In re Marriage of Boyd CA4/1 ( 2014 )

Filed 6/13/14 In re Marriage of Boyd CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of ELIZABETH A.
BOYD and BRADLEY A. BOYD.
D064281
ELIZABETH A. BOYD,
Appellant, (Super. Ct. No. D473583)
v.
BRADLEY A. BOYD,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Susan D.
Huguenor, Judge. Affirmed.
Stephen M. Bishop for the Appellant.
Hargreaves & Taylor and Elizabeth Anne Kreitzer; Stanwood C. Johnson for the
Respondent.
Appellant Elizabeth Boyd appeals from a judgment awarding her former husband,
respondent Bradley Boyd, $28,502.50 in principal and interest plus $2,500 in attorney
fees, on Bradley's1 claim for indemnification arising from their respective obligations on
a loan and mutual releases in their marital settlement agreement (settlement agreement).
Elizabeth contends the judgment should be reversed because (1) Bradley did not meet a
condition precedent to invoke the hold harmless provision in the settlement agreement;
(2) the family court erred by awarding Bradley more than the amount of actual loss or
damage he incurred; (3) the court erred by awarding Bradley attorney fees because he did
not incur them in good faith; and (4) Bradley breached his fiduciary duty to Elizabeth
under the settlement agreement. We conclude Elizabeth forfeited the latter two
arguments by failing to raise them in the family court, and her other contentions, which
we independently address as questions of law, lack merit. Accordingly, we affirm the
judgment.
1 As is customary in family law cases, we refer to the parties and other family
members by their first names for clarity, and not out of disrespect. (See Kuehn v. Kuehn
(2000) 85 Cal.App.4th 824, 828, fn. 2.)
2
FACTUAL AND PROCEDURAL BACKGROUND2
Bradley and Elizabeth were married in 1989. In March 2003, Bradley and
Elizabeth obtained a judgment of dissolution of their marriage, which incorporated the
settlement agreement. Under the settlement agreement, Bradley and Elizabeth each
assumed one half of a $47,500 loan owed to Bradley's mother, Joyce Boyd, and agreed to
"pay, assume, and hold [the other] free and harmless from" that obligation, as well as
defend and indemnify the other against "any claim, action or proceeding . . . brought
seeking to hold [the other] liable for any of [his or her] debts, liabilities, acts or
omissions . . . ."
Several sections of the settlement agreement contain indemnity language. The
"Community Property" section of the settlement agreement states in part: "Wife shall
pay, assume, and hold Husband free and harmless from all obligations listed in Exhibit
'B[,]' " which included Elizabeth's loan obligation to Joyce. A "Mutual Releases" section
contains defense and indemnity provisions, which states with regard to Elizabeth: "Wife
2 We set out the facts from the original and augmented clerk's transcript, viewing
the evidence favorably to Bradley as the prevailing party. "[T]he applicable standards of
appellate review of a judgment based on affidavits or declarations are the same as for a
judgment following oral testimony: We must accept the trial court's resolution of
disputed facts when supported by substantial evidence; we must presume the court found
every fact and drew every permissible inference necessary to support its judgment, and
defer to its determination of credibility of the witnesses and the weight of the evidence."
(Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.) This court gave Elizabeth's counsel an
opportunity to cure defects in Elizabeth's opening brief by filing an augmented brief.
However, with the exception of one cite to the clerk's transcript regarding the amount of
Bradley's actual payments on the debt at issue, Elizabeth's augmented brief contains no
record citations for its factual summary, and appears substantively identical to her
original brief. We are entitled to disregard contentions not supported by citations to the
record on appeal. (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)
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covenants, except as may be expressly provided otherwise in this Agreement, that if any
claim, action or proceeding shall hereafter be brought seeking to hold Husband liable for
any of her debts, liabilities, acts or omissions, she shall, at her sole expense, defend him
against any such claim or demand (whether or not well founded) and that she shall
indemnify him and hold him free and harmless from all costs, expenses and liabilities in
connection therewith." Another clause entitled "Hold Harmless Provisions" reads in part:
"In the event a party to this Agreement is required to pay and hold the other party
harmless from some debt, and the party fails to hold the other party harmless from the
debt, then the other party may pay some or all of the debt and deduct the payment from
any monies owed by the other party to the party who breached this covenant to hold the
other party harmless." The hold harmless clause prohibits a party from paying a debt
without giving written notice to the other party, and requires that the party giving such
notice wait seven days from the date of notice before paying any debt. The settlement
agreement also contains a clause entitling the prevailing party to recover reasonable
attorney fees in an action to enforce any of the settlement agreement's provisions.
In 2006, Elizabeth filed for Chapter 7 bankruptcy protection, listing Joyce as a
creditor. A few months later, an attorney representing Bradley informed Elizabeth's
bankruptcy counsel that Joyce had made a demand on Bradley for repayment of the entire
obligation as a result of the bankruptcy filing, and that Bradley's indemnification claim
4
was not dischargeable under section 523(a)(15) of title 11 of the United States Code.3 In
January 2007, Elizabeth's obligation to Joyce in the amount of $32,118 was discharged.
However, Elizabeth through counsel advised Joyce that she intended to fulfill her
obligation notwithstanding the fact she listed the unsecured debt on her bankruptcy
schedules. Elizabeth sent Joyce four payments amounting to $650, but stopped making
payments in March 2008.
Joyce sued Bradley to collect on the debt, and in September 2011, the superior
court entered a $24,785.50 judgment by default against Bradley in that action.
Thereafter, Bradley unsuccessfully communicated with Elizabeth to resolve the matter of
her agreement in their judgment of dissolution to indemnify him on their debts.
In April 2013, Bradley sought an order in the family court to enforce the
settlement agreement's indemnity provision, modify spousal support, and recover his
attorney fees and costs. He asked the court to order Elizabeth to pay him $24,785.50 in
principal and $3,511.28 in interest that had accrued through February 28, 2013, monthly
interest of $206.55 from March 1, 2013, and his attorney fees and costs.
3 The December 2006 letter from attorney Radmilla Fulton pointed to the settlement
agreement's defense and indemnity language and the hold harmless provision. Fulton
wrote: "Please accept this letter as notice pursuant to the provisions of the Marital
Settlement Agreement that Mr. Boyd makes a demand that your client hold him harmless
and indemnify him against the claim of Joyce Boyd. Further, pursuant to the provisions
of the Marital Settlement Agreement, this letter is intended to give your client notice that
Mr. Boyd intends to pay Joyce Boyd by offsetting the past due support due to your client,
again, pursuant to the terms of the Marital Settlement Agreement. My understanding is
that the payments on the past due support in the amount of $350 per month would not
commence to your client until about February 1, 2007, when Mr. Boyd completes
payments to her dissolution counsel. Thus, this offset will not take place until the
automatic stay has been dissolved and this bankruptcy completed."
5
In response, Elizabeth submitted a declaration asserting that Joyce had been
notified about her bankruptcy and had an opportunity to, but did not, challenge the
discharge. Pointing out Joyce had not pursued Bradley for the debt until more than four
and a half years after the debt was discharged in bankruptcy, Elizabeth stated that Joyce
had "no legal right" to sue Bradley for any portion of Elizabeth's debt because there was
no longer a valid debt.
Bradley replied in a sworn declaration that he and Elizabeth were jointly and
severally liable for the debt to his mother, and Elizabeth's discharge did not absolve him
of paying the debt in its entirety. He pointed out Elizabeth had promised his mother that
she would make payments on the debt, and did make partial payments, resulting in his
mother's inaction. He stated he had incurred $1,842.50 in attorney fees, and anticipated
another three hours of his attorney's time on the matter. He asked the court to order
Elizabeth to contribute $2,500 toward his attorney fees for her refusal to follow the
judgment.
The family court heard arguments on the matter, including from Elizabeth, who
represented herself. She argued the same points raised in her declaration: that her
bankruptcy discharged the debt to Joyce, who was on notice of the bankruptcy
proceeding but did not contest it, and who waited over four and a half years to file an
action to collect on the debt. Elizabeth argued a debtor could make voluntary payments
on the debt even after discharge, and she did so to Joyce because Joyce was a close
family member. She asked that Bradley pay his own attorney fees "because this matter
was pursued on his own volition."
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The family court ordered that judgment be entered in Bradley's favor in the total
amount of $28,502.50, consisting of $24,785.50 in principal plus $3,717 in interest. It
ordered Elizabeth to contribute $2,500 toward Bradley's attorney fees. It set spousal
support to zero effective March 1, 2013.
Elizabeth filed this appeal from the April 23, 2013 judgment.
DISCUSSION
I. Elizabeth's Argument as to the Hold Harmless Provision of the Settlement Agreement
Elizabeth contends that the judgment based on indemnification was improper
because under the circumstances, Bradley never satisfied a condition precedent to invoke
the hold harmless provision of the settlement agreement. Specifically, she maintains
Bradley was prohibited from paying any debt without first giving her notice and waiting
seven days to allow her to assert a legal defense. She also argues that "public policy and
existing case law" prohibited Bradley from withholding child support to satisfy her
portion of the debt, as his attorney had proposed in her December 2006 demand letter.
Bradley initially responds by asserting Elizabeth has forfeited her contentions by failing
to raise these arguments in the trial court, and by relying on new theories.
We cannot agree, however, that Elizabeth has forfeited her argument concerning
the condition precedent of notice and the waiting period. Concededly, "[a]s a general
rule, theories not raised in the trial court cannot be raised for the first time on appeal.
This is a matter of fundamental fairness to both the trial court and opposing parties."
(City of Scotts Valley v. County of Santa Cruz (2011) 201 Cal.App.4th 1, 28.) But
"[t]here are exceptions to this rule, including where a new theory pertains only to
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questions of law based on undisputed facts. [Citation.] . . . [E]ven then, whether an
appellate court will entertain a new theory raised for the first time on appeal is strictly a
matter of discretion. [Citation.] Moreover, where a new theory contemplates a factual
situation that is ' "open to controversy" ' and was not placed at issue in the trial court, it
cannot be advocated on appeal. [Citation.] Likewise, when a party bears some
responsibility for the claimed error, they are generally estopped from taking a different
position on appeal or are deemed to have waived the error." (Id. at pp. 28-29; see also
Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1141.)
Here, the facts are not in dispute, and because the parties did not present
conflicting evidence of their intent as to the scope and nature of the release or hold
harmless language, interpretation of the settlement agreement is a matter of law. (City of
Hope Nat. Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395; Salehi v.
Surfside III Condominium Owners' Assn. (2011) 200 Cal.App.4th 1146, 1159; see ASP
Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1267 [where extrinsic
evidence is not in conflict, construction of an agreement is a question of law for
reviewing court's independent review].) Elizabeth's argument—that a condition
precedent to the hold harmless clause was not satisfied by Bradley's failure to give notice
of his intention to pay on the debt—does not depend on a factual situation that is open to
controversy.
Interpreting the settlement agreement independently on the facts presented, we
conclude Elizabeth's arguments lack merit. As Bradley correctly points out, there were
several indemnity provisions in the settlement agreement, not merely the hold harmless
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provision requiring notice and a waiting period. He argues he relied on the express
indemnity and defense provisions in the "Community Property" and "Mutual Releases"
sections, neither of which required notice to Elizabeth. But even assuming the "Hold
Harmless Provision" clause's notice and waiting period requirement encompassed all of
the defense and indemnity provisions in the settlement agreement, the record shows
Bradley gave Elizabeth notice of his intent to pay Joyce's debt in December 2006.
Elizabeth further argues that, as a matter of public policy, Bradley's December
2006 notification did not trigger the hold harmless clause, because he proposed at the
time to offset his past due support owed to Elizabeth. She relies on authorities assertedly
holding that a premarital agreement or marital settlement agreement may not abridge
statutory child support obligations. We have no quarrel with the proposition that a child's
right to support cannot be abridged by his or her parents, and a waiver of a child support
obligation by either parent is void or unenforceable. (See County of Orange v. Smith
(2002) 96 Cal.App.4th 955, 962; In re Marriage of Crosby & Grooms (2004) 116
Cal.App.4th 201, 210 [clause in marital settlement agreement held unenforceable as it
required application of Idaho law serving to limit father's child support obligation]; In re
Marriage of Ayo (1987) 190 Cal.App.3d 442, 448-449; Avila v. Leonardo (1942) 53
Cal.App.2d 602, 608.) In Avila v. Leonardo, for example, the appellate court affirmed a
family court's ruling that a wife's agreement upon remarriage to hold husband harmless
from his child support obligation did not forfeit the minor children's right to support, and
her remarriage did not terminate father's obligation to pay court ordered child support
payments. (Avila, 53 Cal.App.2d at pp. 606-608.) The problem with Elizabeth's
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argument, however, is that there is no evidence in the record that Bradley actually
withheld past support due to Elizabeth in satisfaction of Joyce's debt under the settlement
agreement's hold harmless provision. But we need not address the matter because it is a
factual question whether Bradley in fact used the hold harmless provision in the
settlement agreement to offset past due support so as to render that provision
unenforceable, and Elizabeth's failure to raise it in the trial court forfeited it. (City of
Scotts Valley v. County of Santa Cruz, supra, 201 Cal.App.4th at pp. 28-29; City of San
Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493.)
II. Elizabeth's Challenge to the Judgment on Grounds it Awards More Than Bradley's
Loss or Damage
Elizabeth next contends the trial court erred in awarding Bradley the entire amount
of the debt plus interest because the evidence showed he had only so far paid $3,080 on
the debt owed to Joyce. She maintains that under Civil Code section 2778, subdivision
(2),4 an obligation to protect an indemnitee from a loss accrues only when the indemnitee
4 Civil Code section 2778 provides: "In the interpretation of a contract of
indemnity, the following rules are to be applied, unless a contrary intention appears: [¶]
1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person
indemnified is entitled to recover upon becoming liable; [¶] 2. Upon an indemnity against
claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the
person indemnified is not entitled to recover without payment thereof; [¶] 3. An
indemnity against claims, or demands, or liability, expressly, or in other equivalent terms,
embraces the costs of defense against such claims, demands, or liability incurred in good
faith, and in the exercise of a reasonable discretion; [¶] 4. The person indemnifying is
bound, on request of the person indemnified, to defend actions or proceedings brought
against the latter in respect to the matters embraced by the indemnity, but the person
indemnified has the right to conduct such defenses, if he chooses to do so; [¶] 5. If, after
request, the person indemnifying neglects to defend the person indemnified, a recovery
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pays a legal obligation; that recovery under an indemnity agreement is measured by the
amount of actual loss sustained by the indemnitee, and Bradley's actual loss was only the
amount he had already paid Joyce. She argues that the terms of the settlement agreement
required one party or the other to pay some or all of the debt.
Resolution of Elizabeth's contention requires us to decide whether the settlement
agreement contains provisions for indemnity against loss or damage, or indemnity against
liability, or both. (See Alberts v. American Cas. Co. of Reading, Pa. (1948) 88
Cal.App.2d 891, 898.) In Alberts, the court explained: "There are two classes of
contracts of indemnity. In one class the indemnitor engages to save the indemnitee from
loss, meaning actual loss. In the other class the indemnitor engages to save the
indemnitee from liability. In the first class the indemnitee must prove loss actually
suffered by him. In a case of a loss by the indemnitee of money held as bailee the
indemnitor's liability for the loss does not arise until the debt has been paid and the
indemnitee has thus suffered a loss. [Citations.] In the second class the indemnitee need
not prove actual loss but only that he has become liable. The indemnitee may, without
having paid anything, recover from the indemnitor as soon as liability is legally imposed.
[Citations.] [¶] The same instrument may indemnify against actual loss and against
against the latter suffered by him in good faith, is conclusive in his favor against the
former; [¶] 6. If the person indemnifying, whether he is a principal or a surety in the
agreement, has not reasonable notice of the action or proceeding against the person
indemnified, or is not allowed to control its defense, judgment against the latter is only
presumptive evidence against the former; [¶] 7. A stipulation that a judgment against the
person indemnified shall be conclusive upon the person indemnifying, is inapplicable if
he had a good defense upon the merits, which by want of ordinary care he failed to
establish in the action."
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liability. [Citations.] Liability is established upon the rendition of a judgment against the
indemnitee with respect to the thing indemnified although the judgment remains unpaid.
[Citations.] The form which the litigation takes is of no importance so long as the
liability of the indemnitee is established. . . . [T]he undertaking of the indemnitor may
not be extended by construction or implication beyond the terms of the contract."
(Alberts, at pp. 898-899.)
Thus, in Alberts, the appellate court held that language in a contract indemnifying
plaintiffs " 'against any loss of money . . . belonging to the Insured, or in which the
Insured had a pecuniary interest, or for which the Insured is legally liable, or held by the
Insured in any capacity whether the Insured is legally liable therefor or not, which the
insured shall sustain' " was an agreement to indemnify against liability as well as actual
loss. (Alberts v. American Cas. Co. of Reading, Pa., supra, 88 Cal.App.2d at pp. 898,
900.) The court explained that because the contract was one against liability, the
defendant became liable to the plaintiffs for a third party's loss of money upon a
determination of the plaintiff's liability to the third party by a judgment. (Id. at pp. 900-
901; see also Showers v. Wadsworth (1889) 81 Cal. 270, 273-274 [judgment in favor of
sheriff on contract indemnifying sheriff against liability upheld where sheriff's liability to
claimants was "conclusively established" by judgments; the court rejected the defendant's
claim that no liability was incurred by the sheriff]; Moore v. Sleeper (1894) 102 Cal. 277,
279.)
"Courts interpret contractual indemnity provisions under the same rules governing
other contracts, with a view to determining the actual intent of the parties." (Maryland
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Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864; see also Gribaldo,
Jacobs, Jones & Associates v. Agrippina Versicherunges A.G. (1970) 3 Cal.3d 434, 442;
Wilshire–Doheny Associates, Ltd. v. Shapiro (2000) 83 Cal.App.4th 1380, 1396
[indemnity agreements are " 'interpreted according to the language and contents of the
contract as well as the intention of the parties as indicated by the contract. [Citation.]
The extent of the duty to indemnify is determined from the contract' "].) Moreover, "the
provisions of [Civil Code] section 2778, prescribing the rules for interpreting indemnity
agreements, are as much a part of such instrument as those set out therein, unless a
contrary intention appears." (Gribaldo, 3 Cal.3d at p. 442.) In the absence of extrinsic
evidence, the interpretation of the contract in light of the statute is a question of law. (Id.
at p. 445; see United States Elevator Corp. v. Pacific Investment Co. (1994) 30
Cal.App.4th 122, 125.)
Here, the settlement agreement requires Elizabeth to "indemnify [Bradley] and
hold him free and harmless from all costs, expenses and liabilities in connection [with]"
any "claim, action or proceeding . . . seeking to hold Husband liable for any of her
debts . . . ." (Italics added.) The clause explicitly provides for defense and indemnity
against both liabilities and actual loss. Thus, it falls under Civil Code section 2778,
subdivision (1), entitling Bradley to "recover upon becoming liable," not subdivision (2),
as Elizabeth contends. (See footnote 4, ante.) As a consequence, Bradley's payment of
the judgment to Joyce was not required prior to his seeking indemnification. (Accord,
CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1054
[provision reading in part that subcontractor " 'shall indemnify, defend and save harmless
13
Contractor from and against any and all claims, debts, demands, damages . . . judgments,
awards, losses, liabilities, interest, attorneys' fees, costs and expenses of whatsoever kind
or nature at any time arising out of any failure of Subcontractor to perform any of the
terms and conditions of this subcontract' " indemnified against both liability and claims,
thus the provision "properly falls under Civil Code section 2778, subdivision (1) [and] as
a consequence, 'payment' was not required prior to seeking indemnification"].)
III. Attorney Fees and Costs Award
Elizabeth contends the family court erred by ordering her to contribute $2,500
toward Bradley's attorney fees and costs. Citing Civil Code section 2778, subdivision
(4), she maintains an indemnitor is only liable for the indemnitee's costs incurred in good
faith and in the exercise of reasonable discretion, and here, the evidence did not show
Bradley's attorney fees and costs were incurred in good faith or "necessary to an effectual
defense." She further argues that Bradley's attorney fees and costs were not incurred in
defending the underlying lawsuit against Joyce, which would have entitled him to fees
and costs under the settlement agreement.
Elizabeth's challenge is not cognizable on appeal because "good faith and
reasonableness are questions of fact." (Peak-Las Positas Partners v. Bollag (2009) 172
Cal.App.4th 101, 106.) In the family court, Elizabeth did not mention Civil Code section
2778; she merely argued that Bradley was not entitled to fees and costs because he
pursued the matter "of [his] own volition." Having failed to raise below the issue of
Bradley's good faith or reasonableness in seeking attorney fees, she cannot do so for the
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first time here. (City of Scotts Valley v. County of Santa Cruz, supra, 201 Cal.App.4th at
pp. 28-29.)
We note that on the merits, Elizabeth's arguments do not establish error. It is her
burden to show the family court abused its broad discretion in awarding Bradley attorney
fees and costs—i.e., that no judge could reasonably make the award she challenges. (In
re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; Denham v. Superior Court
(1970) 2 Cal.3d 557, 566.) She misconstrues Bradley's declaration stating the attorney
fees he had incurred were "for the filing of this motion," and also ignores the plain
language of the settlement agreement. The attorney fees clause in the settlement
agreement provides: "ENFORCEMENT OF TERMS OF AGREEMENT—FEES AND
COSTS [¶] Should it be necessary for either party to bring an action in this or any other
court for the enforcement of any of the provisions of this Agreement, the prevailing party
shall be entitled to an award from the other party of his or her reasonable attorney fees
and costs incurred in the action, irrespective of either party's need or ability to pay at the
time of such hearing, and irrespective of any fee provision of the Family Code of the
State of California." Bradley's motion was directed at enforcing Elizabeth's obligation to
indemnify him for her debts under the settlement agreement, which permitted the
prevailing party to recover attorney fees and costs. Elizabeth does not propose any other
interpretation of the attorney fee provision of the settlement agreement, or convince us
that the family court erred in making the attorney fees and costs award.
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IV. Claim of Breach of Fiduciary Duty
Elizabeth contends Bradley breached his fiduciary duty owed to her under the
settlement agreement, including to make full disclosure of material facts and information
regarding the existence, characterization and valuation of all assets in which the
community has interest and debts for which it may be liable. She points out Bradley was
aware of her plan to file bankruptcy, as was Joyce, and asserts, "In effect, Bradley was in
collusion with Joyce when he sued Elizabeth in Family Court to pay on the debt she owed
to Joyce. This was done despite the fact Elizabeth's legal obligation to Joyce had been
discharged in Bankruptcy Court." Elizabeth further argues the evidence confirms
Bradley intentionally defaulted when he was sued by Joyce to collect on the loan; that he
"used the Family Court to circumvent Elizabeth's bankruptcy discharge" and "breached
his fiduciary obligation to Elizabeth by failing to defend against Joyce's lawsuit."
Though the existence of a fiduciary duty is a question of law, breach of the duty is
a question of fact. (Kirschner Brothers Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d
784, 790; see also Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 32.) Elizabeth did not
make her collusion arguments and raise issues as to Bradley's good faith or intent in the
family court. Thus, such fact-based arguments as to Bradley's breach of fiduciary duty
are not properly raised for the first time on appeal. (City of Scotts Valley v. County of
Santa Cruz, supra, 201 Cal.App.4th at pp. 28-29; see also Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 818, fn. 36; City of San Diego v. Rider,
supra, 47 Cal.App.4th at p. 1493.) We conclude Elizabeth has forfeited these points.
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
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