David Tourgeman v. Nelson & Kennard

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID TOURGEMAN, No. 16-56190
Plaintiff-Appellant,
D.C. No.
v. 3:08-cv-01392-
CAB-NLS
NELSON & KENNARD, a partnership,
Defendant-Appellee,
OPINION
and
COLLINS FINANCIAL SERVICES, INC.,
DBA Precision Recovery Analytics,
Inc., a Texas corporation; COLLINS
FINANCIAL SERVICES USA, INC.;
PARAGON WAY, INC.; DELL
FINANCIAL SERVICES, LP,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted June 7, 2018
Pasadena, California
Filed August 20, 2018
2 TOURGEMAN V. NELSON & KENNARD
Before: Richard C. Tallman and Jacqueline H. Nguyen,
Circuit Judges, and Mark W. Bennett, * District Judge.
Opinion by Judge Tallman
SUMMARY **
Fair Debt Collection Practices Act
The panel affirmed the district court’s dismissal of a
consumer class action under the Fair Debt Collection
Practices Act.
The FDCPA provides for class statutory damages “not to
exceed the lesser of $500,000 or 1 per centum of the net
worth of the debt collector.” The panel held that the plaintiff
bears the burden of introducing evidence at trial to establish
the debt collector’s net worth because such evidence is
essential to an award of class statutory damages.
The panel addressed other issues in a concurrently-filed
memorandum disposition.
*
The Honorable Mark W. Bennett, United States District Judge for
the Northern District of Iowa, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TOURGEMAN V. NELSON & KENNARD 3
COUNSEL
Brett M. Weaver (argued), San Diego, California; Daniel P.
Murphy, San Diego, California; for Plaintiff-Appellant.
Tomio Buck Narita (argued) and Jeffrey A. Topor,
Simmonds & Narita LLP, San Francisco, California, for
Defendant-Appellee.
OPINION
TALLMAN, Circuit Judge:
David Tourgeman appeals the dismissal of his consumer
class action under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq. The FDCPA provides
for class statutory damages “not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt
collector[.]” § 1692k(a)(2)(B). The statute is silent as to
which party bears the burden of introducing evidence at trial
to establish the debt collector’s net worth. Tourgeman
appeals the district court’s conclusion that he bore this
burden. Because the FDCPA makes evidence of the
defendant’s net worth essential to an award of class statutory
damages, we agree with the district court and affirm. 1
1
This opinion addresses only Tourgeman’s claim that the district
court misallocated the burden of proof. We resolve the remaining claims
in a memorandum disposition filed concurrently with this opinion.
4 TOURGEMAN V. NELSON & KENNARD
I
Tourgeman financed the purchase of a Dell computer
through a loan agreement. 2 Dell Financial Services arranged
for and serviced the loan, which originated with CIT Online
Bank. After Tourgeman’s account allegedly became
delinquent, Dell Financial Services charged off and sold the
purported debt to Collins Financial Services. Paragon Way,
Inc., Collins’s affiliated debt-collection company, sent
several letters encouraging Tourgeman to pay the alleged
debt. Collins then referred Tourgeman’s file to the law firm
of Nelson & Kennard, which sent Tourgeman another
collection letter. All of these letters identified the original
creditor as American Investment Bank, rather than CIT
Online Bank. When Tourgeman did not respond to Nelson
& Kennard’s letter, the law firm filed a collection complaint
against Tourgeman in state court. The state court complaint,
like the collection letters, misidentified Tourgeman’s
original creditor as American Investment Bank. Tourgeman
responded to the complaint by retaining counsel. Nelson &
Kennard ultimately dismissed the lawsuit.
Tourgeman brought suit against Nelson & Kennard and
other entities allegedly involved in collecting his disputed
debt. 3 He claimed that the letters and complaint violated the
2
We recount only the facts relevant to the issue before us. The
factual background of Tourgeman’s case is discussed in more detail in
our previous opinion. See Tourgeman v. Collins Fin. Servs., Inc., 755
F.3d 1109, 1112–14 (9th Cir. 2014).
3
Collins Financial Services, Inc., Collins Financial Services USA,
Inc., and Paragon Way, Inc. defaulted before the district court and did
not file briefs or offer argument in this appeal. Tourgeman settled with
Dell Financial Services. This opinion therefore refers only to Defendant
Nelson & Kennard.
TOURGEMAN V. NELSON & KENNARD 5
FDCPA by using “false, deceptive, or misleading
representation[s] or means in connection with the collection
of any debt.” 15 U.S.C. § 1692e. The court later certified a
class of consumer plaintiffs.
The district court dismissed Tourgeman’s lawsuit on
summary judgment, but we reversed and remanded.
Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1125
(9th Cir. 2014). We held that the misidentifications were
material under the FDCPA as a matter of law, subjecting
Nelson & Kennard to strict liability. Id. at 1118, 1123–24.
On remand, the district court dismissed Tourgeman’s letter-
based claims on standing grounds, allowing only his
complaint-based claim to proceed to trial. The focus at trial
was to be evidence supporting the class award of statutory
damages and Nelson & Kennard’s bona fide error defense. 4
In response to the parties’ pretrial motions in limine to
exclude evidence and argument regarding net worth, the
district court instructed the parties to address a related issue:
which party would carry the burden at trial of introducing
evidence regarding Defendant’s net worth. The district court
ultimately held that Tourgeman carried this burden. Because
Tourgeman lacked competent evidence of Nelson &
Kennard’s net worth, the district court dismissed his
complaint-based class claim. Tourgeman moved to dismiss
his remaining individual claim with prejudice. The district
court granted the motion, and Tourgeman timely appealed.
4
The district court had denied Nelson & Kennard’s motion for
summary judgment, rejecting Defendant’s argument that the class could
not recover statutory damages as a matter of law.
6 TOURGEMAN V. NELSON & KENNARD
II
We have jurisdiction under 28 U.S.C. § 1291. Whether
the district court properly allocated the burden of proof is a
conclusion of law reviewed de novo. Molski v. Foley Estates
Vineyard & Winery, LLC, 531 F.3d 1043, 1046 (9th Cir.
2008). We review the district court’s interpretation of the
FDCPA de novo. Evon v. Law Offices of Sidney Mickell,
688 F.3d 1015, 1024 (9th Cir. 2012).
III
Tourgeman argues the district court misallocated the
burden of proof as to Nelson & Kennard’s net worth. We
disagree. In light of the statutory text and structure, we
conclude that Congress intended the plaintiff to carry the
burden at trial of introducing evidence of the defendant’s net
worth. 5
A
Section 1692k of the FDCPA imposes civil liability
against “any debt collector who fails to comply with any
provision of this subchapter with respect to any person[.]”
§ 1692k(a). Class members are entitled to “additional,” or
statutory damages. 6 § 1692k(a)(2). The statute provides a
5
The term “burden of proof” historically included both the “burden
of production” and the “burden of persuasion.” Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 56 (2005). This appeal concerns the burden of
production—Tourgeman’s initial obligation to come forward with
evidence of Nelson & Kennard’s net worth. See id. When we discuss
the “burden of proof” in this opinion, we are referring to the burden of
production at trial.
6
Section 1692k also provides for actual damages, as well as
statutory damages for the plaintiff in an individual action or named
TOURGEMAN V. NELSON & KENNARD 7
two-step determination for awarding statutory damages to
class members, excluding named plaintiffs. See § 1692k(a)–
(b). First, the factfinder determines the damages ceiling: a
class may recover statutory damages “not to exceed the
lesser of $500,000 or 1 per centum of the net worth of the
debt collector[.]” § 1692k(a)(2)(B). Within that range, the
exact amount of damages is determined based on various
non-exhaustive factors, including:
the frequency and persistence of
noncompliance by the debt collector, the
nature of such noncompliance, the resources
of the debt collector, the number of persons
adversely affected, and the extent to which
the debt collector’s noncompliance was
intentional.
§ 1692k(b)(2). The damages provision is silent as to which
party carries the burden of producing evidence at trial of the
defendant’s net worth. See § 1692k. 7
The parties agree that one percent of Nelson &
Kennard’s net worth is less than $500,000. Accordingly, the
limit on statutory damages available to the class must be one
percent of Nelson & Kennard’s net worth. Tourgeman
plaintiff in a class action. See § 1692k(a)(1), (2)(A)–(B). Tourgeman
does not seek actual damages for himself or the class, and he dismissed
his individual complaint-based claim with prejudice.
7
Although § 1692k refers to “the court,” it “has been frequently
determined that the word ‘court,’ used in the [FDCPA] and in the
remedial portions of numerous other statutes, encompasses trial by both
judge and jury rather than by judge alone.” Kobs v. Arrow Serv. Bureau,
Inc., 134 F.3d 893, 896–97 (7th Cir. 1998) (quoting Sibley v. Fulton
DeKalb Collection Serv., 677 F.2d 830, 832 (11th Cir. 1982)).
8 TOURGEMAN V. NELSON & KENNARD
conceded below that he could not produce any competent
evidence of this amount at trial. He asserts, however, that
Nelson & Kennard should have carried the burden of
introducing evidence of its own net worth.
B
It is “one of the most basic propositions of law . . . that
the plaintiff bears the burden of proving his case, including
the amount of damages.” Faria v. M/V Louise, 945 F.2d
1142, 1143 (9th Cir. 1991) (citation omitted); see also
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005)
(“Perhaps the broadest and most accepted idea is that the
person who seeks court action should justify the request,
which means that the plaintiffs bear the burdens on the
elements in their claims.” (quoting C. Mueller & L.
Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003))). This is
because the party who “seeks to change the present state of
affairs . . . naturally should be expected to bear the risk of
failure of proof or persuasion.” Schaffer, 546 U.S. at 56
(quoting 2 J. Strong, McCormick on Evidence § 337, p. 412
(5th ed. 1999)).
This fundamental rule is not without exceptions. For
example, “certain elements of a plaintiff’s claim may be
shifted to defendants, when such elements can fairly be
characterized as affirmative defenses or exemptions.” Id. at
57 (citation omitted); see also FTC v. Morton Salt Co.,
334 U.S. 37, 44–45 (1948) (“[T]he burden of proving
justification or exemption under a special exception to the
prohibitions of a statute generally rests on one who claims
its benefits[.]”). But where the plain text of the statute is
silent as to which party carries the burden of proof, as is the
case here, we “begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims.”
Schaffer, 546 U.S. at 56 (citations omitted). “Absent some
TOURGEMAN V. NELSON & KENNARD 9
reason to believe that Congress intended otherwise,
therefore, we will conclude that the burden of [proof] lies
where it usually falls, upon the party seeking relief.” Id. at
57–58.
1
When allocating the burden of proof, “the touchstone of
our inquiry is, of course, the statute.” Id. at 56. We first
consider the text of the FDCPA. See Bros. v. First Leasing,
724 F.2d 789, 792 (9th Cir. 1984) (“In construing a statute
in a case of first impression, [we] look to the traditional
signposts for statutory interpretation: first, the language of
the statute itself[.]” (citation and internal quotations
omitted)); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–
76 (2009) (“Statutory construction must begin with the
language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the
legislative purpose.” (citation and internal quotations
omitted)).
Section 1692k limits statutory damages for the class to
“the lesser of” $500,000 or one percent of the defendant’s
net worth. § 1692k(a)(2)(B) (emphasis added). Congress’s
use of “the lesser of” is key because it requires the factfinder
to determine the defendant’s net worth in calculating
statutory damages. In other words, Congress made evidence
of the defendant’s net worth a prerequisite to establishing
statutory damages. Sanders v. Jackson, 209 F.3d 998, 999
(7th Cir. 2000) (“The FDCPA makes class action damages
dependent upon the ‘net worth’ of the defendant.”).
If Congress had intended to depart from the default rule
and make net worth an affirmative defense or exemption,
Schaffer, 546 U.S. at 57, it could have limited liability to
$500,000 unless the defendant could establish that one
10 TOURGEMAN V. NELSON & KENNARD
percent of its net worth is less than that amount. See
Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355,
362 (3d Cir. 2015) (reasoning that use of “unless” in another
section of the FDCPA, 15 U.S.C. § 1692b(3), was “telltale
language . . . indicative of an affirmative defense” (citing
United States v. Franchi-Forlando, 838 F.2d 585, 591 (1st
Cir. 1988) (Breyer, J.))). It did not do so.
Instead, Congress made evidence of the defendant’s net
worth essential to establishing the statutory damages cap.
This case is therefore distinguishable from Kemezy v. Peters,
79 F.3d 33 (7th Cir. 1996), a case on which Tourgeman relies
heavily. There, the Seventh Circuit placed the burden on the
defendant to introduce evidence of its own wealth, but
emphasized that such evidence is unnecessary to determine
a punitive damages award under 42 U.S.C. § 1983. Id. at
34–36 (“The question is whether [plaintiffs seeking punitive
damages] must present [evidence of the defendant’s wealth.]
. . . The answer, obviously, is no.”); see also Provost v. City
of Newburgh, 262 F.3d 146, 163 (2d Cir. 2001) (“The duty
then is on the defendant to present evidence . . . of his limited
resources if he wishes that factor to be weighed in the
calculation of punitive damages.” (emphasis added)
(citations omitted)); cf. Tri-Tron Int’l v. Velto, 525 F.2d 432,
438 (9th Cir. 1975) (declining to interfere with a punitive
damages award where the defendants proffered no evidence
of their financial ability to pay); El Ranco, Inc. v. First Nat’l
Bank of Nev., 406 F.2d 1205, 1218–19 (9th Cir. 1968)
(same). Under the FDCPA, by contrast, evidence of the
defendant’s net worth is not optional; the plain language of
the statute requires it if plaintiffs are to recover anything on
their claims. Because evidence of net worth is crucial to
establish the class’s entitlement to statutory damages, the
burden of production at trial is properly placed on the
plaintiff.
TOURGEMAN V. NELSON & KENNARD 11
2
The structure of § 1692k further supports our conclusion
that Congress did not intend to shift the burden of production
to the debt collector.
a
The FDCPA provides a dual-step formula for calculating
class statutory damages. The factfinder first determines the
defendant’s maximum liability. § 1692k(a)(2)(B). It next
“determin[es] the amount of liability in any action under
subsection (a)” based on a non-exhaustive list of factors.
§ 1692k(b) (emphasis added). The factfinder thus
determines the appropriate award of statutory damages
within the permissible range first established under
subsection (a).
Tourgeman urges us to adopt a different interpretation.
He contends that the factfinder can simply skip the cap
analysis in subsection (a) and proceed directly to the list of
factors in subsection (b), on which he concedes he carries the
burden of proof. Under Tourgeman’s theory, the factfinder
may award any amount, which the debt collector can
subsequently attempt to limit based on evidence of its net
worth. Beyond ignoring the plain language of
§ 1692k(a)(2)(B), discussed above, Tourgeman would have
us simply overlook the analysis Congress enacted for
calculating entitlement to damages. This we decline to do.
See Gonzales v. Oregon, 546 U.S. 243, 273 (2006)
(“[S]tatutes should not be read as a series of unrelated and
isolated provisions.” (citation and internal quotations
omitted)); In re Cardelucci, 285 F.3d 1231, 1234 (9th Cir.
2002) (“This Court assume[s] that Congress carefully
select[s] and intentionally adopt[s] the language used in a
statute.” (alterations in original) (citation and internal
12 TOURGEMAN V. NELSON & KENNARD
quotations omitted)). Before the factfinder can apply the list
of factors, plaintiffs must first produce evidence from which
the factfinder can determine the limit on statutory damages.
This preliminary showing of net worth distinguishes the
FDCPA from the statutory scheme in Hernandez-Miranda v.
Empresas Diaz Masso, Inc., 651 F.3d 167 (1st Cir. 2011).
There, the First Circuit held that the defendant in a Title VII
employment discrimination action carried the burden of
proving caps on damages. Id. at 175–76. But, unlike the
damages cap under the FDCPA, the caps under Title VII
“come into to play only after there has been a verdict award,”
and “the defendant employer must affirmatively move to
impose the cap and to present relevant evidence.” Id. at 173,
176 (emphasis added) (citing Schaffer, 546 U.S. at 57).
Moreover, Title VII explicitly “forbids the court from
informing the jury of the limitations on recovery,” which
“are for the court, not the jury, to apply.” Id. at 173 (citations
omitted). This “ensure[s] that no pressure . . . will be exerted
on the amount of jury awards by the existence of the
statutory limitations.” Id. (citation and internal quotations
omitted). In contrast, the FDCPA’s damages cap comes into
play first when the plaintiff is seeking statutory damages,
and is determined by the factfinder as part of plaintiff’s case
in chief. Hernandez-Miranda is inapposite.
b
The two exceptions to liability that are delineated in
§ 1692k provide additional support for applying the default
rule. See Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich LPA, 559 U.S. 573, 587–88 (2010) (“In reading a
statute we must not look merely to a particular clause, but
consider in connection with it the whole statute” (citation
and internal quotations omitted)). The Supreme Court has
observed that the FDCPA “contains two exceptions to
TOURGEMAN V. NELSON & KENNARD 13
provisions imposing liability on debt collectors.” Id. at 578.
Neither involves evidence of net worth.
The first exception is the bona fide error defense:
[a] debt collector may not be held liable . . . if
[it] shows by a preponderance of the
evidence that the violation was not
intentional and resulted from a bona fide
error notwithstanding the maintenance of
procedures reasonably adapted to avoid any
such error.
§ 1692k(c) (emphasis added); see Owen v. I.C. Sys., Inc.,
629 F.3d 1263, 1271 (11th Cir. 2011) (“This bona fide error
defense in § 1692k(c) is an affirmative defense, for which
the debt collector has the burden of proof.”); H. Rep. 94-
1202, 94 Cong., 2d Sess. 11 (1976) (“Subsection (c) . . .
provides an exemption from liability[.]”). Section 1692k(c)
“explicitly places the burden on the debt collector to prove
that it acted unintentionally and had procedures in place to
avoid such an error.” Evankavitch, 793 F.3d at 363 (citation
omitted). The second exception provides a safe harbor from
liability where the defendant can show it complied with an
advisory opinion by the Consumer Financial Protection
Bureau. § 1692k(e) (“No provision of this section imposing
any liability shall apply to any act done or omitted in good
faith in conformity with any advisory opinion of the
Bureau[.]”).
The Third Circuit has explained that §§ 1692k(c) and
1692k(e) are “delineated as affirmative defenses by
§ 1692k(a)’s general statement that a debt collector shall be
held liable ‘except as otherwise provided by this section,’
with the particular affirmative defenses described in separate
subsections.” Evankavitch, 793 F.3d at 363 (quoting
14 TOURGEMAN V. NELSON & KENNARD
§ 1692k(a)). Placing “the exception and the general
prohibition in different parts of the statute,” our sister circuit
explained, “has been recognized by the Supreme Court as
indicative of an affirmative defense.” Id. (citing Meacham
v. Knolls Atomic Power Lab., 554 U.S. 84, 87, 91 (2008)).
Sections 1692k(c) and 1692k(e) inform our view that
Congress knew how to shift the burden of proof to the
defendant, but chose not to do so regarding evidence of net
worth. See Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078,
1081 (9th Cir. 2005) (“[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quoting Russello v. United States,
464 U.S. 16, 23 (1983))). We have also acknowledged the
“effort by Congress in drafting the FDCPA to be both
explicit and comprehensive, in order to limit the
opportunities for debt collectors to evade the under-lying
legislative intention.” Clark v. Capital Credit & Collection
Servs., Inc., 460 F.3d 1162, 1178 (9th Cir. 2006) (citation
and internal quotations omitted).
This is “the backdrop against which the Congress writes
laws, and we respect it unless we have compelling reasons
to think that Congress meant to put the burden of [proof] on
the other side.” Meacham, 554 U.S. at 91–92 (citing
Schaffer, 546 U.S. at 57–58). Here, we see no reason to
depart from the default rule. The statute—its text and
structure—makes evidence of net worth essential to a class
statutory damages award; it is not an affirmative defense. If
a plaintiff seeks class statutory damages, it carries the burden
of introducing such evidence at trial.
TOURGEMAN V. NELSON & KENNARD 15
3
Tourgeman argues that Nelson & Kennard must bear the
burden on this issue because it has superior access to the
relevant evidence. We disagree. No rule of statutory
construction or evidence compels that result.
The Supreme Court has acknowledged the general
principle that a litigant ordinarily does not carry the burden
of “establishing facts peculiarly within the knowledge of his
adversary.” Schaffer, 546 U.S. at 60 (citations and internal
quotations omitted); see also Dixon v. United States,
548 U.S. 1, 9 (2006). But the Court has also cautioned that
“this rule is far from . . . universal,” and “[v]ery often one
must plead and prove matters as to which his adversary has
superior access to the proof.” Schaffer, 546 U.S. at 60
(citations and internal quotations omitted). Access to
evidence, while perhaps a consideration, is far from
determinative.
We also note that it is not uniquely difficult for consumer
plaintiffs to acquire the debt collector’s financial
information. Compare Thomas v. George, Hartz, Lundeen,
Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107,
1114 (11th Cir. 2008) (declining to apply the “superior
access” rule because “proper use of discovery tools, such as
interrogatories, requests for admissions, and depositions,
will reveal which enumerations may apply,” and thus the
plaintiff will not be unfairly surprised at trial), with
Evankavitch, 793 F.3d at 365–66 (emphasizing the difficulty
of acquiring, as an FDCPA plaintiff, information about the
purpose and basis of the debt collector’s phone calls to third
parties given a lack of records).
Here, Tourgeman had every opportunity to acquire
evidence of Nelson & Kennard’s net worth. A protective
16 TOURGEMAN V. NELSON & KENNARD
order was entered to give Tourgeman access to Defendant’s
financial information, and Nelson & Kennard was ordered to
produce it. Tourgeman obtained hundreds of pages of bank
statements, copies of checks, tax returns, and deposition
testimony regarding Defendant’s financial condition.8
FDCPA plaintiffs seeking evidence of net worth “are not
peculiarly at a disadvantage in the discovery of necessary
facts[.]” Thomas, 525 F.3d at 1114.
Tourgeman also argues that placing the burden on the
plaintiff would increase litigation costs, make discovery
battles inevitable, and generally discourage class actions
under the FDCPA. But “[w]hatever merits these and other
policy arguments may have, it is not the province of this
Court to rewrite the statute to accommodate them.” Artuz v.
Bennett, 531 U.S. 4, 10 (2000) (per curiam); see also Correia
v. C.I.R., 58 F.3d 468, 469 (9th Cir. 1995) (“Although
[plaintiffs] put forth what may be a legitimate policy
rationale[,] . . . it is for Congress, not the courts, to make
such a change.” (citation omitted)). We think the statute is
clear, and our inquiry ends there.
IV
We conclude, based on the text and structure of § 1692k,
that Congress intended the “ordinary default rule” to apply.
Schaffer, 546 U.S. at 57. We hold that the plaintiff carries
the burden of producing evidence at trial of the debt
8
The district court concluded that Tourgeman lacked competent
evidence because he had no expert to interpret this financial information
for the jury—for example, whether to value distributions to the partner
as a liability. Because Tourgeman only challenges how the district court
allocated the burden of proof, we need not address what evidence a
plaintiff must produce to satisfy its initial burden of production at trial.
TOURGEMAN V. NELSON & KENNARD 17
collector’s net worth to establish entitlement to class
statutory damages under the FDCPA.
Costs are awarded to the Appellee. See Fed. R. App. P.
39(a)(2).
AFFIRMED.