequently, it lack suspect uttered to driver still will did the bus pear the officers not even ask is noth- carry Consequently, the field. there explanation. hardly seems fair to for an It remanding accomplished by a crime to be suspected of commission of one expendi- other than story. new trial to insure person’s to ask that side of the not argument public’s ture of more plaintivе hear can almost defender, “They public the creative expand upon If the court chooses to Cle- my happened!” client even ask what nin, in- appropriate this would be a most than rule is limited The Clenin much more which invoke the “Sunburst” stance majority articulated here. the rule Ry. rule. Great Northern Co. Sunburst Succinctly, the rule is: Co., Oil & U.S. Ref. Sunburst, of our hold that this section L.Ed. acknowledged 11 of of the United States

state constitution Section Court [Article adher- Wyoming] defining the limits of “[a] State the Constitution State may a choice for precedent make any comment an accused’s exercise ence principle opera- itself between the of forward

tion and that of relation backward.” Sun-

burst, By 58 S.Ct. at 148.

making adoption of the new version of Clenin rule prospective only, we would injustice

avoid the to the state that is inflict- majority

ed ruling. shifting Wyoming jurispru- sands of pummeled by

dence have been another dust

storm. It disappointing indeed must be attorney who,

the district judge and the trial trying ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍jury a ease to the in accordance rules,

with the extant discover the rules have

changed and the case is reversed. It

dismaying appears when it primary rea-

son the changed rules have is that there is a justice

different on this court. A supreme obligation equally has an to be fair to parties.

all The prosecuting attorney and

the trial court were entitled to believe proceeding in accordance with the law

as established this court.

I still would affirm Tortolito’s conviction.

William G. STEIL and Grace A.

Steil, Appellants (Plaintiffs),

Mary Mary Ann Smith, SMITH and Ann Mary

Trustee of the Ann Smith Trust

Agreement September 22, dated (Defendants).

Ap-pellees

No. 94-253. *9 Wyoming. Court of

Aug. Toner,

Lawrence A. Yonkee of Yonkee & Sheridan, appellants. Kirven, M.

Dennis Kirven of Kirven & Buffalo, appellees. GOLDEN, C.J., THOMAS,

Before MACY, LEHMAN, TAYLOR and JJ.