State ex rel. Yost v. Summer Rays, Inc. ( 2019 )

[Cite as State ex rel. Yost v. Summer Rays, Inc., 2019-Ohio-3907.]
THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. [Dave Yost], :
Attorney General of Ohio,
:
Plaintiff-Appellee, Nos. 18AP-929 and
: 19AP-133
v. (C.P.C. No. 18CV-5717)
:
Summer Rays, Inc. et al., (REGULAR CALENDAR)
:
Defendants-Appellants.
:
D E C I S I O N
Rendered on September 26, 2019
On brief: [Dave Yost], Attorney General, Matthew T. Green,
William A. Sieck, and Tammy C. Chavez, for appellee [Dave
Yost], Attorney General of Ohio. Argued: William A. Sieck.
On brief: Strip Hoppers Leithart McGrath & Terlecky Co.,
LPA, Kenneth R. Goldberg, and Aaron C. Firstenberger, for
appellee Reg Martin, as Court Appointed Receiver.
Argued: Kenneth R. Goldberg.
On brief: Ronald B. Noga, for appellants.
Argued: Ronald B. Noga.
APPEALS from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendants-appellants, Summer Rays, Inc. ("Summer Rays"), Reynoldsburg
Revolve Church ("RRC"), and Charles Kirk, appeal from the November 5, 2018 and
February 4, 2019 orders of the Franklin County Court of Common Pleas authorizing and
Nos. 18AP-929 and 19AP-133 2
confirming the sales of four parcels of real estate by a court-appointed receiver. For the
reasons outlined below, we affirm.
{¶ 2} Summer Rays and RRC are Ohio non-profit 501(C)(3) charitable
organizations providing sober living housing, programming, and other assistance to
individuals recovering from substance abuse and addiction. Charles Kirk is the executive
director of both entities.1 Summer Rays and RRC hold title to more than two dozen
properties, mainly single family homes and duplexes which serve as sober living residences
for program participants. Summer Rays charges residents a monthly fee to live in its
properties. Residual expenses are paid out of profits earned through several businesses run
by Summer Rays.
{¶ 3} Following an extensive investigation, plaintiff-appellee, State of Ohio,
through the Ohio Attorney General, filed a complaint on July 9, 2018 alleging a pattern of
misappropriation and misuse of charitable funds and other abuses of the entities' charitable
status. The complaint specifically asserted claims for breach of fiduciary duty, conversion,
civil conspiracy, unjust enrichment, fraud, reformation of charitable trust, abuse of a
charitable trust, and other statutory violations involving falsification of records and
interference with appellee's investigation.
{¶ 4} Upon appellee's motion filed contemporaneously with the complaint, the
trial court issued a temporary restraining order and appointed an interim receiver.
Thereafter, on July 16, 2018, pursuant to an Agreed Order executed by the parties, the trial
court issued a preliminary injunction and lifted the interim designation from the receiver.
As pertinent here, the Agreed Order noted that appellee filed its motion for a temporary
restraining order "to preserve any charitable assets held by Defendants and to protect the
well-being of the individual residents of Summer Rays." (July 16, 2018 Agreed Order at 1.)
The Agreed Order provided the receiver with broad authority to "manage, operate, protect,
and have complete and exclusive charge and control of all of the assets, business and
operations of Summer Rays and RRC, without limitation, all real property." Id. at ¶ 4. In
1 Additional defendants in this action are Marsha L. Kirk (Charles Kirk's wife), Jacquelyn G. Kirk, Jenna
Kirk, Juliette Kirk (Charles Kirk's daughters), Tammy J. Gollihue, Teresa Perry, Deborah L. Garrison
(Charles Kirk's sister, cousin and aunt, respectively), and Heartland Bank. The individual defendants, other
than Juliette Kirk, are officers and/or directors of Summer Rays and/or RRC. Heartland Bank holds a
security interest in several properties owned by Summer Rays and/or RRC.
Nos. 18AP-929 and 19AP-133 3
addition, the Agreed Order authorized the receiver "to do all things and to take all actions,
in his judgment, that are necessary or appropriate to preserve, protect and maintain the
Assets." Id. at ¶ 6. The Agreed Order also provided that "[i]n the event the Receiver
determines the best use of the receivership estate would be the disposition of some or all of
the Assets, then the Receiver may make application to the Court for authorization to sell
the property, after notice and an opportunity to object has been given to all interested
parties." Id. at ¶ 27. Additionally, the Agreed Order stated that "[t]he Court hereby
approves the Receiver's retention of Lighthouse Behavioral Health Solutions
["Lighthouse"] to assist in the operation of Summer Rays and RRC." Id. at ¶ 34. Appellants
did not appeal the Agreed Order.
{¶ 5} On September 13, 2018, the receiver submitted his "First Report and
Receivership Plan" ("Report and Plan"). Therein, the receiver detailed the challenges
involved in assessing and gaining control of appellants' complex business operations and
assets. The receiver also described progress made by Lighthouse in managing the
operations of the sober living program. Noting that the revenue collected from program
participants was insufficient to maintain the sober living operation and pay receivership
expenses, the receiver determined it would be necessary to liquidate a portion of the real
estate. The receiver asserted that in order to avoid disturbing program residents, he would
begin by selling unoccupied properties. Appellants filed an objection to the Report and
Plan; the receiver filed a response.
{¶ 6} In accordance with the Report and Plan, the receiver obtained valuations of
the properties and began marketing them for sale. Thereafter, the receiver filed motions in
August, October, and December 2018 seeking court approval to sell four of the Summer
Rays/RRC properties in separate, private sales.2 In support of the motions, the receiver
attached copies of the proposed, signed purchase contracts, along with his personal
affidavit attesting, inter alia, that: the purchase prices were consistent with recent property
valuations and therefore reasonable; sales of the properties were in the best interest of the
receivership estate; sales of the properties would avoid continuing administrative expenses
2 The August motion involved a single-family dwelling at 408 Park Avenue in Kent, Ohio. The October
motion concerned single-family dwellings at 1504 Graham Road in Reynoldsburg, Ohio, and 1047 Hebron
Road in Buckeye Lake, Ohio. The December motion related to a duplex at 1273-1275 Lancaster Avenue in
Reynoldsburg, Ohio.
Nos. 18AP-929 and 19AP-133 4
and thus maximize the value for creditors of the receivership; the properties were
generating costs but no income for the receivership estate; and the properties were vacant
and therefore the sales would not displace any program residents. Appellee filed
memoranda supporting the motions. Appellants filed objections and memoranda contra,
and the receiver filed replies.
{¶ 7} On November 5, 2018, the trial court held a hearing on the receiver's Report
and Plan and his August and October motions for authority to sell the Park Avenue, Graham
Road, and Hebron Road properties. Counsel for the parties, the receiver, Heartland Bank,
and Harbor Recovery Residences (an affiliate of Lighthouse) argued their respective
positions. As relevant here, counsel for appellants argued that the receiver's plan
constituted a "plan of liquidation" in contravention of the Agreed Order, which, counsel
argued, was "supposed to be a status quo receiver." (Nov. 5, 2018 Tr. at 7, 9.) Counsel for
the receiver disputed the claim that the receiver intended to liquidate all of the assets of
Summer Rays and RRC. No evidence was presented at the hearing.
{¶ 8} Following the hearing, the trial court issued an order on November 5, 2018
approving the receiver's Report and Plan. In its order, the court authorized the receiver to
continue utilizing Lighthouse to operate the sober living facilities and to sell unoccupied
properties to meet operating costs and pay receivership administrative expenses, provided
that all purchase contracts were first presented to the court for approval. On the same day,
the trial court entered a separate order authorizing and confirming the sales of the Park
Avenue, Graham Road, and Hebron Road properties. On February 4, 2019, the trial court
entered an order authorizing and confirming the sale of the Lancaster Avenue property.3
Both orders directed the proceeds of the sales to be distributed at closing as follows: first,
to pay outstanding real estate taxes and assessments; second, to pay closing costs
attributable to the receiver; and third, to the receiver to be utilized in his discretion to pay
receivership administrative expenses, including fees and expenses of the receiver and his
counsel, but only upon the entry of a court order authorizing such payments.
3 No hearing was held on the December 11, 2018 motion to sell the Lancaster Avenue property.
Nos. 18AP-929 and 19AP-133 5
{¶ 9} Appellants have timely appealed from the November 5, 2018 and February 4,
2019 orders4 and assign the following three errors for this court's review:
[I]. The Trial Court has abused its discretion in permitting the
Receiver to subvert the purpose of Agreed Preliminary
Injunction Order which was to preserve the assets and the
community NOT liquidate it for profit.
[II]. There is no statutory authority for the appointment of
this Receiver under O.R.C. Section 2735.01 other than in
equity and therefore the Trial Court abused its discretion in
authorizing the sale of Defendants' property in the absence of
any showing of irreparable harm.
[III]. The Trial Court's order is internally inconsistent and is
an abuse of discretion as well as violative of Due Process.
{¶ 10} In their first assignment of error, appellants contend the trial court abused
its discretion in authorizing and confirming the sales of the four properties. We disagree.
{¶ 11} Pursuant to Ohio's receivership statutes, a trial court must exercise sound
judicial discretion in overseeing a receivership. State ex rel. Celebrezze v. Gibbs, 60 Ohio
St.3d 69, 74 (1991). Absent an abuse of discretion, a reviewing court will not disturb a trial
court's judgment. Id. "Abuse of discretion will not be found where the reviewing court
simply could maintain a different opinion were it deciding the issue de novo, but rather
represents an attitude that is unreasonable, arbitrary, or unconscionable." McGee v. C & S
Lounge, 108 Ohio App. 3d 656, 659 (10th Dist.1996).
{¶ 12} R.C. 2735.01 provides for the appointment of a receiver by a common pleas
court in specified circumstances. R.C. 2735.04(A) mandates that the powers of a receiver
be set forth in the court order appointing the receiver. Among those powers is the power to
"[s]ell and make transfers of real or personal property," under the control of the court that
appointed the receiver. R.C. 2735.04(B)(5). A trial court has discretion to limit or expand
the receiver's powers as it deems appropriate, Norris v. Dudley, 10th Dist. No. 07AP-425,
2007-Ohio-6646, ¶ 21, including the power to authorize the receiver to sell property at a
private sale free and clear of liens. Park Natl. Bank v. Cattani, Inc., 187 Ohio App. 3d 186,
4 Appellants' appeals from the trial court's November 5, 2018 and February 4, 2019 orders are docketed as
18AP-929 and 19AP-133, respectively. By journal entry filed April 3, 2019, this court granted the parties'
joint motion for leave to consolidate the cases for purposes of briefing, oral argument, and determination.
Nos. 18AP-929 and 19AP-133 6
189 (12th Dist.2010). An appellate court reviews a trial court's decision approving the
receiver's sale of real property for an abuse of discretion. Lucas v. Reywal Co., L.P., 10th
Dist. No. 17AP-479, 2019-Ohio-27, ¶ 19, citing Yidi, L.L.C. v. JHB Hotel, L.L.C., 8th Dist.
No. 104856, 2017-Ohio-1285, ¶ 7.
{¶ 13} In the present case, in accordance with R.C. 2735.04(A), the Agreed Order
sets forth the powers of the receiver. As noted above, one such power is set forth in
paragraph 27 of the Agreed Order, which expressly authorizes the receiver, upon a
determination that the best use of the receivership estate is to liquidate some of the real
property, to apply to the court for authorization to sell the property after notice and an
opportunity to object have been provided to all interested parties.
{¶ 14} Appellants do not contest the receiver's statutory authority to sell the
properties. Rather, appellants maintain that the trial court's orders authorizing and
confirming the sales of the properties essentially allowed the receiver to subvert the purpose
of the Agreed Order, which is, according to appellants, to preserve, not liquidate, the assets
included in the receivership estate. In support, appellants rely primarily on the
preservation of assets language set forth on page 1 and paragraph 6 of the Agreed Order.
However, appellants assign an unreasonably narrow construction to the term "preserve" as
used in the Agreed Order. Appellants essentially contend that "preserve" means that the
receiver is to do nothing more than hold the assets, including the real property. Indeed,
appellants asserted as much at the November 5, 2018 hearing, referring to the receiver as a
"status quo receiver." (Nov. 5, 2018 Tr. at 9.) Counsel for appellants echoed this position
at oral argument before this court, characterizing the receiver's plan as one of liquidation,
not preservation or maintenance of the status quo.
{¶ 15} We agree with the receiver that the term "preserve" as used in the Agreed
Order is more reasonably construed as preventing the assets from falling to waste,
deteriorating in value, or being subjected to improper use. Indeed, liquidation of some
assets may "preserve" other assets or the receivership estate generally. This broader
construction comports with the language of paragraph 27 of the Agreed Order. Appellants'
construction requires that paragraphs 6 and 27 be interpreted independently, that is, that
the "preserve" language in paragraph 6 be given effect without regard to the language in
paragraph 27 granting the receiver authority to liquidate assets. In essence, appellants'
Nos. 18AP-929 and 19AP-133 7
argument effectively eliminates paragraph 27 from the Agreed Order. As the Agreed Order
constitutes a binding contract,5 such a construction runs afoul of the fundamental principle
of contract interpretation that in determining the parties' intent, a court must read the
contract as a whole and give effect, if possible, to every part of the contract. Foster Wheeler
Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio St. 3d 353, 361-62
(1997).
{¶ 16} After a thorough review of the record, including the entire Agreed Order, and
under the facts of this case, we find that the trial court did not abuse its discretion in
authorizing and confirming the sales of the properties. The trial court was well within its
discretion in finding, based upon the undisputed evidence set forth in the receiver's
affidavit attached to the motions seeking authorization to sell the properties, that such sales
will help facilitate the administration of the receivership estate, that proceeds from the sales
are needed to maintain operations of the sober living facilities and pay the receivership
administration expenses, that the properties are vacant and the sales will not displace the
sober living residents, and that the purchase contracts represented commercially
reasonable prices for the properties. Accordingly, we overrule appellants' first assignment
of error.
{¶ 17} In their second assignment of error, appellants contend that there is no
statutory authority for the appointment of a receiver under R.C. 2735.01 other than in
equity; accordingly, the trial court abused its discretion in authorizing the sale of the
properties in the absence of a showing of irreparable harm.
{¶ 18} We note initially that appellants have waived any argument regarding
appointment of the receiver. The receiver was appointed pursuant to the Agreed Order to
which appellants were a party. The requirements of R.C. 2735.01 governing the
appointment of a receiver may be waived by contract. City Natl. Bank v. WBP Invest., LLC,
10th Dist. No. 10AP-1134, 2011-Ohio-6129, ¶ 12.
{¶ 19} Moreover, an order appointing a receiver is a final appealable order that
affects a substantial right in a special proceeding; R.C. 2505.02(B)(2). Hummer v.
5 "[A]n agreed order * * * in itself is a binding contract." GZK, Inc. v. Schumaker, 2d Dist. No. 22172, 2008-
Ohio-1980, ¶ 108, fn. 4, citing Hayes v. White, 7th Dist. No. 01 CO 00 (Dec. 3, 2001) (noting that "[a]n
agreed judgment entry is the court's acknowledgement that the parties have entered into a binding
contract.").
Nos. 18AP-929 and 19AP-133 8
Hummer, 8th Dist. No. 96132, 2011-Ohio-3767, ¶ 8, citing Cunningham v. Ohio Police &
Fire Pension Fund, 175 Ohio App. 3d 566, 2008-Ohio-218, ¶ 6 (8th Dist.). Thus, an order
appointing a receiver must be appealed within 30 days. Id., citing Hartley v. Hartley, 9th
Dist. No. 03CA0094-M, 2004-Ohio-4956, ¶ 12; App.R. 4(A). A party's failure to timely
challenge the appointment of a receiver precludes a later challenge to that appointment or
the authority granted the receiver. Id., citing Hartley at ¶ 12. Appellants do not argue, and
the record does not reveal, that they appealed any aspect of the Agreed Order, including the
appointment of the receiver. Accordingly, because appellants consented to the
appointment of a receiver under the Agreed Order and because no appeal was taken from
that order, the appointment may not be challenged herein.
{¶ 20} Furthermore, appellants have also waived the argument that the receiver's
authority to sell property is limited by "usages of equity" under R.C. 2735.04(A)(7) and
requires a demonstration that the sales were needed to avoid "irreparable" harm.
Appellants did not assert this argument in the trial court. In general, issues not raised
before the trial court are waived on appeal, and appellate courts need not consider errors
that the complaining party could have brought to the attention of the trial court at the time
the error could have been corrected. Parker v. Elsass, 10th Dist. No. 01AP-1306, 2002-
Ohio-3340, ¶ 14, citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St. 3d 78, 81
(1997).
{¶ 21} Additionally, nothing in R.C. Chapter 2735 requires a receiver to demonstrate
"irreparable harm" prior to seeking court approval to sell real property. The process by
which a receiver may sell real property is set forth in R.C. 2735.04(D). That process does
not include a demonstration of "irreparable harm." Rather, under R.C. 2735.04, applicable
conditions for the sale of real property pursuant to court approval are: that the prospective
purchaser and proposed terms of sale are identified (R.C. 2735.04(D)(2)(a)(ii)); that
interested persons are given written notice and an opportunity for a hearing (R.C.
2735.04(D)(2)(b) and (c)); and that the sales must be in the best interest of the receivership
estate, be fair to interested persons, be reasonable under the circumstances, and maximize
the return from the sale of the property to the receivership estate (R.C. 2735.04(D)(1)(a)
and (D)(3)(a)). In the present case, the trial court expressly found the requirements of R.C.
2735.04 were satisfied. (Nov. 5, 2018 Order at 2; Feb. 4, 2019 Order at 2.)
Nos. 18AP-929 and 19AP-133 9
{¶ 22} Moreover, appellants' reliance on this court's decision in Ohio Bur. of
Workers Comp. v. Am. Professional Emp., Inc., 184 Ohio App. 3d 156 (10th Dist. 2009) is
misguided. That case addressed what a party seeking appointment of a receiver must
demonstrate. To that end, we cited with approval cases from other appellate districts
stating that the appointment of a receiver is to be exercised only where the failure to do so
would place the petitioning party in danger of suffering irreparable loss or injury. Id. at
¶ 11, citing Equity Ctrs. Dev. Co. v. S. Coast Ctrs., Inc., 83 Ohio App. 3d 643, 649 (8th
Dist.1992). The case is not applicable here, as it does not concern the exercise of power by
a receiver who has already been appointed by the court with the agreement of the parties.
{¶ 23} Appellants' reliance on Lockard v. Lockard, 175 Ohio App. 3d 245 (4th
Dist.2008) is similarly unpersuasive. There, the plaintiff appealed a trial court order
appointing a receiver in a divorce action. The reviewing court found no abuse of discretion
in the trial court's decision to appoint a receiver; however, the court determined that "some
of the power and authority delegated to the receiver may be excessive." Id. at ¶ 11.
Specifically, the court took issue with the trial court ordering the receiver to take possession
of and sell the assets, including the inventory of the gun store owned by the parties, without
first providing the parties the opportunity to argue whether a particular asset was marital
or separate property. In addition, the court determined that ordering all the inventory of
the gun store to be sold "may cause irreparable injury to the business and prevent its
operation as an ongoing concern." Id. at ¶ 11. Accordingly, the court reversed the trial
court's judgment and remanded the matter for the trial court to determine, prior to the sale
of any asset, whether the asset was marital or separate property.
{¶ 24} Lockard is clearly distinguishable from the instant case, as there was no
agreement between the parties concerning the appointment of the receiver or the exercise
of power by the receiver. Furthermore, in the present case, the trial court conducted a
hearing prior to authorizing the sale of the properties at which appellants were provided
the opportunity to contest the sale.
{¶ 25} For all the foregoing reasons, we overrule appellants' second assignment of
error.
{¶ 26} Appellants' third assignment of error contends that the trial court's order is
internally inconsistent and violates due process. Again, we disagree.
Nos. 18AP-929 and 19AP-133 10
{¶ 27} Appellants' argument regarding the alleged inconsistency of the trial court's
order is premised upon the claim that because the proceeds of the approved sales will be
less than the incurred but unpaid expenses of the receiver and Lighthouse, other lienors of
the properties, including appellants, will lose their liens and recover no proceeds. However,
Ohio law protects owners and others having an equity of redemption under R.C.
2735.04(D)(7) and persons with a recorded or filed a lien under R.C. 2735.04(D)(2)(b) and
(D)(3)(b). The trial court's order ensured and found compliance with these statutory
protections. Further, appellants point to nothing in the record demonstrating that any
person has a recorded or filed lien encumbering any of the properties. Because the trial
court order properly protected liens, if any, affected by the proposed sales, no due process
violation occurred.
{¶ 28} Appellants next claim that their due process rights have been violated
because the properties are being liquidated by a receiver for whom no bond was demanded
in order to pay his own fees prior to any adjudication on the merits of appellee's complaint.
{¶ 29} We note initially that appellants' challenge to the receiver's $0 bond has been
waived. As set forth in the Agreed Order, a $0 bond was approved by the trial court with
agreement of the parties. Appellants did not appeal the Agreed Order and did not later
object to the proposed sales based on the $0 bond. Accordingly, appellants may not now
challenge the bond. "R.C. 2735.03 provides that the trial court has broad discretion to
determine the amount of the bond. Although the statute does not expressly authorize the
trial court to set bond at $0, we do not need to address the question of whether a bond of
$0 is appropriate today because we find that appellant waived this argument by not raising
it in the trial court." Heartland Bank v. LNG Resources, LLC, 10th Dist. No. 08AP-410,
2008-Ohio-6226, ¶ 12.
{¶ 30} Additionally, appellants' reliance on Peebles v. Clement, 63 Ohio St. 2d 314
(1980) is misplaced. Peebles involved a challenge to Ohio's prejudgment attachment
statute, R.C. Chapter 2715. The Supreme Court of Ohio held that "[t]he prejudgment
attachment procedure provided for in R.C. Chapter 2715 fails to give a defendant sufficient
due process guarantees under the United States and Ohio Constitutions due to the failure
of the statute to provide for judicial supervision of the procedure." Id. at paragraph two of
Nos. 18AP-929 and 19AP-133 11
the syllabus. Here, the statutory scheme governing receiverships set forth in R.C. Chapter
2735 provides for a full judicial review of pre-judgment sales by a receiver.
{¶ 31} In addition, Ohio courts have stated that a trial court does not abuse its
discretion in authorizing a pre-judgment power of sale by a receiver. In U.S. Bank, N.A. v.
Gotham King Fee Owner, L.L.C., 8th Dist. No. 98618, 2013-Ohio-1983, the property owner
in a foreclosure action argued that allowing the receiver to sell the property before a final
judgment in foreclosure improperly circumvented the due process protection afforded him
in the foreclosure proceeding. The court disagreed, reasoning that because a receiver sale
of property will only be granted upon court approval of the terms of the sale and upon notice
to all interested parties, the due process rights of the property owner were effectively
protected. Id. at ¶ 27. See also Yidi, 8th Dist. No. 104856, 2017-Ohio-1285, ¶ 12 (Ohio
receivership statute allows a receiver to sell real property pre-judgment free and clear of all
liens). Although Gotham King involved a receivership in a foreclosure action, the due
process principles underlying the court's decision apply in the present case. Here, the trial
court authorized sales of the properties only after it reviewed the fairness of the sale terms
and permitted appellants the opportunity to respond.
{¶ 32} Finally, appellants argue that the receiver's alleged confiscation of, and denial
of access to, all of appellants' personal and business records constitutes a denial of due
process. The receiver took possession of the records pursuant to the July 16, 2018 Agreed
Order. In August 2018, appellants filed a motion seeking access to the records, and the
matter was referred to a magistrate. In November 2018, pursuant to agreement between
the parties, the magistrate issued an order specifying the manner by which appellants were
to be provided access to the records. Appellants did not object to the magistrate's order.
Instead, in December 2018, appellants filed a second motion for access to the records,
arguing that the November 2018 agreement between the parties had proven unworkable.
The matter was again referred to a magistrate, who set the matter for hearing in February
2019. However, in an order filed prior to the hearing date, the magistrate vacated the
hearing date pursuant to a report from appellants' counsel indicating that the parties had
resolved the issue. The issue having been resolved, appellants' due process argument is
moot.
Nos. 18AP-929 and 19AP-133 12
{¶ 33} For all the foregoing reasons, we overrule appellants' third assignment of
error.
{¶ 34} Having overruled appellants' first, second, and third assignments of error, we
hereby affirm the orders of the Franklin County Court of Common Pleas.
Orders affirmed.
SADLER and NELSON, JJ., concur.