Ib Property Holdings, LLC v. Rancho Del Mar Apartments Limited Partnership ( 2011 )

FILED BY CLERK
AUG 23 2011
COURT OF APPEALS
IN THE COURT OF APPEALS DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
IB PROPERTY HOLDINGS, LLC, a )
Delaware limited liability company, ) 2 CA-CV 2011-0030
) DEPARTMENT A
Plaintiff/Appellee, )
) OPINION
v. )
)
RANCHO DEL MAR APARTMENTS )
LIMITED PARTNERSHIP, an Arizona )
limited partnership; and M.P.I. )
GENERAL II, INC., an Arizona )
corporation, )
)
Defendants/Appellants. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20106836
Honorable Ted B. Borek, Judge
AFFIRMED
Gust Rosenfeld P.L.C.
By Matthew D. Bedwell Phoenix
Attorneys for Plaintiff/Appellee
Sherman & Howard L.L.C.
By David A. Weatherwax and Dewain D. Fox Phoenix
Attorneys for Defendants/Appellants
B R A M M E R, Judge.
¶1 Rancho Del Mar Apartments Limited Partnership (Rancho) and M.P.I.
General II, Inc. (MPI) (collectively referred to herein as Rancho) appeal from the trial
court‟s order granting a preliminary injunction against it in favor of IB Property
Holdings, LLC (IB) and the court‟s denial of Rancho‟s motion to dissolve the injunction.
Rancho argues the court erred by applying the wrong standard when determining whether
to issue the preliminary injunction, by finding IB would suffer irreparable harm if the
injunction was not granted, and by finding IB had a strong likelihood of success at trial.
We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court‟s
ruling. Smith v. Beesley, 226 Ariz. 313, ¶ 3, 247 P.3d 548, 551 (App. 2011). This case
involves a dispute about an easement among owners of a three-phase apartment complex.
David Case and Mark Breen own equal shares of MPI. MPI is the operating general
partner of Rancho, which owns Phase I of the complex. IB took title to Phase II
following a trustee sale after Phase II‟s previous owner, Del Moral Limited Partnership
(Del Moral), which Case owned in part, defaulted on loan obligations it had secured with
a deed of trust on Phase II. Las Montañas Village Limited Partnership, also affiliated
with Case, owns Phase III. Prior to Del Moral‟s default, all three phases of the apartment
complex were treated as a single entity operating under shared use agreements.
2
¶3 In 1991, Rancho granted an easement to Del Moral‟s predecessor,
Resolution Trust Corporation (RTC).1 Case and Breen were involved in negotiating and
executing the easement.2 Del Moral paid for the construction of a security gate at the
main Campbell Avenue entrance to the project and also constructed a gate across the
easement, obstructing access to Bilby Road. The Bilby Road gate remained locked from
its construction until IB opened it after it took title to Phase II. Rancho relocked the gate,
and IB reopened it. After IB opened the gate for a second time, Rancho closed the gate
again and constructed a fence completely blocking access to Bilby Road.
¶4 IB filed a complaint seeking injunctive relief and damages after Rancho
built the fence, accompanied by a motion for a temporary restraining order to enjoin
Rancho from blocking the easement. The parties stipulated to vacating the temporary
restraining order hearing and agreed to an evidentiary hearing on IB‟s request for a
preliminary injunction. At the conclusion of the hearing, the trial court granted the
preliminary injunction. Rancho then filed a motion for reconsideration limited to the
issue of irreparable harm and requesting in the alternative a stay pending appeal, which
1
The easement states:
Grantor hereby grants and conveys to Grantee and its
successors and assigns a[] pedestrian and passenger vehicle
easement over entranceways and vehicle driveways located
on Phase I . . . as they may exist from time to time, for the
purposes of providing pedestrian ingress and egress and
passenger vehicle ingress and egress to and from Phase II-III,
all as hereinafter limited.
2
The easement was amended in 1993 and 1995 in ways not material to our
analysis.
3
the court denied. The court signed an amended order granting the preliminary injunction.
Rancho filed a motion to dissolve the preliminary injunction pursuant to Rule 65(c), Ariz.
R. Civ. P., which the court denied. This appeal followed. We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(5)(b).
Discussion
¶5 “Granting or denying a preliminary injunction is within the sound
discretion of the trial court, and its decision will not be reversed absent an abuse of that
discretion.” Valley Med. Specialists v. Farber, 194 Ariz. 363, ¶ 9, 982 P.2d 1277, 1280
(1999). We defer to the court‟s factual findings unless clearly erroneous, but review its
legal conclusions de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44,
¶ 9, 156 P.3d 1149, 1152 (App. 2007).
The Shoen Standard for Preliminary Injunctive Relief
¶6 Rancho argues the trial court erred when it utilized the standard for granting
preliminary injunctive relief established by Division One of this court in Shoen v. Shoen,
167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). The court in Shoen adopted a Ninth
Circuit standard the United States Supreme Court subsequently overturned in Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20-21 (2008), and Rancho urges us
to follow the more stringent standard Winter announced. As a preliminary matter,
although the court in Shoen cited both federal and state law as authority for the standard it
ultimately adopted, it did not suggest Arizona either should or would follow federal
rather than state precedent as that law developed. 167 Ariz. at 63, 804 P.2d at 792. To
the extent Rancho suggests we should do so now, we decline the invitation.
4
¶7 Although Rancho contends Arizona courts “have long followed the same
standard” as federal courts when considering whether to issue preliminary injunctions, it
offers no authority supporting its suggestion that we should reject Arizona‟s established
standard in the face of the developed conflicting federal law. Our supreme court adopted
the Shoen standard in Smith v. Arizona Citizens Clean Elections Commission, 212 Ariz.
407, ¶ 10, 132 P.3d 1187, 1190-91 (2006), as have we, see Kromko v. City of Tucson, 202
Ariz. 499, ¶ 3, 47 P.3d 1137, 1139 (App. 2002), and we are bound to follow decisions of
our supreme court, Green v. Lisa Frank, Inc., 221 Ariz. 138, ¶ 13, 211 P.3d 16, 23 (App.
2009). Our court of appeals has continued to employ the Shoen standard since Winter
was decided. See Ariz. Ass’n of Providers for Persons with Disabilities v. State, 223
Ariz. 6, ¶ 12, 219 P.3d 216, 222 (App. 2009); see also White v. Greater Ariz. Bicycling
Ass’n, 216 Ariz. 133, ¶ 14, 163 P.3d 1083, 1087-88 (App. 2007) (we consider decisions
of coordinate courts highly persuasive and binding). The Shoen standard thus remains
the law in Arizona, and the trial court did not err in applying it here.
¶8 Additionally, the distinction Rancho urges here does not affect the outcome
in this case. The relevant difference between the Winter and Shoen standards is that
Winter requires the party seeking an injunction to demonstrate that irreparable injury is
likely, rather than merely possible. See Winter, 555 U.S. at 22. Here, although Rancho
argues the trial court found irreparable harm was only “possible,” in its final amended
order granting the injunction the court indeed found “[IB] will suffer irreparable injury if
an injunction is not granted.” A finding that irreparable injury will occur plainly satisfies
a requirement that irreparable injury be likely.
5
Evidence of Irreparable Harm
¶9 Rancho argues the trial court erred in granting, and then failing to dissolve,
the preliminary injunction because IB had failed to show a likelihood of irreparable harm.
The party seeking a preliminary injunction must establish:
1) A strong likelihood that he will succeed at trial on the
merits;
2) The possibility of irreparable injury to him not remediable
by damages if the requested relief is not granted;
3) A balance of hardships favors himself; and
4) Public policy favors the injunction.
Shoen, 167 Ariz. at 63, 804 P.2d at 792. The court found as to factors (3) and (4) “the
harm to [IB] if the injunction is not granted outweighs the harm to [Rancho] if the
injunction is granted” and “public policy favors enforcement of the easement contract”;
Rancho does not challenge those findings on appeal. The court also found:
[IB] will suffer irreparable injury if an injunction is not
granted because the lack of access to Bilby will reduce
occupancy of [IB]‟s property, cause loss of income and loss
of value of the property at a time when [IB] is seeking buyers
for the property, and the amount of loss will be difficult to
measure with reasonable certainty.
Rancho contends this finding was not supported by the evidence because IB‟s alleged
injury “is remediable by damages” and monetary damages are adequate as a matter of
law.
¶10 As Shoen provides, the party seeking an injunction must show a possibility
of irreparable injury “not remediable by damages.” 167 Ariz. at 63, 804 P.2d at 792.
6
Monetary damages may provide an adequate remedy at law. See Cracchiolo v. State, 135
Ariz. 243, 247, 660 P.2d 494, 498 (App. 1983). However, where a loss is uncertain,
monetary damages may be inadequate.3 See Phoenix Orthopaedic Surgeons, Ltd. v.
Peairs, 164 Ariz. 54, 59, 790 P.2d 752, 757 (App. 1989), overruled on other grounds by
Farber, 194 Ariz. 363, 982 P.2d 1277. To determine whether damages would be an
adequate remedy at law, the court should consider “the difficulty of proving damages
with reasonable certainty.” Restatement (Second) of Contracts § 360 (1981); see also
Restatement § 352 (damages not recoverable for loss beyond amount established with
reasonable certainty); Restatement § 360 cmt. b (damages inadequate remedy if injured
party can prove some but not all loss); Haralson v. Fisher Surveying, Inc., 201 Ariz. 1,
¶ 35, 31 P.3d 114, 121 (2001) (McGregor, J., concurring in part and dissenting in part)
(Arizona courts generally apply law of the Restatement absent Arizona law to contrary).
¶11 Rancho argues IB‟s injury is remediable by damages because its complaint
alleged it had suffered monetary damages “in an amount to be proven at trial” and did not
allege that the full amount of its damages would be difficult to calculate.4 However, even
3
Rancho cites out-of-state cases to argue purely economic injuries are
inappropriate for injunctive relief. However, it cites no binding authority in support of its
position, and we find none.
4
Rancho also notes IB‟s motion for a temporary restraining order did not allege IB
was unable to quantify its damages. To the extent Rancho argues IB waived this
argument below or on appeal by not raising it properly in the trial court, we disagree; IB
raised the issue in its reply below, the parties addressed it at the hearing without
objection, and the court had an opportunity to address the issue on its merits. See
Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232,
238-39 (App. 2007); see also Ariz. R. Civ. P. 15(b) (issues tried by implied consent of
parties treated as raised in pleadings).
7
if some damages may be proved and recovered, injunctive relief may be appropriate if
those damages are inadequate to address the full harm suffered. See Peairs, 164 Ariz. at
59, 790 P.2d at 757.
¶12 Rancho also challenges the trial court‟s implicit conclusion that potential
monetary damages would be too uncertain to compensate IB adequately. IB‟s real estate
broker, Arthur Wadlund, testified the value of the property would increase if access to
and from Phase II was made available to Bilby Road because it would improve the access
for Phase II‟s prospective tenants.5 Equitable relief may be appropriate to prevent a loss
of potential customers. See, e.g., Restatement (Second) of Contracts § 360 cmt. b (breach
of covenant not to compete causes “the loss of customers of an unascertainable number”);
Restatement (Second) of Torts § 944 (1979) cmt. d (estimate of business diverted via
unfair competition “necessarily contains a high degree of conjecture”).
¶13 Rancho suggests Wadlund‟s testimony implied it would be “possible” to
calculate IB‟s alleged damages, but he had not attempted to do so. To the contrary,
Wadlund testified there was “probably a way to estimate” the harm, but that “[i]t would
be pretty speculative to figure out.” Whether Wadlund had attempted to calculate such
an estimate is irrelevant to his opinion that any results would have been speculative. “We
will not substitute our judgment for that of the trier of fact on matters pertaining to the
5
Rancho contends IB has not suffered any injury from lack of access to Bilby
Road because it successfully has attracted potential purchasers, and any occupancy
problems were caused by poor management, not by the Bilby gate. But it fails to explain
how either of these facts, even were they established as true, would eliminate any
additional harm IB has suffered or will suffer as a result of its lack of access to Bilby
Road.
8
credibility and weight of expert testimony.” Nordstrom, Inc. v. Maricopa County, 207
Ariz. 553, ¶ 24, 88 P.3d 1165, 1171 (App. 2004); see also Ariz. R. Civ. P. 52(a) (we give
due regard to trial court‟s opportunity to judge witness credibility). The trial court‟s
finding that IB would suffer irreparable injury if an injunction was not granted was
supported by the evidence and was not “clearly erroneous.”6 See Farber, 194 Ariz. 363,
¶ 9, 982 P.2d at 1280.
¶14 Rancho further contends IB suffered no harm from the Bilby gate because
there is access to Phase II via a southern entrance from Campbell Avenue that does not
lead traffic through Rancho‟s property. Rancho does not allege Wadlund was unaware of
this entrance; in fact, he acknowledged there was access to the property from Campbell
Avenue.7 Nonetheless, he opined that being able to access Phase II from Bilby Road
would increase its value. Neither does Rancho contest that Phase II does not abut
Campbell Avenue. And testimony from other witnesses revealed the southern entrance
from Campbell Avenue leads traffic through a small residential street unsuitable for
access to a large apartment complex. Therefore, the trial court‟s determination that IB
would be harmed by the lack of access from Bilby Road, regardless of access from
6
Rancho also challenges the testimony of other witnesses regarding the effect of
the gate on the value of the property. Because we already have determined sufficient
evidence supports the trial court‟s finding of irreparable harm, we do not reach this
argument.
7
Rancho also alleges Wadlund previously stated in an email that Campbell Avenue
was preferable to Bilby Road for leasing purposes. However, the email‟s next sentence
makes clear Wadlund was discussing preferred access for the entire complex—not only
for Phase II. He states, “That being said, one option to a new buyer is to divorce
themselves from phases [I] and [III] and run a stand alone property.”
9
Campbell Avenue, is supported by the evidence.8 See Nordstrom, Inc., 207 Ariz. 553,
¶ 24, 88 P.3d at 1171.
Likelihood of Success on the Merits
¶15 Rancho also argues the trial court erred in concluding IB had a strong
likelihood of success on the merits because the court incorrectly determined parol
evidence of the parties‟ intent as to the scope of the easement was inadmissible. It insists
the parties intended the easement would be limited to emergency vehicle use only.
Rancho also argues the court erred by ignoring evidence the easement had been modified
or terminated by abandonment, waiver, and estoppel.
Parol Evidence
¶16 Principles of contract interpretation apply to easements. See, e.g., State v.
Mabery Ranch, Co., 216 Ariz. 233, ¶ 28, 165 P.3d 211, 219 (App. 2007) (applying rules
of contract interpretation to easement agreement). The parol evidence rule prohibits the
admission of extrinsic evidence to vary or contradict the terms of a contract, although
such evidence is admissible to interpret them. Taylor v. State Farm Mut. Auto. Ins. Co.,
175 Ariz. 148, 152, 854 P.2d 1134, 1138 (1993). A court must consider the evidence, but
need admit it only when the contract language is “reasonably susceptible” to the
interpretation offered by the proponent, and then only to determine the parties‟ intended
meaning. Id. at 154, 854 P.2d at 1140. “When „the provisions of the contract are plain
8
Rancho also challenges the trial court‟s statement, made at the hearing on the
motion to dissolve, that Phase II is unique property. We do not address this issue because
the court‟s determination that IB would suffer irreparable harm is supported by other
evidence.
10
and unambiguous upon their face, they must be applied as written, and the court will not
pervert or do violence to the language used, or expand it beyond its plain and ordinary
meaning or add something to the contract which the parties have not put there.‟”
Employers Mut. Cas. Co. v. DGG & CAR, Inc., 218 Ariz. 262, ¶ 24, 183 P.3d 513, 518
(2008), quoting D.M.A.F.B. Fed. Credit Union v. Employers Mut. Liab. Ins. Co. of Wis.,
96 Ariz. 399, 403, 396 P.2d 20, 23 (1964).
¶17 The easement states:
Grantor hereby grants and conveys to Grantee and its
successors and assigns a[] pedestrian and passenger vehicle
easement over entranceways and vehicle driveways located
on Phase I . . . as they may exist from time to time, for the
purposes of providing pedestrian ingress and egress and
passenger vehicle ingress and egress to and from Phase II-III,
all as hereinafter limited.
Rancho notes the easement also declares “[i]t is the intention of the parties that they grant
each other reciprocal easements for the sole purpose of limited ingress and egress upon
the terms, provisions, conditions, and covenants contained in th[e] agreement.” This
provision, Rancho contends, clearly indicates the scope of the easement is reasonably
susceptible to the interpretation it offers because the easement was intended to be
“limited,” and that limitation was for emergency vehicle access only.
¶18 Rancho points to evidence in the record that it asserts demonstrates the true
intent of the parties. In their affidavits, Case and Breen declared that when the easement
was granted the parties intended that, if an access point was constructed from the
complex to Bilby Road, access would be blocked by a locked gate and be limited to
emergency vehicle use only. They also noted that if Bilby Road had been intended to
11
provide access to and from Phase II, there would have been no reason for the easement
providing access to Campbell Avenue. Breen further stated that in his discussions with
RTC he made it “absolutely clear” that, for safety and security reasons, if Rancho was to
provide the easement it would require the right to control access over Phase I so there
would never be public access from the complex onto Bilby Road; he stated RTC
understood and accepted that limitation.
¶19 Additionally, Case and Breen declared that when Del Moral acquired Phase
II it understood and agreed access to Bilby Road was limited to emergency vehicles.
They also stated Del Moral had constructed the security gate to limit access to emergency
vehicles only, and the gate had been locked as soon as it was constructed and had
remained locked. Further, they averred that when Phase II was constructed, although Del
Moral had moved several roads, the map to the easement had not been changed; Del
Moral had not built a road on the northern portion of the easement, instead constructing a
maintenance building there. Rancho and Del Moral also had agreed public access to the
complex would be through a security gate on Campbell Avenue built by Del Moral. Last,
Case declared that when Del Moral refinanced Phase II he told a bank representative the
gate was locked permanently, used only for emergency vehicles, and gave the
representative a copy of the residential lease then in effect, which stated the gate was
considered to be access for emergency vehicles.
¶20 The parol evidence rule renders inadmissible the evidence Rancho offers
because it is offered solely to vary or contradict the plain meaning of the easement, not to
interpret one of its terms. See Taylor, 175 Ariz. at 152, 854 P.2d at 1138. The proffered
12
evidence merely seeks to supplant the terms “pedestrian” and “passenger vehicle” with
the term “emergency vehicle.” Although we first must consider Case and Breen‟s
affidavits and their “allegations made . . . as to the appropriate interpretation of the
[easement] in light of the extrinsic evidence” offered, we also must consider the language
of the writing to determine if it is reasonably susceptible to the suggested interpretation.
Long v. City of Glendale, 208 Ariz. 319, ¶ 28, 93 P.3d 519, 528 (App. 2004). The only
argument Rancho offers indicating the easement‟s language suggests it is reasonably
susceptible to another meaning is the provision of the easement stating it is for “limited
ingress and egress.” However, the limitation referred to is clear—the easement is limited
by “the terms, provisions, conditions, and covenants contained in th[e] agreement,” none
of which limit the easement to emergency vehicle use only. And Rancho has offered no
explanation why a reciprocal easement that permitted access to emergency vehicles only
would have been either necessary or desired by RTC.
¶21 Here, no interpretation of the easement is required because the meaning of
its terms is clear. Even in light of the evidence Rancho proffered, the contract language
is not “reasonably susceptible” to the interpretation it offered. Thus the evidence cannot
be admitted to determine the parties‟ intended meaning. See id. ¶ 29. Moreover, “one
cannot claim that one is „interpreting‟ a written clause with extrinsic evidence if the
resulting „interpretation‟ unavoidably changes the meaning of the writing.” Id. ¶ 34.
And although Rancho contends the trial court “could not resist the temptation to interpret
the language in the Easement according to how it understood the words,” the words
“pedestrian” and “passenger vehicle” require no interpretation. “At what point [the
13
court] stops „listening to testimony that white is black and that a dollar is fifty cents is a
matter for sound judicial discretion and common sense.‟” Taylor, 175 Ariz. at 153, 854
P.2d at 1139, quoting 6 Arthur L. Corbin, Corbin on Contracts § 579, at 127 (interim ed.
2002). Therefore, the court did not err in refusing to admit the proffered extrinsic
evidence and in concluding the parties “would be bound by the written agreement.”
Abandonment, Waiver, Estoppel
¶22 Rancho also argues the trial court erred in determining there was a strong
likelihood IB would succeed on the merits because the court failed to consider
“substantial evidence of abandonment, waiver and estoppel.” Although the court‟s ruling
did not address those arguments explicitly, it stated it had “considered everything,”
including the arguments made by counsel, and we will uphold the court‟s ruling if any
construction of the evidence supports it. See Spaulding v. Pouliot, 218 Ariz. 196, ¶ 8,
181 P.3d 243, 246 (App. 2008).
¶23 “The law is well-settled that the owner of an easement created by express
grant is under no duty to make use of the easement in order to retain his entitlement.”
Squaw Peak Cmty. Covenant Church of Phoenix v. Anozira Dev., Inc., 149 Ariz. 409,
414, 719 P.2d 295, 300 (App. 1986). Abandonment of an easement requires the intent to
abandon coupled with an act or a failure to act that carries out the intent to abandon. City
of Tucson v. Koerber, 82 Ariz. 347, 356, 313 P.2d 411, 418 (1957). And waiver is the
“voluntary and intentional relinquishment of a known right” or conduct warranting an
inference that such a right has been relinquished. Id. Abandonment and waiver both
“require the concurrence of act and intent.” Id. “Estoppel arises where one with
14
knowledge of the facts has acted in a particular manner so that he ought not to be allowed
to assert a position inconsistent with his former acts to the prejudice of others who have
relied thereon.” Id.
¶24 Rancho notes Del Moral constructed the gate prohibiting public access to
Bilby Road. Additionally, the gate was locked as soon as it was constructed and
remained locked. And Del Moral constructed a maintenance building on the original
easement and funded the Campbell Avenue security gate providing the only public access
to the complex. Rancho alleges it relied on those actions of Del Moral because it would
not have allowed changes to the development plan or the construction of the maintenance
building, and would not have entered into a shared use agreement with Del Moral had
Del Moral not agreed the gate would remain locked permanently. At the hearing,
Rancho‟s counsel clarified that its allegation was that the easement had been abandoned
only as to public access from Bilby Road.
¶25 On the record before us, the evidence adequately supports the trial court‟s
ruling. The court could have found IB‟s predecessor did not intend to abandon or waive
its rights permanently to public access over its easement when it installed a gate that
could be unlocked and opened. See Restatement (Third) of Property (Servitudes) § 7.4
cmts. a, c (2000) (“abandonment is difficult to establish” and, if servitude benefit
substantially enhances dominant estate‟s value, abandonment “should never be found in
the absence of unequivocal evidence that the beneficiary intended to extinguish it
permanently”); see also Squaw Peak, 149 Ariz. at 414, 719 P.2d at 300 (gate does not
restrict passage in manner of permanent structure because it “may be opened or closed”).
15
And subsequent non-use is not enough for a finding of abandonment or waiver. See
Squaw Peak, 149 Ariz. at 414, 719 P.2d at 300. Similarly, we are not persuaded that IB‟s
predecessors “acted in a particular manner so that [IB] ought not to be allowed to assert a
position inconsistent with . . . former acts to the prejudice of others who have relied
thereon.” Koerber, 82 Ariz. at 356, 313 P.2d at 418. Detrimental reliance requires more
than Rancho‟s assertions that it would have done some things differently had it known
Del Moral or its successors would attempt to enforce the easement as written. See
LaBombard v. Samaritan Health Sys., 195 Ariz. 543, ¶ 12, 991 P.2d 246, 250 (App.
1998) (claim for estoppel requires detrimental reliance which requires showing of injury
or prejudice because action taken in reliance). Therefore, because Rancho has not
established the easement was terminated or modified, and because the extrinsic evidence
it offers is inadmissible under the parol evidence rule, the trial court did not err in
determining IB had a strong likelihood of success on the merits of its claim.
Disposition
¶26 For the foregoing reasons, we affirm.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
16