Wells Fargo Bank v. Siegel, Paul

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2581
W ELLS F ARGO B ANK, N.A.,
Plaintiff-Appellant,
v.
P AUL S IEGEL,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5635—Samuel Der-Yeghiayan, Judge.
____________
A RGUED JANUARY 22, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before E ASTERBROOK, Chief Judge, and W OOD and SYKES,
Circuit Judges.
W OOD , Circuit Judge. Ty-Walk Liquid Sales, Inc., pro-
vided products and marketing services to farmers. Unfor-
tunately, it fell on hard times and closed its doors on
August 23, 2001, leaving behind millions of dollars of debt
that it owed to Wells Fargo Bank, N.A. The debt was
secured by, among other things, Ty-Walk’s accounts
receivable, and one of those accounts was with defendant
2 No. 07-2581
Paul Siegel. When it could not collect from Ty-Walk, Wells
Fargo turned to Siegel to collect the monies Siegel owed
to Ty-Walk under an oral contract. After a bench trial,
the district court concluded that the scope of the agree-
ment was not as broad as Wells Fargo believed, and thus
that Wells Fargo could not recover against Siegel. Wells
Fargo appeals; we affirm.
I
Over the years, Wells Fargo loaned a substantial amount
of money to Ty-Walk, which was in the business of selling
fertilizer, chemicals, and various farming services, includ-
ing a grain-marketing program through which Ty-Walk
tried to help grain producers obtain the best price for
their production. At times, the program included trading
in grain futures.
One of Ty-Walk’s customers was Paul Siegel, who has
been a farmer since the mid-1970s. Siegel’s relation with
Ty-Walk began in the early 1990s, when he attended
several meetings at Ty-Walk’s facilities about grain market-
ing and trading. Siegel also had face-to-face discussions
about grain-marketing strategies with Ty-Walk’s CEO,
John C. (“Buzz”) Gibbons. Frequently giving informal
sales pitches to farmers at breakfast meetings, annual
dinners, barbeques, and the like, Gibbons was the face and
engine of Ty-Walk. Around 1995 Siegel decided to move
his business to Ty-Walk, because it charged a lower
commission than the company he had been using. At
first Siegel simply bought fertilizer and chemicals from Ty-
Walk; soon he began to participate in its marketing pro-
No. 07-2581 3
gram. It is undisputed that at that time, Siegel and Gibbons
(speaking for Ty-Walk) entered into an oral contract that
set the terms of Siegel’s participation in the program. The
point of contention is whether that agreement included
Siegel’s authorization for Ty-Walk to trade futures on his
behalf.
Siegel kept his business with Ty-Walk for six years, until
Ty-Walk ceased operations on August 23, 2001, and Wells
Fargo sued to recover the millions that Ty-Walk owed
on its loans. Wells Fargo’s suit in the Circuit Court of
Kendall County resulted in an order granting it possession
of the collateral on those loans. That order may have
ended one phase of the litigation, but it marked the
beginning of a new one: Wells Fargo’s collection efforts.
One step Wells Fargo took was to send a letter to Siegel,
demanding that he pay Wells Fargo $380,525.32, the
balance that Wells Fargo alleged was due on Siegel’s
marketing-program account. The letter further demanded
that Siegel pay another $50,785.16, the amount that Wells
Fargo said was due on a loan that Siegel took out from the
Commodity Credit Corporation (“CCC”), a U.S. govern-
ment agency that loans money to farmers using com-
modities as collateral. Both parties agree that Ty-Walk
paid off the CCC loan on Siegel’s behalf in September 2000.
The question remaining is whether Siegel repaid Ty-
Walk for its discharge of that debt: Wells Fargo says no;
Siegel says yes.
When Siegel ignored its payment demand, Wells Fargo
initiated this lawsuit in federal district court, invoking the
court’s diversity jurisdiction. It claimed that Siegel had
4 No. 07-2581
breached his contract with Ty-Walk by failing to pay Ty-
Walk the sums due under his marketing-program
account and his CCC loan, and (by virtue of the state court
order) that Siegel now owed those sums to Wells Fargo.
The complaint, filed in September 2005, also asserted a
third claim, based on approximately $20,000 in goods and
services that Ty-Walk allegedly provided to Siegel but
for which Siegel had not paid. After discovery, Wells
Fargo moved for summary judgment on each claim. The
district court denied the motion for the counts based on
the marketing-program account and the CCC loan, but
granted it with respect to the claim for $20,000 in goods
and services. Siegel’s post-trial motion challenging the
$20,000 judgment against him was denied; he paid the
amount due on that claim.
Wells Fargo’s remaining two claims proceeded to a bench
trial, which took place on April 23-24, 2007. Wells Fargo
did not produce a single witness who could testify about
the formation of any contract, verbal or otherwise, between
Ty-Walk and Siegel. Instead, the bank relied primarily
on documentary evidence, including Ty-Walk’s financial
records and accounting books, audit letters, and commod-
ity statements sent to Siegel purportedly reflecting the
status of his account. It also introduced more than 200
documents evidencing individual transactions between
Siegel and Ty-Walk over the course of their six-year
business relations. Wells Fargo argued that these docu-
ments provided conclusive proof that Siegel and Ty-Walk
had an oral agreement, and that the agreement included
Siegel’s authorization for Ty-Walk to engage in futures
trading on his behalf.
No. 07-2581 5
In its appellate briefs, Wells Fargo refers to the docu-
ments showing individual transactions between Siegel and
Ty-Walk as “contracts.” Each document shows the crop
year in which that particular trade took place. Some, but
not all, of them refer to “corn futures” or “bean futures,”
and some use other words, such as “puts” and “calls,” that
imply futures-trading transactions. For each of these
documents, Ty-Walk sent a trade-confirmation invoice
to Siegel. Siegel kept a copy of the invoices in his files,
and many of them were entered into evidence.
Siegel testified at the trial on his own behalf. Indeed,
with respect to the CCC loan, he provided the only evi-
dence in the record. We address everything related to that
issue below. With respect to the alleged debts related to
futures trading, Siegel asserted that his arrangement with
Gibbons (and hence Ty-Walk) was only an agreement
to sell grain for cash. He maintained that he did not
anticipate any futures trading, and that he never gave Ty-
Walk permission to perform options or futures trading
on his behalf. Rather, as he described it, he simply deliv-
ered grain to Ty-Walk and got paid for it. He never
thought that he owed any balance to Ty-Walk, because
only a few days normally elapsed between his delivery of
the grain and his receipt of payment. As for the docu-
ments that Wells Fargo now calls “contracts,” Siegel
testified that they were not intended to be contracts at all;
they were just the records generated after a trade took
place, to confirm that the transaction had occurred. Ty-
Walk sent them to Siegel with instructions that he sign and
return them, and he obliged. He testified—and the docu-
ments plainly show—that Siegel frequently put question
6 No. 07-2581
marks and comments on the forms. He explained that he
did so because he did not understand the terms and
wanted to indicate that he neither understood nor agreed
with the parts of the documents to which his comments
were directed. Though he often wrote questions on the
forms before returning them, no one from Ty-Walk re-
sponded to his concerns.
Siegel also testified about a series of audit confirmation
letters that were entered into evidence. The letters were
similar to the commodity statements that Siegel received,
in that each showed the amount that Ty-Walk believed
Siegel owed on his marketing-program account as of a
given date. The audit letters requested that Siegel confirm
“directly to our auditors . . . the amount receivable
from you/payable to you on [date] on your farmer market-
ing account.” They then displayed two columns: “Crop
Year” and “Amount Due.” The last line of the columns
reflected the total balance that Ty-Walk thought was
owed (or due) on the account, followed by an instruction
that the letter’s recipient should “inform our auditors
whether this balance is in agreement with your records.
Indicate your answer below and mail it to our auditors
in the enclosed, pre-addressed, stamped envelope.” At the
bottom of the page were two choices, followed by a
signature line:
____ The balances shown above are correct.
____ The balances shown above are not correct. See
detail of the difference on the reverse side of this form.
On the audit letters dated August 19, 1998, and September
2, 1999, Siegel put an “x” next to the option stating that the
No. 07-2581 7
balances were not correct, but he did not provide any
explanation on the back of the form before signing and
returning it. On the 1999 letter, however, he wrote that the
amounts reflected “are not cash debt but Grain to be
delivered.” He testified at trial that what he “was trying
to say” with that note was that “I had confusion about
why I ever got this and that I was simply making a state-
ment that my account with Ty-Walk was zero and that
the only ongoing [activity on the account] was that I was
selling grain.”
On the last audit letter in the record, dated August 25,
2000, Siegel checked the box stating that the “balances
shown above are correct.” Next to that he wrote, “Per
phone call with Buzz 9/28/00 and its clarifications. PS.”
Siegel signed the letter on October 3, 2000. At trial, Siegel
testified that he had gotten a letter identical to the one
dated August 25, 2000, approximately one month before
the letter reproduced in the record arrived. We cannot
find a copy of this first letter in the record, but Siegel
stated that he received it, reviewed it, and, as he had
done in the previous two years, checked the box indicating
that the balances were not correct. He also wrote that he
did not understand or agree with the numbers on the
form; he then signed it and sent it in the enclosed envelope,
as instructed. Sometime after doing so, he received a
phone call on September 28, 2000, from Gibbons. Siegel
testified that following his phone conversation with
Gibbons, he received another copy of the same letter, again
dated August 25, 2000. That is the version we have in the
record; on it, Siegel wrote that the balances were correct,
“Per phone call with Buzz 9/28/00 and its clarifications.”
8 No. 07-2581
Nevertheless, when asked during cross-examination
about his response on the August 25 letter, Siegel stated
that it was “not [his] intent” to indicate that the balances
were correct:
Q. You testified that you, in fact, believed that this
checkmark here was false, that indeed you believed
that the balances were not correct; is that your testi-
mony?
A. Yes, sir.
Q. All right. So you told the auditor something that
you believed was false?
A. I believe that with the note here, that clarified
what I was trying to say.
Q. Well, does anything in the note say that the
balances are not correct?
A. In my mind, yes.
Q. And how was the auditor going to know that was
what was in your mind, Mr. Siegel?
A. I presume if they had a question about it, they
could have called me.
Q. But when you sent this—and to whom did you
send this document?
A. To Ty-Walk.
Q. All right. But you realized, did you not, that it
would go to the auditors, ultimately?
A. It came to me from Ty-Walk. It was going back to
Ty-Walk.
No. 07-2581 9
Q. But you understood it was for use by the auditors;
did you not?
A. No.
Q. You didn’t?
A. It was a request from Ty-Walk to Ty-Walk.
Q. Well, in the document, Ty-Walk requests that you
confirm to the auditors that the balances are correct;
isn’t that what it says?
A. Yes, sir.
When asked on redirect why he sent the form to Ty-Walk
rather than to the auditors, Siegel replied that he did so
“[b]ecause it came to me with a self-addressed stamped
envelope with Ty-Walk Liquid Sales as both the return
address and the mailing address.” Siegel was then dis-
missed; no one asked him about the “clarifications” that he
received from Gibbons over the phone. Gibbons did not
testify at the trial, and so the court did not hear his view
of the phone conversation—nor, for that matter, did it
hear Gibbons’s perspective on the scope of his oral con-
tract with Siegel. Though Siegel petitioned to compel
Gibbons’s testimony, the district court denied that re-
quest. It is notable that it was Siegel, and not Wells Fargo,
who actively sought Gibbons’s testimony, in light of the
fact that Gibbons was the only person who could poten-
tially have refuted or undermined Siegel’s version of the
dealings between Siegel and Ty-Walk.
The court also heard from several other witnesses. Wells
Fargo presented the testimony of two former Ty-Walk
10 No. 07-2581
employees, Cindy McDonald and Barbara St. Germaine.
McDonald worked for Ty-Walk as a customer contact
representative and general “go-between” who relayed
messages from customers to Gibbons. She stated that
Gibbons handled all of the trading decisions, and that
while it was her general understanding that the marketing
program involved the trading of futures, she could not
confirm whether Siegel’s account involved futures trans-
actions or if Siegel was aware that trading in futures was
occurring. She testified that she had never spoken person-
ally with Siegel, that she was not a contact for Siegel’s
account, and that she did not know whether Siegel had
authorized certain trades on his account. She was also
unable to say whether certain documents entered into
evidence were true and accurate. She did, however, testify
that it was her understanding that the documents sent
to Siegel—which Wells Fargo calls “contracts” and
Siegel labels as mere trade records—were “confirmations
of trade” that were “generated after the transaction
occurr[ed].”
Like McDonald, St. Germaine testified that she was
never contacted personally by Siegel, that she was never
assigned to Siegel’s account, and that she did not have any
personal knowledge about his account. The district court
found that while these witnesses “appeared credible, . . .
their testimony was of limited relevance due to their lack
of personal knowledge on key issues[,] and their testimony
was merely tied to general assertions in regards to Ty-
Walk’s business practices and the documentary evidence
presented by Wells.” The court emphasized that these
witnesses said “that they did not have any personal
No. 07-2581 11
knowledge relating to certain business practices at Ty-
Walk, which were controlled by Gibbons.”
To supplement his own testimony, Siegel called an
expert witness, Philip Malefyt. The court found that
Malefyt was qualified to testify and offer expert opinions
“concerning certain issues before this court, including
guaranteed minimum price contracts, hedge to arrive
contracts, purchase to arrive contracts, and premium bid
contracts.” Malefyt testified that in his opinion, Ty-Walk’s
trading strategy was designed to generate commission
income for itself, and that its accounting methods with
respect to the marketing program were not customary.
His opinion was that the marketing program was in
reality a Ponzi scheme. Ty-Walk’s documents sometimes
reflected money coming in, but they failed to recognize
liabilities and rolled over losses so that they would not
show up on the books. Malefyt also pointed to places in Ty-
Walk’s accounting records where amounts that should
have been entered as net losses were instead noted as net
gains. The district court found that “Malefyt credibly
testified and supported his conclusions that Ty-Walk did
not follow reliable accounting practices and that its
records were not accurate or reliable.” It also pointed out
that “to the extent that Malefyt has offered certain legal
conclusions or testimony relating to topics that he did
not have expertise in, we have disregarded such testi-
mony.”
Siegel attempted to introduce evidence of a lawsuit that
Wells Fargo filed against Clifton Gunderson, LLC, the
certified public accounting firm that Ty-Walk hired to
12 No. 07-2581
conduct its audits. In that suit, Wells Fargo accused Clifton
Gunderson of professional negligence, negligent and
intentional misrepresentation, and breach of contract
relating to the accounting firm’s work on Ty-Walk’s
financial statements. The complaint alleged that Ty-Walk’s
grain inventory balance was grossly overstated and that
its financial condition based on that inventory was over-
stated and inaccurate. Siegel wanted the complaint ad-
mitted as the statement of a party-opponent, but the
district court granted Wells Fargo’s motion in limine to
exclude it. In granting that motion, the court also ex-
cluded evidence that explained, at least in part, why
Gibbons was unavailable to testify: he was incarcerated as
a result of his conviction for crimes relating to the opera-
tion of Ty-Walk.
The district court issued its memorandum opinion on
June 8, 2007. It found that Siegel and Ty-Walk entered into
a verbal contract in 1995 that established the terms of
Siegel’s participation in the marketing program. The court
also found, as Siegel had argued, that no written con-
tract memorialized Siegel’s participation in the program
or the obligations associated with it, and that Siegel “did
not anticipate doing any futures trading,” nor did he ever
“enter[] into an oral agreement authorizing Ty-Walk to
perform futures trading on his behalf.” The bottom line
was that “Siegel never agreed, verbally or in writing, to
allow Ty-Walk to trade futures on his behalf.” It also
concluded that Siegel had offset Ty-Walk’s payment on
the CCC loan by delivering grain as collateral, and so it
ruled against Wells Fargo on that claim as well.
No. 07-2581 13
II
A
On appeal, Wells Fargo has tried to reargue the facts,
recognizing that it must show that the district court
committed clear error. See F ED. R. C IV. P. 52(a)(6). As we
have often commented, this is a heavy burden, given the
deference we owe to the district court’s credibility
findings and assessment of the relative weight of the
evidence.
We first address the claim pertaining to Siegel’s
marketing-program account. The district court concluded
that “Wells Fargo has not shown by a preponderance of
the evidence that there was a written or oral agreement
formed between Siegel and Ty-Walk that authorized Ty-
Walk to trade futures or options on Siegel’s behalf.” The
court noted that the bank’s witnesses at trial “lacked
personal knowledge of the relevant facts in this case,” and
it rejected Wells Fargo’s contention that its documentary
evidence proved that Siegel’s initial verbal agreement
with Gibbons included an authorization for futures
trading. Rather, the court found that “Siegel testified
credibly” that he had signed and returned the documents
only “because that was what he was instructed to do by
Ty-Walk, not because he intended to memorialize a pre-
existing contract.” The court found support for this con-
clusion in Siegel’s testimony, corroborated by the docu-
ments, that he wrote questions on many of the trade
records that he signed, indicating that he did not under-
stand certain entries, or that he believed them to be
inaccurate. No one at Ty-Walk responded to his questions
14 No. 07-2581
or concerns, the court found, and so Siegel could not be
faulted for the lack of clarification. This was particularly
true, the court continued, given additional evidence, such
as Malefyt’s expert testimony, the statements of the
former Ty-Walk employees, and Ty-Walk’s accounting
records, showing that Ty-Walk used informal and
irregular accounting methods, and that Gibbons “engaged
in business with his clients’ grains based upon a hand-
shake, phone call, or other informal communication
rather than putting agreements in writing, which made
it more difficult for Wells [Fargo] to prove its case.” In
short, the court found that Wells Fargo’s evidence was
“incomplete and inconsistent,” and it concluded that the
bank’s “pile of documents falls far short of establishing
liability on the part of Siegel.”
While this was not an open-and-shut case for Siegel, we
conclude that there was no clear error in the district court’s
finding that Siegel never authorized Ty-Walk to engage
in futures trading on his behalf. The district court
expressly credited Siegel’s testimony that he neither
anticipated that type of arrangement nor did he under-
stand that Ty-Walk was trading in futures for his account.
“Special deference is given to determinations based on
credibility findings, which ‘can virtually never be clear
error.’” Piggie v. Cotton, 342 F.3d 660, 663 (7th Cir. 2003)
(quoting Anderson v. Bessemer City, N.C., 470 U.S. 564, 575
(1985)). Wells Fargo argues that Siegel’s testimony is
implausible, because a man who has been a farmer for so
many years and has taken classes in grain marketing at
junior college must be a “knowledgeable and attentive
trader” with sufficient sophistication to understand that
No. 07-2581 15
the documents he has signed indicate ongoing trading in
futures. But Siegel’s testimony is not incredible as a
matter of law, particularly in light of the questions and
quibbles with which he adorned the trade confirmation
forms.
Wells Fargo stresses the fact that Siegel did sign and
return these documents to Ty-Walk. A party may not
disclaim knowledge of a contract that he has signed by
later asserting that he did not read it or understand it. See
Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1417 (7th
Cir. 1987) (“One who signs a contract in the absence of
fraud or deceit cannot avoid it on the grounds that he did
not read it or that he took someone else’s word as to
what it contained.”). Following that logic, Wells Fargo
argues that Siegel cannot escape the obligations
evidenced by the trade-confirmation forms simply by
jotting down question marks on them before applying
his signature. While that may be true in principle, it
presupposes the answer to a central question: were the
trade-confirmation forms independent contracts, or were
they only documents confirming that a transaction took
place in the past? Siegel has argued throughout this
litigation that the documents are not “contracts” in the
sense of an agreement that binds the parties to future
obligations; rather, he asserts, they are merely “trade
records” that confirm the occurrence of an earlier trans-
action. The bank’s own witnesses, former employees of Ty-
Walk, echoed Siegel’s characterization of these docu-
ments, and the district court found that they were merely
trade records. That finding was not clearly erroneous.
16 No. 07-2581
This would be a different case if Wells Fargo had argued,
and proven, that each individual document was a
separate contract, and that each contract established a
certain sum that Siegel agreed to pay when he signed that
particular document. But the bank did not advance that
argument in the district court, nor did it spell out such a
position in its briefs on appeal. Rather, Wells Fargo at all
times has contended only that the documents, as a group,
demonstrate that the bank is correct in arguing that the
initial agreement between Siegel and Ty-Walk authorized
futures trading. In other words, Wells Fargo has offered
the documents for the sole purpose of establishing the
scope of the original verbal agreement that Siegel executed
with Gibbons. Because the series of later documents
reflects futures trading, its argument goes, it necessarily
follows that Siegel authorized and was aware of Ty-Walk’s
trading of futures on his behalf. But on these facts, we
do not think that the trade records conclusively establish
the scope of Siegel’s arrangement with Gibbons, especially
when the district court credited Siegel’s testimony to
the contrary and when the documents make no reference
to the oral agreement.
Had Wells Fargo advanced the position that each docu-
ment was a separate contract that bound Siegel to the
amount reflected as owing for that particular transaction,
we might have considered remanding the case to the
district court to determine which documents, if any,
satisfied the requirements of a binding contract. The end
result may (or may not) have been that Wells Fargo could
have collected at least part of what it thinks Siegel owes.
But the bank has now waived that argument. We can be
No. 07-2581 17
certain of this because, after we detected a few ambiguous
statements in the briefs that might have been read as
articulating an “individual contract” theory, counsel for
Wells Fargo expressly disclaimed such an approach when
the panel asked about it directly at oral argument.
Looking at the trade confirmations solely to see if
they provide evidence that the original oral agreement
included Siegel’s authorization for futures trading, we
cannot find that the district court clearly erred in conclud-
ing that they do not. Even Wells Fargo admits that the
relation between Siegel and the company was informal,
and there simply is no evidence before us that conclusively
contradicts Siegel’s testimony, credited by the district
court, that he never authorized Ty-Walk to trade in
futures on his behalf. As the plaintiff in this action, Wells
Fargo bears the burden of proving that the agreement
was as broad in scope as it believes, and that as a result
Siegel had a balance due on his marketing-program
account. It has failed to meet that burden.
B
We turn now to the CCC loan. Everyone agrees that Ty-
Walk paid off the loan when it sent a check to CCC in the
amount of $50,785.16; the question is whether Siegel ever
reimbursed Ty-Walk for that payment. If so, then Siegel
has no debt on that account to Ty-Walk, and there is
nothing for Wells Fargo to reach; if not, then Wells
Fargo would be entitled to have Siegel pay it instead. Wells
Fargo argues that Siegel never repaid the money to Ty-
Walk, while Siegel counters that he repaid Ty-Walk not in
18 No. 07-2581
money, but in grain. Siegel testified at trial that he depos-
ited corn as collateral to cover the loan paid by Ty-Walk to
CCC, and that he did not need to pay money to Ty-Walk
because the value of the corn he deposited exceeded
the amount of Ty-Walk’s payment on his behalf.
Once again, the district court credited Siegel’s testimony
and concluded that: (1) Ty-Walk had repaid Siegel’s loan
by writing a check to CCC; (2) once CCC received the
check, it extinguished the loan, and the corn Siegel had
delivered to Ty-Walk as collateral was “free and clear”;
(3) Siegel never sold the corn warehoused at Ty-Walk for
the CCC loan, nor did Ty-Walk ever return that grain to
Siegel; (4) Ty-Walk still possessed the collateral corn
when it closed its doors on August 23, 2001, and to this
day it has not been returned to Siegel; and (5) the value
of the corn that Ty-Walk held as collateral exceeded the
value of the payment the company made to extinguish
Siegel’s loan. Based on those facts, the district court
concluded that “there was no breach of contract by Siegel
and that Siegel does not owe any funds to Ty-Walk in
regards to the 2000 CCC Loan.”
Wells Fargo faults the district court for ruling in favor of
Siegel on this issue “solely on the basis of Paul Siegel’s
‘say-so.’” It forgets, however, that it was Wells Fargo’s
burden to come forward with proof that Siegel had
failed to repay Ty-Walk. Wells Fargo’s only reason for
criticizing the district court’s finding is that there was “no
warehouse receipt” and “no paperwork of any kind” to
back up Siegel’s story. Nothing in the record contradicts
Siegel’s account, however, and the district court was
No. 07-2581 19
entitled to credit his testimony even without supporting
documentation. See United States v. Bailey, 510 F.3d 726,
733 (7th Cir. 2007). Siegel’s testimony was neither prepos-
terous nor in defiance of the laws of nature, and the court
did not clearly err in crediting it. The bank cannot now
argue for reversal based on a lack of evidence, when it
was its own burden to supply the proof of its claim.
* * *
The judgment of the district court is A FFIRMED.
9-2-08