Goodman v. Physical Resource Engineering, Inc. , 229 Ariz. 25 ( 2011 )

FILED BY CLERK
IN THE COURT OF APPEALS
DEC 28 2011
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
MICHAEL A. GOODMAN, a married )
man, ) 2 CA-CV 2011-0053
) DEPARTMENT B
Plaintiff/Appellee, )
) OPINION
v. )
)
PHYSICAL RESOURCE )
ENGINEERING, INC., an Arizona )
corporation, )
)
Defendant/Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20092715
Honorable Ted B. Borek, Judge
REVERSED AND REMANDED
Thompson-Krone, P.L.C.
By Russell E. Krone Tucson
Attorneys for Plaintiff/Appellee
Meagher & Geer, P.L.L.P.
By Kurt M. Zitzer and Thomas H. Crouch
Scottsdale
Attorneys for Defendant/Appellant
E S P I N O S A, Judge.
¶1 Physical Resource Engineering, Inc. (PRE) appeals from a judgment
entered after a jury trial in favor of Michael Goodman on his claim for breach of contract.
PRE also challenges the trial court‟s denial of its motion for judgment as a matter of law
pursuant to Rule 50, Ariz. R. Civ. P., and motion for a new trial pursuant to Rule 59,
asserting there was no evidence a contract between PRE and Goodman had existed, and,
in any event, under the circumstances of this case Arizona law limited Goodman to
pursuing only a tort claim. Additionally, PRE contends the case should be remanded for
a new trial on Goodman‟s negligence claim. For the reasons set forth below, we reverse
and remand.
Factual Background and Procedural History
¶2 We view “the evidence in a light most favorable to upholding the jury
verdict.” Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998).
Goodman, a Tucson real estate developer, hired Tortolita Valley Homes (TVH) to
construct two luxury duplex buildings on property Goodman owned on Fort Lowell
Road. In April 2008, TVH hired PRE, a civil engineering, surveying, and geological
engineering firm, to stake the location for Goodman‟s buildings according to a site plan
prepared by Goodman‟s architect, Scott Isles, and approved by the City of Tucson.
Staking each building required PRE to “dimensionally locate the house on the site [and]
place four pins where the house went.”
¶3 According to the site plan, one of the buildings should have been located
twenty feet, three inches south of the north property line, resulting in a twelve-foot-wide
rear yard on the building‟s north side. PRE staked the building approximately six feet
north of where it should have been built, and TVH constructed the building according to
2
the stakes, resulting in a yard depth of only six feet and a violation of setback and
floodplain requirements. In September 2008, TVH and Isles determined the building
location did not conform to the site plan, and Goodman subsequently sued PRE for
breach of contract and professional negligence.1
¶4 PRE filed a motion for partial summary judgment in which it argued there
was no contract between it and Goodman, and, furthermore, it had not breached its
express agreement with TVH. PRE also contended that any claim Goodman might have
against it could be based only on the alleged breach of a professional duty, limiting
Goodman to a negligence claim. The trial court denied the motion following oral
argument.
¶5 During trial, PRE moved for judgment as a matter of law pursuant to Rule
50, again arguing there was no contract between the parties and the verbal contract
between PRE and TVH had not been breached. As to the negligence claim, PRE
contended that Goodman had failed to introduce sufficient evidence establishing PRE had
staked the building in the wrong location or, alternatively, that Goodman and Isles should
be found comparatively at fault. The court denied PRE‟s motion. Following the close of
evidence, PRE renewed its Rule 50 motion and later moved for a new trial pursuant to
Rule 59 on the same grounds, which the court again denied. The jury found that a
1
The trial court dismissed Goodman‟s additional claim for breach of the covenant
of good faith and fair dealing. TVH subsequently assigned to Goodman any claims it
may have had against PRE. The court denied Goodman‟s subsequent motion to amend
the complaint to add the assigned claims and Goodman has not challenged that ruling on
appeal.
3
contract existed between Goodman and PRE, and that PRE had breached it, causing
damages of $217,314. The court entered judgment in favor of Goodman in that amount,
and awarded him attorney fees and costs under A.R.S. §§ 12-341.01 and 12-322. We
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1), (A)(5)(a).
Discussion
¶6 PRE contends the trial court erred in denying its motions for judgment as a
matter of law on Goodman‟s breach of contract claim because there was no evidence a
contract existed between PRE and Goodman under either of two theories Goodman
advanced at trial. We review de novo the denial of a motion for judgment as a matter of
law under Rule 50. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty.,
222 Ariz. 515, ¶ 14, 217 P.3d 1220, 1229 (App. 2009); Shoen v. Shoen, 191 Ariz. 64, 65-
66, 952 P.2d 302, 303-04 (App. 1997). We will uphold the ruling unless “„the facts
produced in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.‟” A Tumbling-T Ranches, 222 Ariz.
515, ¶ 14, 217 P.3d at 1229, quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d
1000, 1008 (1990). Similarly, it is for the trial court to determine, in the exercise of its
discretion, whether to grant a motion for a new trial on the ground that the verdict is
against the weight of the evidence; absent an abuse of discretion, we will not disturb the
court‟s ruling. Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, ¶ 15, 31 P.3d 806, 810
(App. 2001). Both rulings will be affirmed “[i]f any substantial evidence could lead
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reasonable persons to find the ultimate facts to support a verdict.” Id. (motion for new
trial); Hutcherson, 192 Ariz. 51, ¶ 13, 961 P.2d at 451 (motion for judgment as a matter
of law).
Implied Contract between PRE and Goodman
¶7 To prevail on a breach of contract claim, Goodman was required to prove a
contract existed between him and PRE, PRE breached the contract, and Goodman
suffered damages as a result. See Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656,
657 (1975), citing Clark v. Compania Ganadera de Cananea, S.A., 95 Ariz. 90, 94, 387
P.2d 235, 238 (1963). For a valid contract to have been formed between them, there must
have been an offer, acceptance of the offer, and consideration, K-Line Builders, Inc. v.
First Fed. Sav. & Loan Ass’n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1983), and
they must have intended to be bound by the agreement, see Schade v. Diethrich, 158
Ariz. 1, 9, 760 P.2d 1050, 1058 (1988). An offer has no binding effect unless and until
accepted by the offeree to whom the offer was directed. AROK Constr. Co. v. Indian
Constr. Servs., 174 Ariz. 291, 294, 848 P.2d 870, 873 (App. 1993) (subcontractor‟s bid to
contractor and owner). An agreement can be implied and is enforceable where there is a
valid offer and acceptance, and the only term missing is the final price. Schade, 158
Ariz. at 5-11, 760 P.2d at 1054-60.
¶8 The parties agree there was no written or express contract between them for
the staking job. Goodman contends, however, that based on evidence of their prior
course of dealing and other circumstances, the jury reasonably could infer PRE had
5
intended to enter into a contract with him.2 See Carroll v. Lee, 148 Ariz. 10, 13, 712
P.2d 923, 926 (1986) (implied contract, with same legal effect as express contract, may
be inferred as matter of reason and justice from acts and conduct of parties and
circumstances surrounding their transaction). Goodman argues that PRE was aware he
was the owner of the property to be staked, he knew PRE was working on the job, and
PRE had worked on a number of his construction projects in the past. But that does not
establish that either Goodman or PRE intended to enter into a contract with one another
on this particular project. See Keith Equip. Co. v. Casa Grande Cotton Fin. Co., 187
Ariz. 259, 262, 928 P.2d 683, 686 (App. 1996) (course of dealing does not create
contract, and conduct of businesses to be interpreted in commercial context of
interactions); cf. Johnson Int’l, Inc. v. City of Phoenix, 192 Ariz. 466, ¶ 26, 967 P.2d 607,
611-12 (App. 1998) (parties may be contractually bound if intent to do so clear from
surrounding circumstances and parties‟ conduct, and there has been mutual assent).
¶9 Although Goodman repeatedly points to evidence PRE had knowledge,
from a variety of sources, that he was the owner of the property, he provides no authority
for the proposition that such knowledge established the existence of a contract with him
rather than TVH. It is undisputed that PRE was hired by TVH and dealt exclusively with
TVH throughout the course of the project. Thus, other than possibly through TVH,
2
In his complaint, the only theory Goodman advanced was that a contract had been
formed as a result of TVH being his agent in its dealings with PRE. The trial court
denied Goodman‟s motion to amend his complaint to add a course-of-dealing theory. We
may, however, affirm the jury‟s verdict for any reason supported by the evidence. See
Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998).
6
acting as Goodman‟s agent as we address infra, there was no evidence Goodman made an
offer to PRE, much less that PRE accepted an offer from Goodman, to perform the
staking on this project.
¶10 Goodman nevertheless contends that a contract with PRE was implied
because PRE president Dan White had met with him personally to discuss possible
solutions after it was learned the property had been staked in the wrong place. But we
agree with PRE that such conduct occurring after the fact cannot serve as the basis for
finding an implied contract existed given that there was an express contract between PRE
and TVH. See Brown v. Beck, 68 Ariz. 139, 143, 202 P.2d 528, 530 (1949) (no implied
agreement where express contract existed for labor performed); cf. Miller Cattle Co. v.
Mattice, 38 Ariz. 180, 189, 298 P. 640, 643 (1931) (conversations following formation of
express contract could not establish new contract, absent new consideration).
Accordingly, we conclude there was insufficient evidence from which reasonable jurors
could find any type of direct contract existed between PRE and Goodman. We therefore
turn to the question whether TVH was acting as Goodman‟s agent when it hired PRE,
thereby creating a contract between Goodman and PRE.
Contract Formed through Agency
¶11 PRE argues there was no evidence that TVH was acting as Goodman‟s
agent when it employed PRE to stake the property; rather, the record shows PRE entered
into an express oral agreement only with TVH, and nothing said or done created a
contractual relationship between PRE and Goodman. Goodman counters that the
7
circumstances, acts, and conduct of Goodman and TVH manifested an agency
relationship that resulted in a binding contract between him and PRE. Goodman, as the
proponent of the agency theory, had the burden of proof. Brown v. Ariz. Dep’t of Real
Estate, 181 Ariz. 320, 326, 890 P.2d 615, 621 (App. 1995).
¶12 “Agency is the fiduciary relationship that arises when one person (a
„principal‟) manifests assent to another person (an „agent‟) that the agent shall act on the
principal‟s behalf and subject to the principal‟s control, and the agent manifests assent or
otherwise consents so to act.” Restatement (Third) of Agency § 1.01 (2006) (hereinafter
“Restatement”).3 There are two types of agency, express and apparent. Curran v. Indus.
Comm’n, 156 Ariz. 434, 437, 752 P.2d 523, 526 (App. 1988).4 An agent holds express
authority “„[i]f there is evidence that the principal has delegated authority by oral or
written words which authorize him to do a certain act or series of acts.‟” Premium
Cigars Int’l, Ltd. v. Farmer-Butler-Leavitt Ins. Agency, 208 Ariz. 557, ¶ 30, 96 P.3d 555,
565 (App. 2004), overruled on other grounds by Webb v. Gittlen, 217 Ariz. 363, 174 P.3d
3
In the absence of prior decisions to the contrary, we may seek guidance from the
Restatement when it is applicable. Maricopa P’ships, Inc. v. Petyak, 163 Ariz. 624, 626,
790 P.2d 279, 281 (App. 1989).
4
Apparent agency exists when “„the principal has intentionally or inadvertently
induced third persons to believe that such a person was its agent although no actual or
express authority was conferred on him as agent.‟” Curran, 156 Ariz. at 437, 752 P.2d at
526, quoting Canyon State Canners v. Hooks, 74 Ariz. 70, 73, 243 P.2d 1023, 1025
(1952). “Apparent authority is the power held by an agent or other actor to affect a
principal‟s legal relations with third parties when a third party reasonably believes the
actor has authority to act on behalf of the principal and that belief is traceable to the
principal‟s manifestations.” Restatement § 2.03. Neither party argues that Goodman
“intentionally or inadvertently induced” PRE to believe TVH was Goodman‟s agent. See
Curran, 156 Ariz. at 437, 752 P.2d at 526.
8
275 (2008), quoting Curran, 156 Ariz. at 437, 752 P.2d at 526. Generally, whether
agency exists is a question of fact, but when the material facts are not in dispute, the
existence of such a relationship is a question of law for the court to decide. Ruesga v.
Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, ¶ 21, 161 P.3d 1253, 1260 (App. 2007).
¶13 Goodman contends the principal‟s intent is controlling in determining
whether an agency relationship was created, citing Brutinel v. Nygren, 17 Ariz. 491, 497,
154 P. 1042, 1044 (1916), and insists the evidence established that such a relationship
existed here. Goodman argues the record shows he hired TVH to oversee the
construction of the duplex and hire subcontractors for the project, asserting he had done
so in the past, and points to his own testimony that TVH worked for him and only him at
that time. He further argues this court has recognized course of dealing between
principal and agent as a substantial factor for implying an agency relationship, citing Phx.
W. Holding Corp. v. Gleeson, 18 Ariz. App. 60, 65-66, 500 P.2d 320, 325-26 (1972)
(agency may be established from relation of parties to each other and to subject matter,
their acts and conduct); Kjerschow v. Daggs, 24 Ariz. 207, 213-16, 207 P. 1089, 1091-92
(1922); and Brutinel, 17 Ariz. at 497, 154 P. at 1044 (principal‟s intent to form agency
may be implied from particular circumstances).
¶14 PRE disputes Goodman‟s legal claims, contending the role of a general
contractor does not imply an agency relationship with the property owner, citing
Flanigan & Sons, Inc. v. Childs, 248 A.2d 473, 478 (Md. 1968) (no contract between
subcontractor and owner even though subcontractor possessed site plan identifying owner
9
and subcontractor was informed details of construction would be discussed with owners),
and Summerall Elec. Co. v. Church of God at Southaven, 25 So. 3d 1090, ¶¶ 21, 24 (Miss.
Ct. App. 2010) (statements owner entrusted general contractor with authority to do what
was necessary for construction did not establish agency). PRE points to evidence that
Goodman considered TVH an independent contractor, and the owner of TVH, Jesse
Patterson, identified himself as a general contractor rather than an agent for Goodman.
And PRE notes Patterson clarified that although he began to work exclusively for
Goodman in 2007 as a general contractor, he was working on other jobs for other owners
at the time he hired PRE. Finally, PRE emphasizes that neither Patterson nor Goodman
ever testified that TVH had acted in the capacity of an agent in contracting with PRE, and
asserts that the agency theory is merely an after-the-fact justification to support
Goodman‟s contract claim.
¶15 Although agency generally is a question of fact, the issue of agency may be
decided as a matter of law where “„no competent evidence legally sufficient to prove it
has been introduced‟” and “„the material facts from which it is to be inferred are
undisputed and only one conclusion can be reasonably drawn therefrom.‟” Schenks v.
Earnhardt Ford Sales Co., 9 Ariz. App. 555, 557, 454 P.2d 873, 875 (1969), quoting 3
C.J.S. Agency § 330(a). Where no direct contract exists between a subcontractor and
property owner, our courts have held a subcontractor has no standing to sue the owner for
breach of contract solely based upon the alleged agency of a general contractor. Keefer v.
Lavender, 74 Ariz. 24, 26, 243 P.2d 457, 459 (1952) (general contractor not agent of
10
owner, and statutory agency created through mechanics‟ liens did not establish general
agency); see also Fagerlie v. Markham Contracting Co., 227 Ariz. 367, ¶ 18, 258 P.3d
185, 190 (App. 2011) (general contractor statutory agent of owner for mechanics‟ lien
purposes only and not general agent).
¶16 In Stratton v. Inspiration Consol. Copper Co., 140 Ariz. 528, 529-30, 683
P.2d 327, 328-29 (App. 1984), a subcontractor sought to recover unpaid funds from a
property owner, alleging breach of an implied contract formed between the owner and
subcontractor through the general contractor‟s agency. Although the owner did not
contract directly with the subcontractor, the owner approved the general contractor‟s
choice of subcontractor and inspected the subcontractor‟s work from time to time. Id. at
529, 683 P.2d at 328. This court held a general contractor is not an owner‟s agent except
in the limited statutory context of mechanics‟ liens. Id. at 531, 683 P.2d at 330. We
reasoned that privity of contract must exist before a party may seek to enforce a contract,
and, since there was no agency, no privity of contract existed between the subcontractor
and owner, and the subcontractor had no claim for breach of contract against the owner.
Id. Although Stratton and the above cases relate to the opposite scenario from the one at
hand—an owner seeking recovery against a subcontractor—we find them controlling.
¶17 At trial, Goodman testified “[Patterson] is in charge of doing all the
construction work, getting it completed and getting it finaled out with the city,” and that
Patterson is “an independent contractor” who does what Goodman requests on the
projects. Patterson testified, not inconsistently with Goodman‟s statements, that he alone
11
was responsible for hiring subcontractors, and Goodman did not tell him which ones to
employ. Goodman identifies no evidence in the record that he exercised authority over
TVH‟s hiring process or decisions. See Urias v. PCS Health Sys., Inc., 211 Ariz. 81,
¶¶ 33, 37-41, 118 P.3d 29, 35, 36 (App. 2005) (no agency where insurer did not control
claim processor‟s negotiations to fulfill contract, although claim processor received funds
“[o]n behalf of ” insurer); Brown v. Ariz. Dep’t of Real Estate, 181 Ariz. at 326, 890 P.2d
at 621 (right to control transaction factor in determining agency relationship); see also
Indep. Gin Co. v. Parker, 19 Ariz. App. 413, 415, 508 P.2d 78, 80 (1973) (assignee not
lessee‟s agent where owner leased lands and lessee relinquished to assignee all control
and dominion over farming operations, leased premises, and operating machinery).
Moreover, although TVH had used PRE as a subcontractor for Goodman‟s projects
several times previously, there was no evidence that Goodman had utilized TVH in an
agency capacity in the past to form contracts between Goodman and subcontractors that
TVH had hired. See Kjerschow, 24 Ariz. at 215-18, 207 P. at 1092-93 (series of real
estate transactions in which representative had acted on behalf, and at direction, of
enterprise in acquiring properties demonstrated continuing agency); Holsclaw v. Catalina
Sav. & Loan Ass’n, 13 Ariz. App. 362, 366-67, 476 P.2d 883, 887-88 (1970) (collection
agent‟s long and repeated course of accepting payments on behalf of mortgage holders
created agency by implication).
¶18 Furthermore, even assuming arguendo that TVH was Goodman‟s agent,
there is no evidence TVH ever disclosed it was acting in that capacity when it engaged
12
PRE‟s services to stake the property. A principal is undisclosed if the third party has no
notice the agent is acting for a principal. Restatement § 1.03(2)(b); cf. Myers-Leiber Sign
Co. v. Weirich, 2 Ariz. App. 534, 536, 410 P.2d 491, 493 (1966) (for agent to avoid
personal liability when acting on behalf of principal, agent must disclose agency and
identify principal at time of transaction). It appears the majority of cases dealing with
undisclosed principals arise in the context of third parties or agents attempting to hold the
principal liable on a contract.5 When the situation is reversed, however, it is unlikely a
third party can accurately assess the interests at stake, because the third party is unaware
of the actual party to the contract. See Restatement § 2.03 cmt. f (if third party in doubt
whether actor represents actor‟s interests only, third party lacks reasonable basis to
believe actor has power to affect principal‟s legal position).
¶19 The record supports PRE‟s assertion that TVH did not inform PRE that it
was acting as Goodman‟s agent and, thus, that PRE was contracting with Goodman,
when TVH hired PRE to stake the property. Patterson testified as follows:
5
See, e.g., Litchfield v. Green, 43 Ariz. 509, 510, 33 P.2d 290, 290 (1934)
(architect sued alleged principal to collect for work performed on principal‟s behalf after
putative agent hired architect without lawful authority); Kjerschow, 24 Ariz. at 207, 207
P. at 1089 (plaintiff sued to recover from defendants for land transaction, alleging
intermediary defendants‟ agent); Phx. W. Holding Corp., 18 Ariz. App. at 63, 500 P.2d at
323 (contracting party sought to enforce against corporate principal lease repayment
agreement entered into by corporation‟s putative agent); Schenks, 9 Ariz. App. at 556,
454 P.2d at 874 (automobile-accident victims sued automobile dealer for personal
injuries sustained in accident caused by dealer‟s alleged agent); Corral v. Fid. Bankers
Life Ins. Co., 129 Ariz. 323, 324-25, 630 P.2d 1055, 1056-57 (App. 1981) (decedent‟s
estate sued insurance company to enforce life-insurance contract submitted to insurance
agent but not accepted by insurance company at time of decedent‟s death).
13
Q: As the general contractor, you‟re the one that‟s
responsible for hiring the subcontractors?
A: Yes.
Q: Mr. Goodman doesn‟t tell you which subs to hire?
A: No.
Q: If there‟s a problem with the sub‟s work that‟s between
you and the sub?
A: Yes.
Q: When you hired PRE to work on projects, there were
some projects that you were working on for Mr.
Goodman but others that you were working on for other
people; correct?
A: Yes.
Q: When you hired PRE to do construction staking, you
never told them I‟m doing this work for Mr. Goodman or
somebody else?
A: No.
Q: When you hired them, they were working for you[?]
A: Yes.
Goodman nonetheless argues that PRE was aware of an agency relationship between
Goodman and TVH, relying on two other contracts between PRE and TVH pertaining to
other work performed on the same property that identified Goodman as “owner.”
Goodman also points out PRE had possessed a hydrology report for the property that had
been prepared for Goodman. Further, PRE had worked on Goodman‟s projects in the
past, and PRE recognized Patterson “comes in on behalf of Mike Goodman for his
14
projects.” But it is not the duty of the third person to determine the existence of a
principal, rather the duty is on the agent to disclose the principal at the time of the
transaction. Mahan v. First Nat’l Bank of Ariz., 139 Ariz. 138, 141, 677 P.2d 301, 304
(App. 1984), citing Myers-Leiber Sign Co., 2 Ariz. App. at 536, 410 P.2d at 493.
Goodman directs us to no evidence that at the time TVH hired PRE, it informed PRE or
indicated in any way that it was doing so in a representative capacity for Goodman.
Finally, even if Goodman had given TVH authority to bind him to some contracts, there
is no evidence he directed TVH to enter into this particular contract with PRE on his
behalf.
¶20 Because there is no evidence TVH was acting as Goodman‟s agent for the
staking contract, and PRE had no notice otherwise that Goodman was a party to the
contract, there was insufficient evidence for the jury to have found the existence of a
contract between PRE and Goodman based upon an agency theory. See generally
Restatement § 2.03 cmt. f (where principal undisclosed, third party has no knowledge
principal is party to contract). Accordingly, we conclude the trial court erred in denying
PRE‟s Rule 50 and 59 motions.
¶21 Because of our resolution of the contract issues, we need not address PRE‟s
additional argument that Arizona law limits Goodman to pursuing only remedies under
tort law.
Disposition
¶22 For the reasons set forth above, we reverse the trial court‟s entry of
judgment in favor of Goodman on his claim for breach of contract and its order denying
15
PRE‟s motions for post-trial relief under Rules 50 and 59, as well as its award of $80,000
in attorney fees. PRE has requested an award of its attorney fees under A.R.S.
§ 12-341.01, and, because it is the successful party on appeal, we grant its reasonable fees
upon compliance with Rule 21, Ariz. R. Civ. App. P. See Schweiger v. China Doll Rest.,
Inc., 138 Ariz. 183, 189, 673 P.2d 927, 933 (App. 1983). Goodman‟s request for attorney
fees on appeal is denied, and this case is remanded to the trial court for further
proceedings consistent with this opinion.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
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