Samuel Kirkpatrick, Jr. v. Hidden View ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1585-15T3
SAMUEL KIRKPATRICK, JR.,
a minor by his g/a/l KAREN APPROVED FOR PUBLICATION
KIRKPATRICK and KAREN
KIRKPATRICK, individually, January 9, 2017
APPELLATE DIVISION
Plaintiffs-Appellants,
v.
HIDDEN VIEW FARM and
DOROTHY NESTI,
Defendants-Respondents,
and
MARY OROS,
Defendant.
__________________________________
Argued December 19, 2016 – Decided January 9, 2017
Before Judges Sabatino, Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-2317-14.
Ashley A. Smith argued the cause for
appellants (Eichen Crutchlow Zaslow &
McElroy, LLP attorneys; Christian R.
Mastondrea, on the brief).
Stephen J. Spudic argued the cause for
respondents (Britt, Riehl & Spudic, PC,
attorneys; Mr. Spudic, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal concerns whether the personal injury liability
immunity the Legislature created under the Equestrian Activities
Liability Act (the "Equine Act"), N.J.S.A. 5:15-1 to 12, applies
to a minor who accompanied family members to a horse farm but
who did not personally take part in any horse-related activity
there. The minor was bitten by another boarder's horse as he
walked by its stall. His mother was nearby in the stable at the
time, cleaning out the adjacent stall of her own horse.
The trial court held that the Equine Act's statutory
immunity applied to this situation, and granted summary judgment
to the defendant horse farm and its owner. We agree with the
court that although the minor did not ride or take care of any
horses the day he was bitten, his role in accompanying his
mother and sister, who were engaged themselves in such equine
activities, placed him within the immunity statute's broad
definition of a covered "participant," N.J.S.A. 5:15-2.
Consequently, we affirm.
I.
We derive from the summary judgment record these salient
facts that bear upon the immunity issues. In doing so, we
consider the record in a light most favorable to the movants.
2 A-1585-15T3
R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995); see also W.J.A. v. D.A., 210 N.J. 229, 237-38
(2012) (applying the same summary judgment standards on appeal).
Defendant Dorothy Nesti is the owner of co-defendant Hidden
View Farms, a horse farm in Monroe Township. For many years,
Nesti has operated the farm and provided riding lessons there.
The farm has quarters for twenty-five to thirty horses in
several stables. The stalls within those stables are
approximately twelve by fifteen foot enclosures.
The barn where the biting incident occurred has three
stalls. "Fanny" (apparently shortened from "Fantasma"), the
horse that bit the minor plaintiff, Samuel Kirkpatrick, Jr.
("Samuel"), occupied the middle stall. "Eclipse," the horse
owned by the plaintiff mother Karen Kirkpatrick1, used the stall
farthest from the barn entrance. All of the stalls had half-
door openings, through which a horse could stick its head out.
The openings were about twelve feet apart so that horses in
adjacent stalls could not reach each other. The stalls were
separated by plywood walls that extended to the ceiling.
Outside the stable, the farm had posted liability warning
signs referring to the Equine Act. Karen acknowledged at her
1
To avoid confusion among the family members, we at times refer
to the mother by her first name, intending no disrespect.
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deposition that she had read the signs before the biting
incident.
Karen is the mother of three children: a daughter who was
age sixteen at the time of the incident; an older son who was
then age twelve; and Samuel, who was then age nine. Karen has a
bachelor's degree in animal science. She has owned horses
intermittently since she was fifteen. She has competed in 4H
fairs, and has taught riding to others.
Karen met Nesti when she was in high school. Due to their
mutual interest in horses, they often interacted over the course
of twenty-five years. Nesti gave the horse Eclipse to Karen for
free in the spring of 2012, after the Kirkpatricks had donated
money to Nesti's horse rescue operation. Karen paid monthly
fees to board Eclipse at Hidden View Farm.
Karen testified that, although her daughter took formal
riding lessons on Eclipse, her sons were never formally trained
as riders. Before the biting incident, Samuel would
occasionally mount Eclipse while being led around by an adult,
in the style of a "pony ride."
Fanny is a gelding of the Paso Fino breed. He was
approximately sixteen to eighteen years old at the time of the
incident. Fanny had boarded at Hidden View Farm for eight
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years. Nesti owned Fanny for two years before selling him to
co-defendant Mary Oros in 2007.
Oros has owned seven horses in her life. She did not ask
Nesti about Fanny's temperament before purchasing him, but did
ride him beforehand. After becoming Fanny's owner, Oros paid a
monthly fee to board Fanny at Hidden View Farm.
According to Oros, prior to the incident with Samuel, she
had not witnessed Fanny acting aggressively towards people or
animals. However, she did testify that Nesti told her Fanny had
bitten a dog after the dog first bit Fanny.
Although horses were frequently moved around different
stalls at Hidden View Farm, Karen testified that she had cleaned
Eclipse's stall, when it was located next to Fanny's stall,
about five to seven times before the biting incident. Sometimes
Karen gave Fanny hay, but she would not directly feed him.
Karen stated that Fanny would "pin his ears back when you walked
by, but you just stayed away." She also noticed he would be
"s[w]ishing tails. Just signs of aggravation."
During her own deposition, Nesti acknowledged that she had
seen Fanny act aggressively toward other horses and dogs but not
people. In particular, she recalled seeing Fanny pick up an
eighty-pound dog with its mouth and hurl the dog about two feet.
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She denied telling anyone that Fanny was aggressive toward
humans.
In the summer of 2013, Nesti underwent foot surgery.
Consequently, she used crutches or an ATV to move around the
farm. Karen helped Nesti on the farm while she recovered.
Karen did so by teaching lessons and cleaning stalls, in
exchange for discounts on board and horse transportation.
Occasionally, Nesti would pay Karen for her services in cash.
Karen testified that she spent three to four days a week at
Hidden View Farm that summer, for "anywhere from two to eight"
hours each day. She would bring her daughter along to ride
horses. Sometimes, she also would bring her two sons.
Samuel estimated at his deposition that he visited the farm
"a couple of times a week" throughout the summer of 2013. Karen
testified that, while she was on the property, Samuel and his
brother would typically spend their time in the common area, run
in the yard where there was a swing set, or play "by the pond
and look for toads and look for snakes and turtles."
Nesti testified that she sometimes complained to Karen
about the boys "climbing on hay feeders" in the horse fields, or
climbing too high in trees where Nesti "was afraid they were
going to fall." Even so, Nesti described the boys generally as
"good kids."
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During her deposition, Karen testified that she told Samuel
and his brother not to "approach any horse unless an adult is
with you and you have their permission." Karen also recalled
that she told Samuel not to "pet or feed any horse without
permission."
Samuel accompanied his mother and siblings to Hidden View
Farm on the morning of the incident, September 2, 2013.
According to his mother, Samuel was then about four foot, three
or four inches in height, and he weighed sixty to sixty-five
pounds.
Samuel testified that he knew his mother was helping Nesti
while she recovered from her foot injury by "clean[ing] the
stalls and teach[ing] lessons[.]" During his time at the farm,
Samuel would "help my mom and play with my brother." Although
he recalled that Nesti warned him not to "run around the
horses," he does not remember if Nesti told him not to go to the
horse stalls if his mother was not around. He testified that
his mother did tell him "to stay away from any horse I didn't
know."
Samuel testified that he had previously ridden Eclipse and
learned how to groom horses. However, on the day of the
incident, he did not interact with Eclipse or any horse other
than his unplanned encounter with Fanny.
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As recounted by Karen, on the morning of the incident, she
took her children to Hidden View Farm for about three hours.
She testified that Samuel and his brother played at the pond,
while she was in the nearby riding ring.
According to the daughter's deposition testimony, she was
at the farm "almost every day" that summer. She not only would
ride Eclipse and some of the other horses, but also would assist
her mother with chores on the farm, such as "getting water" and
"cleaning stalls." When she arrived with her mother and
brothers on the morning of the incident, the daughter helped
feed the horses by filling the buckets in their stalls, although
she was not sure if she fed Fanny. She recalled that she also
"pulled down hay" with her mother for the horses. Her mother
then began teaching. While her mother was teaching, the
daughter would "clean everything up and put it back in the tack
room," and "go and make sure everyone had water."
Karen testified that she gave a lesson on the morning of
the incident for about forty-five minutes. She testified that
she could see the boys from the riding ring. Around noon, she
returned to the stables, where she began to clean Eclipse's
stall. Karen testified that she could still see the boys at the
pond from the stalls, which was about thirty yards away. During
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this time, her daughter was walking from the other horse field
toward Eclipse's and Fanny's stable.
Karen testified that she had been cleaning Eclipse's stall
for about ten minutes before Samuel's accident. Using a
pitchfork, she was shoveling debris into a "muck tub" when
Samuel began to walk toward Eclipse's stall.
Karen did not see Fanny bite Samuel. She turned back into
the stall, and then the next thing she heard was Samuel
screaming that the horse had bit him. As Samuel described it,
he
[w]ent to ask my mom when we were
leaving . . . and she was in the stall of
our horse, Eclipse's stall, cleaning it and
I was walking over to ask her when we were
leaving. And there – when I was walking into
our horse's stall, another horse, he peeked
his head out of his stall and I stopped and
looked at it. And then he pinned his ears
back and I remember my mom told me that
means he's mad. And so – so before I could
react, he leaned forward really fast and bit
– well, he tried to bite my head, but I put
my arm up to stop him and he bit my arm. And
I pulled back so he wouldn't like grab my
arm and pull it to him. So I pulled back and
I yelled and my mom came out and carried me
to the barn and she put a gauze on my arm
and the ambulance came and that's all I
remember.
Karen then saw Samuel holding his right arm. She "picked
him up and . . . put the piece of skin that was hanging off,
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[and] just flipped it forward so that he couldn't see it." She
yelled for Nesti to call an ambulance.
When Samuel was bitten, Nesti was outside the stable about
100 feet away on an ATV. At her deposition, she testified that
she saw Samuel come out of Fanny's stall after he screamed. She
could not say precisely where Samuel was when he was bitten, but
believed he had been in Fanny's stall at the time. She referred
to the incident as "an unfortunate accident that the poor little
kid got hurt."
Samuel testified that this was the first time he saw Fanny.
He had never ridden, pet, or fed the horse before. When Fanny
bit him, Samuel testified that he was not trying to pet or feed
the horse.
Samuel was taken by an ambulance to a local hospital, where
a doctor sewed his wound shut. He spent the night at the
hospital before being released home the next day. He had
several plastic surgeries thereafter. He claims to have
sustained residual scarring and other alleged injuries that do
not bear upon the immunity analysis involved in this appeal.
As guardian ad litem for Samuel, Karen filed a personal
injury negligence action in the Law Division on his behalf and
individually against Nesti, Hidden View Farm, and Oros. In
essence, plaintiffs contended that defendants should have been
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aware of Fanny's proclivity for aggressive behavior and taken
precautions that would have prevented the horse from biting
Samuel. Plaintiffs retained an equine expert to support those
claims. In the expert's written report and deposition
testimony, she opined that Fanny had exhibited sufficient
indicia of aggressiveness to require measures to keep him a safe
distance from others in the barn. Specifically, the expert
testified that defendants should have posted a specific warning
sign by Fanny's stall, stating, "Be careful. This horse bites."
Defendants denied liability. They each filed counterclaims
against Karen, alleging that she failed to supervise Samuel
sufficiently while he was on the property, a contention that
Karen denied. See Foldi v. Jeffries, 93 N.J. 533 (1983)
(recognizing a limited exception to parental tort immunity in
circumstances of willful or wanton neglect).
All defendants moved for summary judgment. After hearing
oral argument, Judge Joseph L. Rea granted the motions. With
respect to Oros, Fanny's owner, the judge concluded that
plaintiffs had not shown that Oros had breached any alleged duty
to Samuel.2 As to Nesti and the farm, the judge ruled that
plaintiffs' claims against them were barred as a matter of law
2
Plaintiffs have not appealed the summary judgment granted to
Oros.
11 A-1585-15T3
by the immunity afforded in the Equine Act. Given those
rulings, the judge dismissed the counterclaim as moot.
Plaintiffs now appeal, essentially contending that the
trial court erred as a matter of law in finding that Nesti and
the farm are immunized under the Equine Act from liability in
this setting. Nesti and the farm have provisionally cross-
appealed, seeking to revive the counterclaim for parental
neglect if and only if the complaint is reinstated.
II.
In 1997, the Legislature enacted the Equine Act, which
limits how and when a person injured by equine animals may sue
in tort. N.J.S.A. 5:15-1 to -12. The Legislature found that
large numbers of citizens practiced activities with equine
animals and those activities contributed to the State's economy.
N.J.S.A. 5:15-1. Lawmakers also found that "horse farms are a
major land use which preserves open space." N.J.S.A. 5:15-1.
See also Hubner v. Spring Valley Equestrian Ctr., 203 N.J. 184,
195-207 (2010) (detailing in depth the legislative history,
objectives, and terms of the statute).
Because it deemed these equine activities to "involve risks
that are essentially impractical or impossible for the operator
to eliminate," the Legislature declared that the risks of injury
arising from equine activities "must be borne by those who
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engage in those activities." N.J.S.A. 5:15-1. Accordingly, as
a matter of risk allocation, the Legislature crafted the
immunities from liability codified in the Equine Act. The
statute mandates, subject to certain narrow exceptions, that
"the participant voluntarily assumes [the risk] for which there
can be no recovery." N.J.S.A. 5:15-1.
The Equine Act specifically defines the "operators" who it
generally shields from tort liability and the "participants" and
"spectators" who instead bear the risk. An "operator" means "a
person or entity who owns, manages, controls or directs the
operation of an area where individuals engage in equine animal
activities whether or not compensation is paid." N.J.S.A. 5:15-
2. Plaintiffs do not dispute that defendants Nesti and Hidden
View Farm are "operators" of an equine facility within the
meaning of the statute.
Most importantly for purposes of this case, the Equine Act
very broadly defines the term "participant" to encompass:
any person, whether an amateur or
professional, engaging in an equine animal
activity, whether or not a fee is paid to
engage in the equine animal activity or, if
a minor, the natural guardian, or trainer of
that person standing in loco parentis, and
shall include anyone accompanying the
participant, or any person coming onto the
property of the provider of equine animal
activities or equestrian area whether or not
an invitee or person pays consideration.
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[N.J.S.A. 5:15-2 (emphasis added)].
Further, the statute defines a "spectator" as "a person who is
present in an equestrian area for the purpose of observing
equine animal activities whether or not an invitee." N.J.S.A.
5:15-2.
An "equine animal activity" is defined within the statute
as:
any activity that involves the use of an
equine animal and shall include selling
equipment and tack; transportation,
including the loading and off-loading for
travel to or from a horse show or trail
system; inspecting, or evaluating an equine
animal belonging to another person whether
or not the person has received compensation;
placing or replacing shoes on an equine
animal; and veterinary treatment on an
equine animal.
[N.J.S.A. 5:15-2].
The Legislature placed the burden on "participants" and
"spectators" of "equine animal activities" to assume the risks:
created by equine animals, weather
conditions, conditions of trails, riding
rings, training tracks, equestrians, and all
other inherent conditions. Each participant
is assumed to know the range of his ability
and it shall be the duty of each participant
to conduct himself within the limits of such
ability to maintain control of his equine
animal and to refrain from acting in a
manner which may cause or contribute to the
injury of himself or others, loss or damage
to person or property, or death which
results from participation in an equine
animal activity.
14 A-1585-15T3
[N.J.S.A. 5:15-3 (emphasis added)].
The statute's non-exhaustive list of such inherent risks
includes "the propensity of an equine animal to behave in ways
that may contribute to injury, harm or death to nearby persons."
N.J.S.A. 5:15-2(a) (emphasis added). In addition, the risks
include "the unpredictability of an equine animal's reaction to
such phenomena as sounds, sudden movement and unfamiliar
objects, persons or other animals." N.J.S.A. 5:15-2(b)
(emphasis added). See also Hubner, supra, 203 N.J. at 196.
To implement the assumption of risk denoted in N.J.S.A.
5:15-3, the Legislature imposed in N.J.S.A. 5:15-5 a "complete
bar of suit" against an operator by a "participant for injuries
resulting from the assumed risks[.]" N.J.S.A. 5:15-5. As the
Supreme Court noted in Hubner, supra, 203 N.J. at 197, the
"apparent breadth" of these liability protections for equine
operators is "tempered" by certain limited exceptions set forth
in N.J.S.A. 5:15-9.
Among other things, the codified exceptions include
"knowingly providing equipment or tack that is faulty to the
extent that it causes or contributes to injury," N.J.S.A. 5:15-
9(a); "failure to make reasonable and prudent efforts to
determine the participant's ability to safely manage the
particular equine animal," N.J.S.A. 5:15-9(b); a participant's
15 A-1585-15T3
injury or death caused by "a known dangerous latent condition or
property" without posted warning signs, N.J.S.A. 5:15-9(c); acts
or omissions that "constitute[] negligent disregard for the
participant's safety," N.J.S.A. 5:15-9(d); and "intentional
injuries to the participant" caused by an operator, N.J.S.A.
5:15-9(e).
As the Court determined in Hubner, the statute's listed
exceptions to an operator's immunity from liability are limited
in scope. "[T]he Legislature intended that the provisions
expressing the scope of the risks assumed would be read broadly
in favor of the operators, while the obligations of the
operators would be narrowly construed if the two sections of the
statute appear to conflict." Hubner, supra, 203 N.J. at 203-04.
To obtain recovery, "the participant must demonstrate that the
injury arose not because of one of the inherent dangers of the
sport, but because the facility's operator breached one of the
duties it owes to the participant, as defined in the statute's
exceptions." Id. at 206. The Court reasoned that, "[a]
contrary approach, in which the exceptions are read expansively,
would threaten to upset the choice that the Legislature has
made, because it would potentially permit the exceptions to
extinguish the statute's broad protective scope." Ibid.
16 A-1585-15T3
To illustrate this point, the Court in Hubner noted that an
operator would not be shielded by the statute if it allowed its
premises to fall into such disrepair that a stall door with
rusted hinges fell upon a participant. Id. at 206-07. By
contrast, if a horse were frightened by a loud noise and ran
head-long into a stall door causing a similar injury, the claim
would be barred by the statute "because the behavior of the
horse, and assumed risk, was the cause." Id. at 207.
In keeping with these principles, the Court in Hubner
enforced the statute's immunity in a situation in which a
plaintiff sued a horse farm for injuries sustained while a horse
she was riding tripped over equipment (a "cavaletti") left on
the floor of the riding ring, reared, and threw her. Id. at
190. The Court's analysis largely centered on whether the
equipment the horse tripped over was "faulty" so as to trigger
the "faulty equipment" exception to immunity delineated in
N.J.S.A. 5:15-9(a). Id. at 190-92. The Court concluded that
the equipment was not faulty, and the possibility of a horse
tripping over riding equipment and throwing a rider were
inherent dangers of equine activity for which the plaintiff bore
the risk. Id. at 207. Hence, the statute's immunity for such
inherent dangers applied to insulate the defendant operator,
17 A-1585-15T3
resulting in the Court reinstating summary judgment for the
operator.
The critical legal issue presented here is whether Samuel
should be classified as a "participant" for purposes of the
Equine Act. Neither Hubner nor the only other reported New
Jersey case applying the statute have addressed such a
classification issue with respect to a plaintiff, such as this
minor, who accompanied another person who was using an equine
facility. See Stoffels v. Harmony Hill Farm, 289 N.J. Super.
207, 217-19 (App. Div. 2006) (analyzing whether a defendant
horse farm was negligent for having an inexperienced rider on an
aggressive horse).
For the reasons that follow, we conclude that the trial
court correctly resolved this question of first impression and
deemed this minor plaintiff to be a "participant" covered by the
broad definition in N.J.S.A. 5:15-2.
As we have already pointed out, the statute's broad
definition of a "participant" sweeps in not only persons who are
"engaging in" equine animal activities, but also "anyone
accompanying" such individuals. N.J.S.A. 5:15-2. In addition,
although we need not reach this additional facet, the definition
extends even further to "any person coming onto the property of
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the provider of equine animal activities or equestrian area
whether or not an invitee or person pays consideration." Ibid.3
We concur with Judge Rea that Samuel falls within the
statute's expansive definition of a "participant." First, we
agree with the judge's finding that both Karen and Samuel's
sister were on the premises that day to engage in "equine animal
activities" within the meaning of the statute. Karen was on the
premises to give a riding lesson to another equestrian, and
thereafter to clean out her horse's stall. She and Samuel's
sister also performed various horse-related chores for the owner
that day, including apparently feeding the horses and providing
them with hay. Although their efforts seem to have been
motivated, at least in part, by commendable altruism in helping
out a friend after her surgery, the substantive nature of their
activities was clearly within the zone of equine activities
covered by the statute. Both Karen and Samuel's sister were
thus themselves "participants" within the meaning of N.J.S.A.
5:15-2.
As the next step of the analysis, we consider Samuel's
status with reference to that of his other family members. We
3
We do not need to consider here, for example, whether the
definition and statutory immunity logically should extend to a
mail carrier or delivery person who is simply on the premises
and not accompanying an equine activity participant, when such a
person is injured by a horse.
19 A-1585-15T3
agree with the motion judge that he was not a "spectator" within
the terms of N.J.S.A. 5:15-2 because he was clearly not on the
premises "for the purpose of observing equine activities" by his
mother or sister. Instead, Samuel was at the farm, as he had
been many times during that summer, to play with his brother on
the property by the pond and in the common area. He essentially
was there for recreation while school was not in session and
where his mother could attempt to watch over him while she went
about her teaching, chores, and other horse-related endeavors.
Plaintiffs argue that because Samuel was not at the farm to
use the facility himself for equine-related purposes, he cannot
be considered a "participant" under the statute. But that
argument overlooks the statutory definition's expansive
inclusion of not only persons who engage in equine-related
activities, but also those who "accompany" such persons. See
also N.J.S.A. 5:15-2(a) (noting the risks of injury that horses
can pose to "nearby" persons). The plain meaning of the words
of the statute controls. Bd. of Educ. of Neptune v. Neptune
Twp. Educ. Ass'n, 144 N.J. 16, 25 (1996) (instructing that a
statute's plain meaning controls if it is "clear and unambiguous
on its face and admits of only one interpretation").
Samuel was clearly accompanying his mother and sister on
the premises. He did not come to the premises on his own. In
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fact, perhaps ironically, he was injured while walking into the
stable to speak to his mother about when they would be leaving
the premises together.
It is irrelevant that, when briefly questioned about
Samuel's status by plaintiffs' counsel at her deposition, Nesti
stated that she did not consider him a "participant" in equine
activities. Her understanding of the term as a layperson does
not bear upon the legal question. See N.J.R.E. 701 (reciting
the limited grounds for the admission of lay opinions). It is
the "court's function," not a witness's, to answer questions of
law. Bedford v. Riello, 392 N.J. Super. 270, 278 (App. Div.
2007), rev'd on other grounds in part, aff'd in part, 195 N.J.
210 (2008). Any opinions given by witnesses, experts or
otherwise, on questions of law need not be accepted by reviewing
courts and may be disregarded. Perez v. Rent-A-Center, Inc.,
375 N.J. Super. 63, 73 (App. Div. 2005), rev'd on other grounds,
186 N.J. 188 (2006).
As we have already pointed out, the Equine Act adopts a
stylized definition of "participant" much broader than the
term's conventional meaning, undoubtedly in an effort that is to
advance the strong immunity policies underlying the legislation.
Moreover, we note that counsel did not furnish the broader
statutory definition to Nesti when he posed the question to her.
21 A-1585-15T3
Hence, her unschooled lay response on this nuanced definitional
question is inconsequential.
Having resolved that Samuel was indeed a participant within
the scope of the law, we further agree with the trial court that
there are no genuine issues of material fact that could defeat
defendants' immunity from suit. None of the limited exceptions
set forth in N.J.S.A. 5:15-9 pertain here. This unfortunate
event was instead the result of the inherent proclivities of
horses at times to bite or nip at humans who are within or near
their physical space. Even if we accept at face value the
opinions of plaintiffs' expert that this particular horse was
known to be aggressive and prone to biting and that stronger
warnings may have reduced the risks of harm, her views do not
take this event out of the zone of the legislatively-crafted
immunity.
Summary judgment as to defendants Nesti and Hidden View
Farm is affirmed. We have no need to address the dismissal of
defendants' provisional counterclaim.
Affirmed.
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