Christopher Powell v. Patsy Powell ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 21, 2003 Session
CHRISTOPHER NASH POWELL v. PATSY CONLEY POWELL
Direct Appeal from the Chancery Court for Haywood County
No. 11937 George R. Ellis, Chancellor
No. W2002-00421-COA-R3-CV - Filed April 7, 2003
This case involves the proper valuation and division of marital property, the propriety of the award
of sanctions and attorney’s and expert witness’ fees. We affirm the trial court’s valuation and
division of the marital property. We reverse the award of fees and the imposition of sanctions as the
sanction imposed exceeded the authority of the trial court. We remand the case for further
proceedings to include consideration of the imposition of a sanction within the court’s authority.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part;
Reversed in part; and Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which DAVID G. HAYES, SP . J. and
FRANKLIN MURCHISON, SP . J., joined.
Daniel Loyd Taylor and Amy R. Harden, Memphis, Tennessee, for the appellant, Christopher Nash
Powell.
William L. Bomar and Joy T. Bomar, Memphis, Tennessee, for the appellee, Patsy Conley Powell.
OPINION
The parties were married on April 2, 1997, after dating for seven months. It was not the
first marriage for either party. Mrs. Powell was granted an absolute divorce as of December 17,
2001, on the grounds of inappropriate marital conduct. The final decree of divorce was entered
January 29, 2002.
The parties do not appear to agree on any matter, including the net worth of each
individual party prior to the marriage, as well as Mrs. Powell’s contributions to the check cashing
business during the marriage. Mrs. Powell asserts that she loaned her husband money as well as
paid most, if not all, of the couples expenses during the early days of the union. The greatest
point of contention appears to be the valuation of Mr. Powell’s interest in a check cashing
business. Mr. Powell and his brothers own numerous check cashing outlets, all but one of which
were opened during the course of the parties’ marriage.1 Mr. Powell holds a minority share in the
majority of these stores, with his greatest interest being fifty-percent (50%) in two stores.
As noted, the main source of contention is the valuation of Mr. Powell’s interest in these
check cashing stores.2 Both parties proffered expert opinion as to the valuation of the check
cashing business. Mr. Powell’s expert, his CPA, valued the business at $385,482.00 while Mrs.
Powell’s expert, a CPA and certified valuation analyst, valued the business at $2,290,000.00.
Mr. Powell takes issue with this valuation, which the court accepted, since it does not reflect
“fair market value” (FMV) as that term is defined in Revenue Ruling 59-60. Mrs. Powell’s
expert valued the business as an on-going concern, and specifically for divorce purposes, which
he admitted results in a valuation which does not reflect fair market value.
After hearing testimony from both experts, the trial court accepted the testimony of Mrs.
Powell’s expert as to the value of the business and awarded Mrs. Powell one-half of the increase
in value of the store owned by Mr. Powell prior to the marriage, and one-half of the value of the
stores acquired during the marriage, for a total of $1,119,000.00. Mr. Powell was also ordered to
pay Mrs. Powell’s attorney’s and expert witness’ fees.
Additionally, the trial court found Mr. Powell in contempt for investing in two entities in
violation of a status quo injunction. The trial court awarded Mrs. Powell a one-half interest in
these entities as a sanction, and required Mr. Powell to assume Mrs. Powell’s indebtedness on
these entities, as well as indemnify and hold her harmless on the same. Mr. Powell filed a timely
appeal in which he raises four (4) issues for our review.
Issues
I.. Did the trial court err by adopting a formula for the valuation of
Husband’s business interests that does not reflect fair market value as defined by
Revenue Ruling 59-60?
II. Did the trial court err by failing to restore the parties to the positions
they would have been in had this short marriage never taken place?
III. Did the trial court err in finding Husband in contempt of court for
investing in the Pinnacle Group and Front Line Security, and by awarding Wife
one-half of the investment while assessing all debt in the investment to Husband?
1
The trial court found that only one store was in op eration at the time of the m arriage .
2
W e refer to the interest in the stores as Mr. Powe ll’s since it appears that M rs. Po well is not a record owner
of any o f the stores. Despite this fact, Mr. P owell’s interest in all but one of the stores is clearly marital property, and
thus wo uld be correctly labeled a s the Powells’ interest.
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IV. Did the trial court err by awarding Wife one hundred percent (100%)
of her attorney fees and expert witness fees?
Valuation of Husband’s Business Interest
Contrary to the Appellant’s contention that this poses a question of law requiring a de
novo review, our courts have determined that the determination of the value of a marital asset is a
question of fact. Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998). Accordingly,
“a trial court’s decision with regard to the value of a marital asset will be given great weight on
appeal.” Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987); Tenn. Rule App. P.
13(d).
Appellant contends that the trial court erred “by adopting a formula for the valuation of
Husband’s business interests that does not reflect fair market value as defined by Revenue Ruling
59-60.” We disagree.
The bulk of the stores at issue were formed by Mr. Powell and others as Limited Liability
Companies (LLCs). This Court has not had occasion to address the question of how to properly
value an LLC for the purpose of dividing marital assets. We believe, however, that for such
valuation purposes, our discussion of how to properly value a closely held corporation is
instructive.
This Court addressed the question of how to properly value a closely held corporation for
the purpose of dividing marital assets in the case of Wallace v. Wallace, 733 S.W.2d 102 (Tenn.
Ct. App. 1987). The Wallace court opined that “[d]etermining the value of a closely held
corporation is not an exact science[,]” Wallace, 733 S.W.2d at 107, and that
[t]here are a number of acceptable methods available to determine the value of
a corporation. Blasingame v. American Materials Inc., 654 S.W.2d 659, 666
(Tenn. 1983) recognized three of these methods: (1) the market value method, (2)
the asset value method, and (3) the earnings value or capitalization of earnings
method. There are still others including . . . the liquidating value method. See B.
Goldberg, Valuation of Divorce Assets §§ 6.5-6.8 (1984). The choice of the
proper method or combination of methods depends upon the unique
circumstances of each corporation.
Wallace, 733 S.W.2d at 107 (emphasis added).
The court goes on to state that
[t]he courts have not articulated a consistent approach to the valuation of this type
of marital asset. However, Rev. Rul. 59-60, 1959-1 C.B. 237 has been recognized
as providing the most comprehensive guide to making this determination. B.
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Goldberg, Valuation of Divorce Assets §§ 1.12 & 6.6 (1984) and 24 Am. Jur.2d
Divorce and Separation § 947 (1983). But Rev. Rul. 59-60 is intended to be only
a guide. It was never intended to be an inflexible rule. Turgeon v. Turgeon, 190
Conn. 269, 460 A.2d 1260, 1265 (1983).
Wallace, 733 S.W.2d at 107 (emphasis added).
We believe these statements to be equally applicable in the present case, where the
business entity involved is an LLC controlled by a small group of family members. In short,
neither Wallace, nor any other case we are aware of, mandates the use of Rev. Ruling 59-60 as
the basis for determining the value of a party’s interest, be it in a closely held corporation or an
LLC, for the purpose of marital property division.3 Accordingly, the trial court acted within its
discretion in considering Mrs. Powell’s expert’s testimony, notwithstanding the methodology
supporting such testimony.
The value of marital property is determined by considering all relevant evidence
regarding value and the burden is on the parties to produce competent evidence of value. Id. It
is apparent that in reaching its valuation determination, the trial court relied heavily upon the
testimony of Mrs. Powell’s expert, Mr. Vance, and thus found Mr. Vance’s valuation to be more
credible than that of Mr. Powell’s expert, Mr. Noble. “Unlike this Court, the trial court observed
the manner and demeanor of the witnesses and was in the best position to evaluate their
credibility.” Union Planters Nat'l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502
(Tenn. Ct. App. 2000). The trial court's determinations regarding credibility are accorded
deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn.
2001). “[A]ppellate courts will not re-evaluate a trial judge's assessment of witness credibility
absent clear and convincing evidence to the contrary.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d
779, 783 (Tenn. 1999). The record supports the trial court’s use of Mrs. Powell’s expert’s
testimony as opposed to that of Mr. Powell’s.4
The expert testimony was not the only evidence presented as to the value of the check
cashing business, however. Additional evidence, in the form of financial statements which Mr.
Powell submitted to various financial institutions, was also presented. In these statements, Mr.
Powell represented the value of his interest in the check cashing business to be $3,370,000.00 as
of February 7, 2001,5 ten months prior to the grant of the divorce. Mr. Powell now asserts that
3
In his brief, Appellant fails to cite a single case supporting this contention.
4
Suffice it to say that Mr. Powell’s expert’s qualifications paled in com pariso n to those of M rs. Po well’s exp ert.
5
M r. Powell had place d the value of the business at $595 ,000 .00 as of M arch 1 8, 19 97, approximately two
weeks prior to the parties marriage when there was one store open. Assuming this to be the value of the one store prior
to the parties entering into marriage, and using the $3,370,000.00 figure as the value of Mr. Powell’s interest in all of
the stores as of the date of d ivorce, this lead s to the conclusion that the value of the business, which would include the
(continued...)
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these financial statements overstated the true value of his business.6 Such assertions
notwithstanding, “any statement, whether oral or written, made by or attributable to a party to an
action, which constitutes an admission against his interest and tends to establish or disprove any
material fact in the case, is competent evidence against him in such action.” Dailey v. Bateman,
937 S.W.2d 927, 930 (Tenn. Ct. App. 1996) (quoting Jones v. Lenoir City Car Works, 392
S.W.2d 671, 673 (Tenn. 1965)). Accordingly, these financial statements were properly
considered by the trial court as evidence of the value of the check cashing business.
“The value of a marital asset is determined by considering all relevant evidence regarding
value.” Wallace, 733 S.W.2d 102, 107 (citations omitted). If the evidence of value is
conflicting, the trial judge may assign a value that is within the range of values supported by the
evidence. See Ray v. Ray, 916 S.W.2d 469, 470 (Tenn. Ct. App. 1995). In this instance, the
financial statements provided by Mr. Powell are evidence which more strongly supported the
valuation placed on the business by Mrs. Powell’s expert, as opposed to that of Mr. Powell’s
expert.
Accordingly, we hold that the evidence does not preponderate against the trial court’s
finding that Mrs. Powell’s expert’s testimony as to the value of Mr. Powell’s interest in the check
cashing enterprise, coupled with Mr. Powell’s own representation as to that value, accurately
reflect the true value of his interest in the business. See Tenn. Rule App. P. 13(d).
Placement of Parties in Position they would have been in if Marriage had not occurred.
5
(...continued)
value of all the stores started during the marriage, as well as the increase in value of the store started prior to the
marriage, increased $2,775,000.00 during the course of the marriage. We note that the legislature has deemed “Marital
property” to include “all real and perso nal pro perty, both tangible and intangible, acq uired by either or b oth spouses
during the course of the marriage . . . .” Tenn. Cod e Ann. § 3 6-4-121 (b)(1)(A ) (Supp . 2002 ). We also note that
Appellant, who on one hand asserts that these financial statem ents are inaccurate, on the othe r hand urges this Court to
accept them as true for purp oses o f determ ining his total assets at the time o f the marriage.
6
W hile the document referred to does not state that Mr. Powell was providing the information requested under
penalty of perju ry, we no te that T enn. C ode Ann. § 39-14-120 (1997) entitled “Issuing false financial statement” provides
that:
(a) A p erson com mits the crime o f issuing a false financial statement who, with intent to defraud:
(1) Knowingly makes or utters a written instrument which p urpo rts to describe the financial
condition or ability of the person or some other person to pay and which is inaccurate in some material
respect; or
(2) R epresents in writing that a written instrument purporting to describe a person's financial
condition or ab ility to pay is accurate with respect to that person's current financial condition or ab ility
to pay, knowing or having rea son to believe the instrument to be m aterially inaccura te in that resp ect.
(b) Issuing a false financial statement is a Class B misdemeano r.
Tenn. Co de A nn. § 3 9-14 -120 (1997).
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Appellant argues that, due to the short duration of the marriage, the parties should be
placed in the position they would have been in had the marriage never taken place. Batson v.
Batson, 769 S.W.2d 849 (Tenn. Ct. App. 1988), is cited in support of this argument. We
disagree with this contention and, for the following reasons, affirm the decision of the trial court
as to the division of the interest in the check cashing business.
At the outset, we note that Appellant stresses the extent of Mrs. Powell’s contribution to
the check cashing business, claiming that her alleged lack of participation somehow negates her
right to share in the increase in value of the business. To properly address Mr. Powell’s claims
that Batson is controlling in this case, it is necessary to differentiate between the two classes of
marital property recognized by the legislature. Tenn. Code Ann. § 36-4-121(b)(1)(a) defines
“Marital property” as “all real and personal property, both tangible and intangible, acquired by
either or both spouses during the course of the marriage. . . .” Tenn. Code Ann. § 36-4-
121(b)(1)(A) (Supp. 2002). This section does not require any contribution by the spouse, merely
that the property be acquired during the marriage. However, marital property is also defined as
“income from, and any increase in value during the marriage of, property determined to be
separate property . . . .” Id. § 36-4-121(b)(1)(B) (Supp. 2002). Such property is deemed to be
marital property “if each party substantially contributed to its preservation and appreciation. . .
.” Id. Accordingly, the stores opened during the marriage are clearly marital property subject to
an equitable division, while the increase in value of the store opened prior to the marriage is
marital property subject to division if Mrs. Powell “substantially contributed to its preservation
and appreciation. . . .” Id.
The code provides that “‘substantial contribution’ may include, but is not limited to,
direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial
manager, together with such other factors as the court having jurisdiction thereof may
determine.” Id. § 36-4-121(b)(1)(D) (Supp. 2002). Therefore, it was within the trial court’s
discretion, if it found that Mrs. Powell made such a contribution, to consider any increase in
value of the store Mr. Powell owned prior to the marriage to be marital property. The trial court
found that Mrs. Powell took “active involvement in the growing of the check cashing
businesses.” The trial court also found that “[t]hough the Powells both have [sic] involvement in
starting of the stores, neither has spent a day running one.” From this statement it appears that
the trial court considered the contribution of both parties to the success of the business to be
minimal at best, but nonetheless equal. Our review of the record supports this conclusion.
As noted, Appellant appears to argue that Batson mandates that, in a marriage of short
duration, the parties be returned to the position they would have been in had the marriage never
occurred. We cannot agree that Batson mandates such a result in this case. First, we note that
Mr. Powell’s argument that the parties should be placed in the position that they would have been
in if the marriage had never occurred presupposes that he would enjoy the same financial
position today had he and Mrs. Powell never married. While this may be so, there is also
substantial evidence in the record to shed serious doubt on this contention, including a letter from
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Mr. Powell claiming that if he had not met and married Mrs. Powell that “I would probably be
dead now.”
The Batson court decided against an equal division of the marital property and instead
found that the Batsons “should, in large measure, be restored to their pre-marriage financial
condition.” Batson, 769 S.W.2d at 859. In making the property division the Batson court noted
that such a division “leaves the parties with approximately the same net worth they had prior to
the marriage and preserves, in large measure, the relationship between their respective net worths
that existed [at the time of the marriage].” Id. at 861. In the instant case, as the business at issue
is clearly marital property, which has experienced a significant increase in value during the
course of the marriage, it would be impossible to divide the marital property in a manner which
would “leave the parties with approximately the same net worth they had prior to the marriage. . .
.” Id. The trial courts division of the marital property, including the equal division of the value
of the business, does, however, “preserve the relationship between [the parties] respective net
worths” as they existed prior to the marriage. Id.Appellant’s assertions to the contrary notwithstanding, we find the rationale of Batson to
have little, if any, precedential value under the specific facts of this case. As stated in Batson,
“[a]n equitable property division is not necessarily an equal one. It is not achieved by a
mechanical application of the statutory factors, but rather by considering and weighing the most
relevant factors in light of the unique facts of the case.” Batson 769 S.W.2d at 859. The major
difference between Batson and the case sub judice is that “the majority of the marital estate in
Batson consisted of an increase in the value of Husband's separate property during the course of
the marriage.” Hofer v. Hofer, No. 02A01-9510-CH-00210, 1997 Tenn. App. LEXIS 74, at *13
(Tenn. Ct. App. Feb. 3, 1997) (no perm. app filed). In the present case, the majority of the estate
consists of the value of the stores acquired during the marriage, which are clearly marital
property. 7 Thus, while the legislature included the duration of the marriage as a factor to be
7
Batson cites the Orego n case of In re M arriage of M cInn is, 661 P.2d 942 , 943 (Or. Ct. App. 198 3), for the
proposition that “[i]n cases involving a ma rriage o f relatively sho rt duration, it is app ropriate to divide the pro perty in
a way that, as nearly as possible, places the parties in the same position they would have been in had the marriage never
taken place.” Batson, 769 S.W .2d at 859 . McInn is involved “a sho rt- term marriage of four m onths. . . .” McInn is,
661 P.2d 942 at 943. The McInn is court, in making the aforementioned statement concerning marriages of short
duratio n, cites to an other Oregon case, In re M arriage o f York , 569 P.2d 32 (Or. Ct. App.1977). The York court,
however, precedes the aforementioned generalization concerning short term marriages with the statem ent that “b oth
parties should share in the increase in value of marital assets. . . .” York , 569 P.2d at 33. Batson also cites the Oregon
case of In re M arriage o f Peru, 641 P.2d 646 (Or. Ct. App. 1982), for the proposition that “[w]hen relatively short
marriages are involved, each spouse’s contribution to the accumulation of assets during the ma rriage is an important
factor.” Batson, 769 S.W .2d at 859. It is important to note that the Peru court follows this assertion with the statement
that “[h]owever, it is also true that even in a marriage of short duration, both parties are entitled to share in any increase
in value of marital assets.” Peru, 641 P .2d at 647 (citing York , 569 P.2d at 32). Thus, a review of the cases upon which
Batson relies sup ports our d etermination that Batson is not co ntrolling in a case such as the one presented here, where
the bulk of the marital estate consists of property acquired during the course of the marriage, and the parties contributed
equally to such property’s increase in value.
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considered when dividing marital property,8 this factor is of little weight in the present case
where the parties contributed equally, albeit minimally, to the acquisition and increased value of
the subject property. Conversely, had all the stores been owned by Mr. Powell prior to the
marriage, the short duration of the marriage would carry more weight in guiding the trial court’s
decision as to what would constitute an equitable division of the business. Obviously, the longer
the marriage, the greater the opportunity for a spouse to make a “significant contribution” to the
increase in value of what was once separate property, thereby entitling the spouse to a share in
the increased value of such property.
As this case centers on the division of what is clearly marital property, which the trial
court found both parties to have contributed equally to the acquisition and increase in value of,
we find no error in the trial court’s decision to equally divide the value of the business between
the parties. The trial courts award is, therefore, affirmed.
Finding of Contempt
As part of the Final Decree of Divorce, the trial court found that
[Mr.] Powell is in violation of the status quo injunction by investing in Frontline
Security and Pinnacle Group after the injunction was issued. The Court,
therefore, awards [Mrs.] Powell one-half (½) interest in [Mr.] Powell’s interest in
each investment and orders [Mr.] Powell to assume her indebtedness, if any, and
to indemnify and hold her harmless on same.
Section 29-9-103 of the Tennessee Code Annotated sets forth the general rule regarding
punishment for contempt, as follows:
(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and
appellate courts are limited to a fine of fifty dollars ($ 50.00), and imprisonment
not exceeding ten (10) days, and, except as provided in § 29-9-108, all other
courts are limited to a fine of ten dollars ($ 10.00).
Tenn. Code Ann. § 29-9-103 (2000).
The propriety of punishment awarded for contempt is reviewed under an abuse of
discretion standard. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993)(citing Robinson v. Air
Draulics Eng'r Co., 377 S.W.2d 908, 912 (1964)).
8
“In making equitable division of marital property, the court shall consider all releva nt factors including. . . [t]he
duration of the marriage.” Tenn. Code Ann. § 36-4-121(c)(1) (Supp . 2002). W e note that, while this factor appears first,
this should not be interpreted to mean that this factor should always carry more weight than the others. The factors are
not listed in order of importance, and each is to be considered in relation to the specific facts of each case.
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The trial court in the instant case is a chancery court and thus was not authorized by Tenn.
Code Ann. section 29-9-103 to impose a fine for contempt against Mr. Powell in excess of
$50.00. As stated above, the trial court ordered Mr. Powell to surrender one-half of his interest
in the investments to Mrs. Powell, with Mr. Powell assuming her indebtedness and indemnifying
her in the case of loss. Mr. Powell argues that the trial court, in making such an award, exceeded
its authority. Mrs. Powell contends, however, that the trial court was authorized to award Mrs.
Powell one-half of Mr. Powell’s interest in said investments under Tenn. Code Ann. section
29-9-105, which provides that “[i]f the contempt consists in the performance of a forbidden act,
the person may be imprisoned until the act is rectified by placing matters and person in status
quo, or by the payment of damages.” Tenn. Code Ann. § 29-9-105 (2000) (emphasis added).
While Mrs. Powell asserts that she may suffer damages in the future as a result of these
investments, such speculation does not merit the trial court’s award, as it was not tied to any
specific damages which she has suffered as a result of Mr. Powell’s act of contempt.
Accordingly, as Mrs. Powell suffered no quantifiable damages as a result of Mr. Powell’s
actions, the trial court lacked the authority to award Mrs. Powell the relief that it did.
We agree, however, that Mr. Powell was clearly in contempt and, on remand, the trial
court may consider actions within its authority in regard to this matter.
Award of Legal Fees
In an order entered January 29, 2002, the trial court ordered that Mr. Powell pay Mrs.
Powell “her legal fees . . . together with her accounting witness fees . . . as alimony in solido.”
These costs amounted to $ 98,523.00.9 Mr. Powell asserts that the award of these fees was
improper because Mrs. Powell has the financial ability to pay these costs herself.
Attorney’s fees constitute alimony in solido, and Tenn. Code Ann. § 36-5-101(d)(2002)
sets forth the relevant factors to consider when making an alimony award. Houghland v.
Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992). Need is the critical factor to be
considered in making an award of alimony, and an award of attorney’s fees is proper when one
spouse is disadvantaged and does not have sufficient resources with which to pay attorney's fees.
Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. App. 1984); Thompson v. Thompson, 797
S.W.2d 599 (Tenn. App. 1990). As the award of witness fees also took the form of alimony,
need would also be the controlling factor in determining the propriety of an award of such fees.
In Fox v. Fox, 657 S.W.2d 747 (Tenn. 1983), our supreme court stated:
The right to an allowance of legal expenses is not absolute. It is conditioned upon a
lack of resources to prosecute or defend a suit in good faith. This rule is to enable the
wife, when destitute of means of her own, to obtain justice and to prevent its denial.
. . . If a spouse does not have separate property of her own which is adequate to
9
This figure represents $66 ,960.00 for legal fees and $31,563.00 for witness fees.
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defray the expenses of suit, certainly she should not be denied access to the courts
because she is unable to procure counsel.
Fox, 657 S.W.2d at 749 (internal citation omitted).
Additionally, “[w]here . . . the final decree does not provide funds out of which counsel
may reasonably be paid, it is in order for the Court to award to the wife as additional alimony
such amount as will reasonably enable her to pay reasonable compensation to her counsel.”
Ligon v. Ligon, 556 S.W.2d 763, 768 (Tenn. Ct. App. 1977).
In the instant case Mrs. Powell did not lack resources to prosecute her suit and the final
decree certainly provides funds out of which these attorney and witness fees may be paid. The
award of attorney’s fees and witness fees to Mrs. Powell was, therefore, in error and is reversed.
Conclusion
For the foregoing reasons we affirm the trial court’s division of marital property. We
reverse the award of attorney’s and expert witness’ fees, and the sanction imposed upon Mr.
Powell for contempt. We remand the case for further proceedings not inconsistent with this
opinion. The costs of this appeal are taxed to the Appellant, Mr. Powell, and his surety for which
execution, if necessary, may issue.
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DAVID R. FARMER, JUDGE
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