Exelon Generation Co v. Local 15 Electrical ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-4065
E XELON G ENERATION C OMPANY, LLC,
E XELON B USINESS S ERVICES C OMPANY, AND
C OMMONWEALTH E DISON C OMPANY,
Plaintiffs-Appellants,
v.
L OCAL 15, INTERNATIONAL B ROTHERHOOD OF
E LECTRICAL W ORKERS, AFL-CIO,
Defendant-Appellee.
____________
A ppeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
N o. 07 C 968— M atthew F. Kennelly, Judge.
____________
A RGUED M AY 13, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Exelon Generation Company, LLC,
Exelon Business Services Company, and Commonwealth
Edison Company (“Exelon”) filed a complaint for declara-
2 No. 07-4065
tory judgment against Local 15, International Brotherhood
of Electrical Workers, AFL-CIO (“Local 15” or “Union”),
seeking a determination that disputes over Exelon’s
changes to medical benefits for retirees are not within the
scope of the parties’ collective bargaining agreement
(“CBA”) or arbitrable under the grievance procedure
and that Local 15 may not represent the retirees. The
parties filed cross-motions for summary judgment. The
district court granted the Union’s motion and denied
Exelon’s motion, concluding that the Union may repre-
sent the retirees in arbitration and that the matter was
subject to arbitration. Judgment was entered. Exelon
appeals.
I. Background
Exelon and Local 15 are parties to a CBA. They have
engaged in collective bargaining for over fifty years and
have bargained over mandatory bargaining subjects such
as working conditions and wages as well as permissive
bargaining subjects such as retiree medical benefits that
become effective upon a bargaining unit employee’s
retirement. The terms of the retiree medical benefits have
been memorialized in Memoranda of Agreement Reached
in Collective Bargaining (“MOAs”) which supplemented
and became part of the CBA.
In January 2004, Exelon made various unilateral changes
to the retiree medical benefits. These changes immediately
affected certain retirees and may also affect current em-
ployees when they retire. This led to a dispute between
Exelon and the Union over the interpretation and applica-
No. 07-4065 3
tion of the retiree medical benefit provisions. The Union
believes that the dispute is within the scope of the CBA’s
four-step grievance procedure which states in part:
“Should any dispute or difference arise between the
Company and the Union or its members as to the inter-
pretation or application of any of the provisions of this
Agreement . . . the dispute or difference shall be settled
through the grievance procedure.” If a dispute is not
resolved at steps one through three, then at step four, at
the request of a party to the grievance, the dispute shall
be referred to arbitration. The grievance procedure
states: “All decisions rendered by the impartial arbitrator
shall be final and binding on both parties.”
On October 4, 2005, the Union filed a grievance under
step 1 of the grievance procedure, alleging that Exelon
violated the CBA and MOAs “with respect to retiree
medical plans, premiums, and prescription drug costs
for active and retired employees.” In the section entitled
“Name of Employee(s),” the Union wrote, “For the good of
the Union.” The grievance proceeded through steps 1, 2
and 3 of the grievance procedure without resolution. On
February 19, 2006, the grievance proceeded to step 4, when
the Union referred the grievance to arbitration. Exelon
participated in the selection of an arbitrator and hearing
dates. However, Exelon later argued that “retirees are not
part of the bargaining unit and Exelon does not have
an obligation to . . . bargain with Local 15 with respect
to current retirees.”
Exelon provides medical benefits to approximately 5,889
bargaining-unit retirees and their dependents. The Union
4 No. 07-4065
does not have the consent of all retirees affected by
Exelon’s changes to retiree medical benefits to represent
them in arbitration of the dispute. Seven retirees have
consented to representation by the Union in the
grievance procedure, though not in writing. No affected
retiree has filed an individual action against Exelon over
the changes to the retiree medical benefits.
On February 20, 2007, Exelon filed a complaint for
declaratory judgment, seeking a declaration that disputes
over its decisions to modify retiree medical and prescrip-
tion drug benefits are not subject to arbitration under
the CBA. The parties filed cross-motions for summary
judgment, raising two issues of arbitrability and an issue of
the Union’s standing. The district court granted the Un-
ion’s motion for summary judgment and denied Exelon’s
motion. The court first decided that the dispute between
the Union and Exelon over retiree medical benefits falls
within the scope of the grievance procedure in the CBA.
Second, it concluded that Exelon had consented to
arbitrate the underlying retiree medical benefit dispute.
And, finally, the court concluded that the Union could
represent the retirees who consented to its representa-
tion; consent of all affected retirees was not necessary
for the Union to pursue arbitration.
II. Analysis
We review de novo the district court’s decisions on the
cross-motions for summary judgment. Rickher v. Home
Depot, Inc., No. 07-2850, 2008 WL 2877515, at *3 (7th Cir.
July 28, 2008). In this case we address (1) whether Exelon
No. 07-4065 5
consented to arbitration of a dispute over retiree medical
benefits brought by the Union on behalf of retirees, and
(2) whether the Union may arbitrate a dispute under the
CBA on behalf of affected retirees when it has the
consent of a few but not all of the affected retirees.1 Before
getting to the substantive issues presented on appeal, we
must first assure ourselves that we have appellate juris-
diction.
A. Appellate Jurisdiction
A question arose at oral argument of whether a final
judgment had been entered by the district court, and we
ordered the parties to file supplemental memoranda
addressing the issue. The parties complied with the order,
and we are satisfied that we may properly exercise appel-
late jurisdiction.
“Unless the plaintiff loses outright, a judgment must
provide the relief to which the winner is entitled. That
motions have been granted is beside the point.” Rush Univ.
Med. Ctr. v. Leavitt, Nos. 07-3648, 08-2227, 2008 WL
2941220, at *1 (7th Cir. Aug. 1, 2008); see also Perlman v.
1
Exelon does not challenge the district court’s conclusion that
the dispute over retiree medical benefits falls within the scope
of the CBA’s grievance procedure. The operative provi-
sion—“any dispute or difference . . . between the Company and
the Union or its members as to the interpretation or application
of any of the provisions of this Agreement . . . shall be settled
through the grievance procedure”—easily encompasses this
dispute.
6 No. 07-4065
Swiss Bank Comprehensive Disability Prot. Plan, 195 F.3d 975,
977 (7th Cir. 1999); Reytblatt v. Denton, 812 F.2d 1042, 1044
(7th Cir. 1987). A judgment must “specify what matters:
the consequence of the judicial ruling.” Rush Univ. Med. Ctr.,
2008 WL 2941220, at *1. If, however, the final disposition of
the case can easily be inferred, then the appeal may go
forward “despite technical shortcomings.” Id.; see also Metzl
v. Leininger, 57 F.3d 618, 620 (7th Cir. 1995) (“If it is plain
what the judgment declares . . . and it is also plain that the
district court is finished with the case . . . there is appellate
jurisdiction.”); Alpine State Bank v. Ohio Cas. Ins. Co., 941
F.2d 554, 559 (7th Cir. 1991) (concluding appellate jurisdic-
tion existed even though district court did not technically
enter a declaration of the parties’ rights but intended to
enter a final judgment).
Exelon filed a complaint for declaratory judgment,
seeking a declaration that disputes over its decisions to
modify retiree medical and prescription drug benefits
are not subject to arbitration under the CBA. The Union
filed an answer, and the parties filed cross-motions for
summary judgment. On December 3, 2007, the district
court entered three documents on its docket. It entered
its Memorandum Opinion and Order in which it deter-
mined that plaintiffs were not entitled to the declaratory
relief sought in their complaint and directed the clerk to
enter judgment in favor of the defendant. The court also
entered a Minute Order which said:
For the reasons set forth in the Memorandum
Opinion and Order, the Court grants defendant’s
motion for summary judgment (34) and denies
No. 07-4065 7
plaintiffs’ motion for summary judgment (39).
Defendant’s motion to compel discovery is termi-
nated as moot (29). The clerk is directed to enter
judgment in favor of the defendant.
And, finally, the clerk entered a document entitled “JUDG-
MENT IN A CIVIL CASE,” which read:
Decision by Court. This action came to trial or
hearing before the Court. The issues have been
tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that
the Court grants defendant’s motion for sum-
mary judgment and denies plaintiffs’ motion for
summary judgment. Judgment is entered in favor
of the defendant.
Although it would have been clearer had the judgment
indicated that the plaintiffs would take nothing and that
the case was dismissed, the failure to include this language
does not render the judgment non-final and unappealable.
See McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 679 (7th
Cir. 2002). Unlike American Interinsurance v. Occidental Fire
& Casualty Co., 835 F.2d 157 (7th Cir. 1987), in which both
sides sought declaratory relief and thus the final judg-
ment had to include a declaration of rights, here, only
Exelon sought a declaratory judgment. The Union neither
filed a counterclaim nor sought any declaration of the
parties’ rights. And although the Union filed its own
motion for summary judgment, it merely sought a judg-
ment against Exelon on the complaint for declaratory
relief. Furthermore, the district court’s Minute Order,
Memorandum Opinion and Order, and Judgment in a Civil
Case together indicate that there is nothing left to be
8 No. 07-4065
decided and that court is done with the case. The judgment
itself is clear that the plaintiff Exelon loses; judgment is
for the defendant Local 15. Therefore, the judgment is
final and we have appellate jurisdiction. We thus move
on to the merits of the appeal.
B. Exelon’s Consent to Arbitrate Disputes
Over Retiree Medical Benefits
Exelon contends that it did not agree to arbitrate a
grievance brought by the Union on behalf of retirees. The
district court concluded otherwise. The court reasoned
that because the CBA includes provisions that apply
specifically to retirees,
when the CBA says that disputes over its interpre-
tation or application are subject to arbitration, that
necessarily includes disputes over retiree rights
that the CBA confers. In short, by entering into a
CBA that included terms according rights to
retirees as well as a broad obligation to engage in
arbitration over disputes about the CBA, [Exelon]
consented to arbitration of grievances brought on
behalf of retirees.
The court also relied on the presumption of arbitrability,
requiring an express provision or forceful evidence to
exclude the retiree grievance from arbitration. We have
said:
“[W]here the contract contains an arbitration
clause, there is a presumption of arbitrability in the
sense that [a]n order to arbitrate the particular
No. 07-4065 9
grievance should not be denied unless it may be
said with positive assurance that the arbitration
clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be
resolved in favor of coverage.”
Int’l Bhd. of Elec. Workers, Local 21 v. Ill. Bell Tel. Co., 491
F.3d 685, 687-88 (7th Cir. 2007) (quoting AT&T Techs., Inc.
v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (inter-
nal quotations omitted)).
Exelon argues that Rossetto v. Pabst Brewing Co., 128 F.3d
538 (7th Cir. 1997), compels a different conclusion than
that reached by the district court. The CBA in Rossetto
provided for health benefits for retired employees and
their dependents, id. at 538, and the CBA’s arbitration
provision provided for appeal to arbitration of “all griev-
ances . . . between the Company and its employees” that
“that cannot be satisfactorily settled” by the grievance
process. Id. at 539 (emphasis added). Pabst unilaterally
eliminated retiree health benefits and the union filed a
grievance on behalf of the affected retirees, alleging a
breach of the CBA. The union also filed a civil action on
behalf of all the retirees, seeking reinstatement of the
terminated benefits. The union eventually appealed the
grievance to arbitration, and Pabst refused to arbitrate.
The district court certified a class consisting of all the
retirees, their spouses, and dependents, who were repre-
sented by the union. The plaintiffs sought to compel
arbitration of the union’s grievance, their motion was
granted, and Pabst appealed. Id. We held that the union
lacked standing to represent the retirees in arbitration
10 No. 07-4065
unless the retirees consented to the union’s representa-
tion and Pabst consented to bargain with the union as the
agent of the affected retirees. Id. at 541.
Exelon is correct that the mere fact that a CBA creates
the retirees’ rights to medical benefits may be insufficient
to establish that the company agreed to arbitrate disputes
over retiree medical benefits. We know as much from
Rossetto. After all, the CBA there provided for retiree
health benefits, but this was insufficient by itself to sup-
port the conclusion that Pabst agreed to arbitrate retiree
claims. But there is a critical distinction between the CBA
in Rossetto and the one in this case: The CBA in Rossetto
expressly defined an arbitrable grievance as one between
Pabst and an “employee.” And retirees are not employees.
Id. at 540. The CBA here, however, does not define an
arbitrable grievance as one between the company and an
employee. Nor does the CBA in this case expressly restrict
arbitration to grievances by employees. The arbitration
agreement is broader than that. The grievance procedure
applies to “any dispute or difference . . . between the
Company and the Union or its members as to the inter-
pretation or application of any of the provisions of this
Agreement . . . .” Exelon has agreed that a dispute exists
between it and the Union regarding the interpretation
and application of the retiree medical benefit provisions
of the MOAs, which are part of the CBA.
Exelon contends that the CBA contains specific language
plainly limiting the grievance procedure to disputes
brought by the Union on behalf of current employees. For
example, Exelon points to the following: “It is the intent
No. 07-4065 11
of the Company, Local Union 15, and the employees that
timely filed grievances shall be settled promptly” (empha-
sis added); the deadline for filing a grievance runs from
the date that the “employee became aware or reasonably
should have become aware of the incident which is the
basis for the grievance” (emphasis added); and “[t]he
dispute or difference shall be presented and first dis-
cussed by the employee concerned and the immediate
Supervisor.” (Emphasis added). None of these provisions,
however, or any other provision in the CBA we might
add, expressly excludes from arbitration a grievance
brought by the Union on behalf of retirees. The parties
could have written the CBA to exclude retiree grievances
from the arbitration agreement if they had intended to,
but they did not.
Exelon also points to the CBA’s representation and
recognition clause, which it claims demonstrates the
parties’ intent that the grievance provisions apply only
to current employees and not retirees. That clause recog-
nizes the Union as the “exclusive bargaining representative
for all employees in” the bargaining unit. However, it
does not follow from the fact that Exelon recognizes the
Union as the exclusive bargaining representative for
bargaining unit employees that Exelon could never recog-
nize the Union as the representative of retirees in arbitra-
tion. The clause does not clearly limit Exelon’s agreement
to arbitrate to disputes involving only current employees.
Any doubt about whether Exelon agreed to arbitrate
disputes brought on behalf of retirees is resolved by
application of the presumption of arbitrability. “[A]rbitra-
12 No. 07-4065
tion is favored and should be ordered ‘unless it may be
said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted
dispute.’ ” Niro v. Fearn Int’l, Inc., 827 F.2d 173, 175 (7th Cir.
1987) (quoting United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83 (1960)). “Doubts
should be resolved in favor of coverage.” Warrior & Gulf
Navigation Co., 363 U.S. at 583. The presumption of
arbitrability is particularly applicable where the arbitra-
tion provision is broad. United Steelworkers v. Cooper Tire &
Rubber Co., 474 F.3d 271, 279 (6th Cir. 2007). Where the
arbitration provision is broad, as it is here, only an “ ‘ex-
press provision excluding a particular grievance from
arbitration . . . [or] the most forceful evidence of a
purpose to exclude the claim from arbitration’ ” can keep
the claim from arbitration. AT&T Techs., 475 U.S. at 650
(quoting Warrior & Gulf, 363 U.S. at 584-85). Several of
our sister circuits have applied the presumption of
arbitrability to disputes involving retirees. United Steel-
workers of Am. v. Retirement Income Plan for Hourly-Rated
Employees of Asarco, Inc., 512 F.3d 555, 560-61 (9th Cir. 2008)
(applying presumption of arbitrability where union sought
arbitration and filed a complaint to compel arbitration);
Cleveland Elec. Illuminating Co. v. Util. Workers Union, 440
F.3d 809, 816 (6th Cir. 2005) (“[T]he presumption of
arbitrability applies to disputes over retirees’ benefits if the
parties have contracted for such benefits in their
[CBA]. . . .”); United Steelworkers of Am., AFL-CIO v. Canron,
Inc., 580 F.2d 77, 82 (3d Cir. 1978) (applying presumption).
But see Anderson v. Alpha Portland Indus., Inc., 752 F.2d
1293, 1295-98 (8th Cir. 1985).
No. 07-4065 13
We will apply the presumption of arbitrability here as
well. First of all, as noted, the arbitration provision is
quite broad. The grievance and arbitration procedure
covers “any dispute . . . as to the interpretation or applica-
tion of any of the provisions of this Agreement” and the
retiree medical benefits are created by provisions of the
MOAs, which have supplemented and become part of the
CBA. And it was the Union rather than the retirees that
filed the grievance asserting a violation of the CBA and
MOAs with respect to retiree medical benefits. Further-
more as Exelon concedes, the dispute is between the
Union and Exelon. And the Union may resort to its eco-
nomic weapons—it also represents the bargaining unit’s
interests in maintaining retiree medical benefits. These
considerations counsel in favor of applying the presump-
tion of arbitrability. See Asarco, 512 F.3d at 560-61; Cleveland
Elec. Illuminating Co., 440 F.3d at 816.
Moreover, the CBA contains no express provision
excluding retiree grievances from the grievance and
arbitration procedure. The language cited by Exelon, supra,
is neither clear nor “forceful evidence” of a purpose to
exclude a dispute over retiree medical benefits from
the grievance and arbitration procedure. An interpreta-
tion of the arbitration language so as to include disputes
between Exelon and the Union over retiree medical
benefits is a reasonable one given the breadth of the
grievance and arbitration procedure. And where both the
Union’s and Exelon’s competing interpretations are
reasonable, it cannot be said with “positive assurance”
that the grievance and arbitration procedure is not suscep-
14 No. 07-4065
tible to an interpretation that covers the dispute over
retiree medical benefits. Therefore, we find no error in
the district court’s conclusion that Exelon consented to
arbitrate disputes over retiree medical benefits.
C. Whether the Union May Represent
a Few Retirees in Arbitration
The Union has the consent of a few, but not all, of
the current retirees affected by Exelon’s changes to
retiree medical benefits. Exelon contends that in Rossetto
we held that a union may not represent any retiree in
arbitration unless it obtains consent from all the affected
retirees to represent them. Exelon again misunderstands
Rossetto. In Rossetto we recognized that the union was not
the exclusive bargaining representative of the retirees.
Thus the retirees’ claims “for benefits [] belong to the
retirees individually, and the retirees may deal directly
with Pabst in pursuing such claims.” Rossetto, 128 F.3d at
540. But we did not foreclose the possibility of union
representation of retirees in arbitration. We said:
This is not to say that a union can never take
retirees’ claims to arbitration. Although a union
has no duty to represent retirees, and retirees need
not submit to union representation, retirees are
free to make a union their agent if they so choose.
And, of course, retiree benefits are a permissive
subject of bargaining—a union may bargain for
retirees if the employer agrees. What we are saying
is that any right District 10 has to pursue arbitra-
No. 07-4065 15
tion of the retirees’ grievance must come from the
retirees.
Id. (internal citations omitted). We concluded that the
union did “not have any right to represent the retirees
making up the class in this case unless each of the retirees
assents to its representation.” Id. at 541. The record
lacked any evidence that each of them had consented;
thus, we held that the union lacked standing to arbitrate
the retirees’ grievance. Id.
However, in Rossetto the retirees’ litigation seeking
reinstatement of their terminated retiree benefits and the
union’s appeal to arbitration of its grievance over the
elimination of those benefits were proceeding simulta-
neously. The district court certified a class consisting of
all retirees, and the union and four retirees were named
as class representatives. Id. at 539. The union argued that
the litigation and the arbitration could proceed on parallel
paths. Id. at 540. This argument was rejected:
The implication of allowing District 10 to take the
retirees’ grievance to arbitration is that none of the
forty-one retirees making up the class can pursue
separate litigation of their statutory claims. If
District 10 loses in arbitration, the retirees lose,
period.
. . . The retirees[’] . . . ERISA claims . . . are not free-
standing—for practical purposes, arbitration
would dispose of all of the retirees’ claims. District
10 cannot hijack the retirees’ right to pursue their
statutory claims by forcing arbitration.
16 No. 07-4065
Id. at 540-41. Importantly, the litigation and arbitration
involved the same parties and the same claims asserted
by the retiree class in litigation and by the union purport-
edly on the retirees’ behalf in arbitration. It was in this
context of parallel proceedings that we said that the
union could not force the retirees to arbitrate their claims.
Here, in contrast, the Union is not seeking to arbitrate
claims regarding retiree medical benefits on behalf of
retirees while those same retirees are simultaneously
litigating claims over those benefits in court. The district
court was correct in declining to read Rossetto as requiring
the consent of each and every affected retiree in this
context in order to give effect to a single retiree’s agree-
ment to arbitrate his or her claim. To require the consent
of all in effect would allow those retirees who choose not to
consent to the Union’s representation in arbitration to
“hijack” the rights of the retirees who do consent to
such representation and arbitration. See id. at 540 (ex-
plaining “retirees are free to make a union their agent if
they so choose”).
Any doubt about the reach of Rossetto can be resolved
by consideration of Pryner v. Tractor Supply Co., 109 F.3d 354
(7th Cir. 1997), upon which Rossetto relied. In Pryner
we considered whether a CBA can compel an employee
to arbitrate a claim that he may have under a federal statute
such as a Title VII claim. Id. at 355. We held that
the union could not agree on the employees’ behalf to
arbitrate their Title VII claims. Id. at 363. But we did not
hold that the employees’ statutory claims were never
arbitrable: they were if the employee consented to arbitra-
No. 07-4065 17
tion. We said: “If the worker brings suit, the employer
suggests that their dispute be arbitrated, the worker
agrees, and the collective bargaining agreement does not
preclude such side agreements” the employee’s claims
are arbitrable. Id. Thus, neither Pryner nor Rossetto re-
quires that all employees/retirees consent to arbitration
before the consent of one employee/retiree can be given
effect. These cases allow for each employee or retiree
individually to decide whether to consent to arbitration of his
or her own claims. Pryner further indicates that where the
employee/retiree and employer/former employer agree to
arbitration, “there is nothing to prevent a binding arbitra-
tion.” Id.; see also Cooper Tire & Rubber Co., 474 F.3d at 283
(finding “there is no real danger that Cooper would have to
relitigate the same issues with individual retirees that will
have already been arbitrated with the Union”); IDS Life Ins.
Co. v. Royal Alliance Assocs., 266 F.3d 645, 651 (7th Cir. 2001)
(stating that dispute resolved by arbitrators was closed to
further litigation by res judicata and collateral estoppel); cf.
Meza v. Gen. Battery Corp., 908 F.2d 1262, 1280 (5th Cir. 1990)
(holding that former employee’s lawsuit was not barred by
res judicata by union’s prior suit where employee was not a
party to the prior suit, as a former union member was not in
privity with the union, and never authorized the union to
represent his interest in prior suit).
In this case, the arbitrator’s decision would be final
and binding as to the parties to the arbitration, which is
all that the CBA contemplates. Exelon’s assertion that
arbitration of the claims of a few retirees would not result
in a final resolution of the dispute as required by the CBA
is incorrect. The arbitrator’s decision would be final and
binding on the parties to the arbitration. The CBA does not
18 No. 07-4065
purport to bind non-parties to the arbitration, and for
good reason. As a general rule, one is not bound by a
judgment in an action in which he is not a party. Hansberry
v. Lee, 311 U.S. 32, 40 (1940). That is not to say, though, that
the arbitrator’s interpretation of the CBA might not be given
weight in a subsequent proceeding, if any, brought by
retirees who have not consented to the Union’s representa-
tion in arbitration. But this alone is not enough to negate the
retirees’ consent to the Union’s representation and arbitra-
tion. The potential for weight to be given the arbitrator’s
interpretation would also exist if the arbitration were to
proceed in the absence of the interests of the retirees. The
Union’s grievance is brought on behalf of both retired and
active employees and seeks to enforce rights not only of the
retirees but also of the active employees’ interest in retiree
benefits. And the Union’s right to arbitrate the active employ-
ees’ grievance over retiree medical benefits has not been
challenged. We find no error in the district court’s conclu-
sion that the Union may arbitrate on behalf of the seven
affected retirees who have consented to the Union’s repre-
sentation.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
judgment.
9-2-08