Opinion
B297997
01-19-2021
DOV CHARNEY, Plaintiff and Appellant, v. STANDARD GENERAL, L.P. et al., Defendants and Respondents.
Guzik & Associates and Samuel S. Guzik for Plaintiff and Appellant. Walker Stevens Cannom, Bethany M. Stevens, Amanda Walker; Debevoise & Plimpton, Justin C. Ferrone and Shannon Rose Selden for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC586119) APPEAL from a judgment of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed. Guzik & Associates and Samuel S. Guzik for Plaintiff and Appellant. Walker Stevens Cannom, Bethany M. Stevens, Amanda Walker; Debevoise & Plimpton, Justin C. Ferrone and Shannon Rose Selden for Defendants and Respondents.
This is the second appeal in this action between plaintiff and appellant Dov Charney and defendants and respondents Standard General, L.P., Standard General Master Fund, L.P., and P Standard General Ltd. (collectively, Standard General).
Charney appeals from an adverse judgment following the trial court's grant of Standard General's motion for judgment on the pleadings, which resulted in dismissal of all nine causes of action alleged in Charney's complaint. Charney takes issue with the trial court's ruling only as to his single statutory cause of action for securities fraud under Corporations Code section 25401. Charney contends that the trial court erred in granting Standard General's motion based, among other things, on its conclusion that the claim was barred by the doctrine of res judicata. We conclude Charney's contentions lack merit and affirm.
Unless otherwise stated, statutory references are to the Corporations Code.
FACTUAL AND PROCEDURAL SUMMARY
General Background
No lengthy recitation of historical facts is required by the issues raised in this appeal. We begin by summarizing the facts and procedural history from prior opinions in California and Delaware courts addressing the parties' disputes. We will present additional details as relevant to the sole remaining claim at issue.
Those decisions are our opinion in Charney's prior appeal, Charney v. Standard General, L.P. [(8/22/17, B269631, nonpub. opn.), 2017 WL 3599522 (Charney I)], and a subsequent decision in litigation between the parties in Delaware, Standard General, L.P., et al. v. Charney (12/19/17, Court of Chancery of Delaware, C.A. No. 11287-CB, 2017 WL 6498063 (Standard General), affirmed by the Delaware Supreme Court (Charney v. Standard General, L.P. (9/24/2018, No. 65, 2018) [nonpub.], 195 A.3d 16, 2018 WL 4571589.)
Plaintiff Dov Charney is the founder and former chief executive officer (CEO) of Los Angeles based clothing company American Apparel, a Delaware corporation. Defendants Standard General are a hedge fund entity and two of its investment firms. The dispute involves a series of written agreements made between Charney and Standard General, after Charney was ousted from American Apparel.
In June 2014, American Apparel's Board of Directors (Board) decided to terminate Charney's employment. Shortly thereafter, Standard General approached Charney and purportedly offered him an opportunity to regain control over American Apparel. The parties entered numerous written agreements, including a "letter agreement," by which Standard General loaned Charney approximately $20 million to purchase additional shares of American Apparel (from Standard General, which had itself purchased the shares). The shares were to be voted pursuant to a "cooperation agreement" giving Standard General control over Charney's voting rights. Charney pledged his shares as collateral for the loan from Standard General. An additional "warrant agreement" gave Standard General the right to buy a percentage of Charney's shares from him. Charney claims he was induced to enter into these and related agreements based on Standard General's fraudulent assurances that it would assist him to regain control of American Apparel and be restored to his status as CEO and that, once Charney repaid the loan, Standard General would relinquish the cooperation and warrant agreements. (Charney I, supra, 2017 WL 3599522 at p. *1.)
Charney later entered into a three-way "standstill agreement" with Standard General and American Apparel, pursuant to which Charney and most of the members of the Board resigned, paving the way for Standard General to take control of American Apparel and appoint new directors. Charney alleges that Standard General assured him that, although its promise to reinstate Charney as CEO could not be included in the standstill agreement (due to Standard General's need to appease the Board and its own investors), Standard General remained committed to helping Charney regain control. Charney alleges this promise was false and also that, as a result of the standstill agreement, he was subjected to an unfair investigation that led to his termination for cause in December 2014. (Charney I, supra, 2017 WL 3599522 at p. *1.) Charney claims that, instead of facilitating his effort to regain control of the company, Standard General colluded with Board members to hasten his ouster.
The warrant, cooperation, and standstill agreements contain mandatory forum selection clauses, by which the parties agreed to subject themselves exclusively to the jurisdiction of the Delaware courts, and also contain choice of law provisions, selecting Delaware or New York law to govern resolution of any dispute related to them. (Charney I, supra, 2017 WL 3599522 at pp. *1-*2, and fn. 3.)
Charney Files this California Action, and Standard General Files Suit in Delaware
On June 24, 2015, Charney filed the underlying complaint, alleging one statutory and eight common law claims, including intentional misrepresentation and fraudulent inducement. Only the statutory cause of action for violation of section 25401 (fraud in the offer, sale, or purchase of securities), remains at issue. By that claim, Charney sought rescission of the warrant agreement and unspecified damages. (Charney I, supra, 2017 WL 3599522 at p. *2.)
Three weeks later, on July 13, 2015, Standard General filed suit against Charney in Delaware (the forum mandated in the agreements for resolution of disputes about or arising from those agreements), where the parties were already engaged in other litigation. (See Standard General, supra, 2017 WL 6498063 at p. *2.) Standard General sought a declaratory judgment that the agreements were valid and enforceable. Standard General also alleged that Charney had breached the agreements, thereby accelerating his loan obligations, and sought repayment of the full amount due on the loan, plus damages for impairment of its collateral.
Standard General Moves to Stay the California Action
In December 2015, Standard General filed a motion to stay this California action, relying on the Delaware forum selection clauses in the cooperation, warrant and standstill agreements. Standard General argued that "the inclusion of a token California statutory claim" was an insufficient basis to require the parties to litigate in California, given that the complaint primarily was based on disputes regarding contracts containing Delaware forum selection clauses. (Charney I, supra, 2017 WL 3599522 at p. *2.) Charney opposed the motion arguing, in part, that section 25701 voids any contractual provision purporting to waive California's Corporate Securities Law of 1968 (§ 25000 et seq.) He also claimed the Delaware forum selection clauses were unenforceable because he had been fraudulently induced to enter the agreements. (Charney I, supra, 2017 WL 3599522 at p. *3.)
Concurrently, Charney unsuccessfully moved to dismiss the Delaware action asserting that California was the appropriate jurisdiction to litigate the parties' disputes or, alternatively, to stay the Delaware action because his complaint in California was filed first. Standard General opposed that motion on the ground that, among other things, the relevant contracts provided for exclusive jurisdiction in Delaware.
It is undisputed that the stock at issue, common stock of American Apparel, and additional warrants and warrant certificates, constitutes securities. (§ 25019.)
In its December 2015 ruling, the trial court concluded that section 25701 prevented it from dismissing or staying the section 25401 cause of action because, as a purchaser of stock in California, Charney had an unwaivable right to have California securities law applied to any dispute arising out of the transaction. (Charney I, supra, 2017 WL 3599522 at p. *3.) However, the trial court agreed with Standard General's assertion that the Delaware forum selection clauses in the agreements were enforceable (as to all but the statutory cause of action) because "[e]ach of [Charney's] claims clearly 'arise[s out] of' or 'relate[s] to' the Agreements and question[s] the scope and nature of the Agreements, how the Agreements were formed, what obligations there were under the Agreements, and whether the Agreements were fraudulently entered into, which also relates to the Agreements." Exercising its inherent authority to avoid inconsistent rulings with pending litigation in Delaware, the trial court stayed the entire action (rather than solely the § 25401 claim) until "all appeals are exhausted, or if no appeal is filed, until a dismissal or final judgment is entered in any case initiated in Delaware, involving all the same issues and parties."
Relying, in part, on this ruling, the Delaware court subsequently denied Charney's motion to dismiss or stay the Delaware action.
Charney appealed, arguing that his statutory securities fraud claim could only be adjudicated in California. (Charney I, supra, 2017 WL 3599522 at pp. *3-*4.) In an opinion filed August 22, 2017, we upheld the trial court's decision to stay the entire action in deference to the Delaware litigation. We explained it was proper to enforce the Delaware forum selection clause to which all parties had agreed. This was true even as to Charney's statutory securities fraud claim, because he could not show prejudice by litigating in Delaware. Specifically, we concluded that Charney could not show "his unwaivable rights under section 25701 would be diminished by enforcing the forum selection clauses" because it was likely the Delaware court would apply California law to the claim (unless Delaware law gave Charney equal or greater rights). We also observed that, even if Delaware law was applied, Carney was unable to "point to any significant differences in the substantive rights provided under [the two states'] statutory provisions." (Id. at pp. *5-*7.)
Charney Answers the Delaware Complaint and Asserts Affirmative Defenses that Mirror his California Claims
Meanwhile, in early June 2016, Charney answered Standard General's Complaint in the Delaware action, asserting 11 affirmative defenses, including "fraudulent inducement," coercion and duress. Charney concedes that the affirmative defenses he asserted in the Delaware action contain "many of the same factual allegations [as] in the California action." Despite multiple warnings by the Delaware trial court regarding the wisdom of his decision due to the possibility of claim or issue preclusion, Charney refused to assert any counterclaims in the Delaware action. Instead, he chose to preserve the opportunity to litigate his claims for affirmative relief in California, and never departed from this litigation strategy even after our decision in Charney I was filed in August 2017.
In his affirmative defenses in the Delaware action Charney claimed Standard General made false promises before and after entering into the agreements, conduct Charney claimed relieved him of the obligation to perform. These misrepresentations included alleged promises that Standard General would assure his reinstatement as CEO, and that Charney could "tap out" Standard General (meaning, he would be relieved of his contractual obligations by paying off the loan from Standard General).
In Delaware, the hearing on Standard General's motion took place after our opinion issued in which we affirmed the trial court's stay and explained that Charney's section 25401 claim, together with all the others relating to or arising out of the parties' agreements, could be fairly and fully adjudicated in Delaware. (Charney I, supra, 2017 WL 3599522 at pp. *5-*7.) There is no indication the Delaware court was made aware of that decision. But it is clear from the context of the Delaware decision that Charney chose not to assert a counter-claim or amend his answer to include the section 25401 claim, despite warnings by the Delaware court of potentially serious consequences to his ability to litigate in California of his failure or refusal to do so. (Standard General, supra, 2017 WL 6498063 at pp. *6 (and fns. 59 & 60), *7 (fn. 70), *8, *10, *11-15.)
Standard General Successfully Moves for Judgment on the Pleadings in Delaware Action
In February 2017, Standard General filed a motion for judgment on the pleadings in the Delaware action. Standard General argued that each of Charney's affirmative defenses was defeated by the plain terms of the parties' written agreements. That motion was argued on September 19, 2017. The trial court rejected all of Charney's affirmative defenses. The order granting the motion was filed December 19, 2017.
The Delaware court found that Charney's "primary challenge to the validity and enforceability of the Agreements [was] his fraudulent inducement affirmative defense, which allege[d] that Standard General made false statements to induce him to enter into the Agreements." The court found that defense "fail[ed as a matter of law] because the oral misrepresentations [on which] Charney purport[ed] to have relied"—that Standard General would ensure he regained control of American Apparel, that he would promptly be restored as CEO and was free to buy out Standard General at any point—"directly conflict[ed] with the express written terms of the Agreements, making any purported reliance by Charney unreasonable." (Standard General, supra, 2017 WL 6498063 at pp. *11-*15, esp. *11.)
The Delaware court also found that undisputed facts established that Charney breached the agreements, which triggered an event of default permitting Standard General to accelerate the balance due, which Charney failed to pay. (Standard General, supra, 2017 WL 6498063.) The court entered judgment on the pleadings declaring that the parties' agreements were valid and enforceable when executed (i.e., not the product of fraudulent inducement), and ordered Charney to pay approximately $20 million in damages for the balance due Standard General, plus interest. (Id. at p. *26.) Charney appealed. The Delaware Supreme Court affirmed the lower court's decision for identical reasons. (See Charney v. Standard General, L.P. (Sept. 24, 2018; No. 65, 2018), supra, 2018 WL 4571589.)
The court observed that "Charney [did] not dispute that he breached the Delaware exclusive forum provisions . . . by filing the California action," a clear repudiation of the agreements. The court also noted that Charney "repeatedly has stated his intention to press his claims in that forum in contravention of the express terms of the Delaware exclusive forum provisions."
Standard General Moves for Judgment on the Pleadings in this Action
In January 2019, following the final determination by the Delaware courts, Standard General filed a Motion for Judgment on the Pleadings (MJOP) in this action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) As pertinent here, Standard General argued Charney's statutory (§ 25401) claim for securities fraud was barred by res judicata and collateral estoppel as a result of the Delaware decisions. That motion was argued before and granted by the trial court on February 25, 2019, "on the grounds set forth in [Standard General's] moving papers." Judgment was entered. Charney filed this timely appeal.
DISCUSSION
Charney argues the trial court erred and urges this Court to reverse the judgment and reinstate his securities fraud claim. For reasons explained below, we conclude Charney's statutory claim for violation of section 25401 could and should have been raised and decided in the Delaware litigation, and the pivotal issues underlying the claim were actually litigated in that action. Accordingly, Charney's cause of action is barred by the doctrine of res judicata.
I. The Standard of Review
A defendant's motion for judgment on the pleadings is the equivalent of a general demurrer and governed by the same de novo standard of review. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.) Properly pled factual allegations and matters as to which judicial notice may be taken are assumed to be true. (Ibid.; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 516; Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)
II. Standard General was Entitled to Judgment on the Pleadings
A. Charney's Section 25401 Claim is Barred by Collateral Estoppel
"Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen Corp.).) "'The doctrine has two components. "'In its primary aspect the doctrine of res judicata [or "claim preclusion"] operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.' . . . The secondary aspect is 'collateral estoppel' or 'issue preclusion,' which . . . 'precludes a party to an action from relitigating in a second proceeding matters litigated and determined in a prior proceeding.'" [Citations.]' [Citation.]" (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1563; Mycogen Corp., at p. 897; Roos v. Red (2005) 130 Cal.App.4th 870, 879 (Roos) [collateral estoppel "preclude[s] a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case"].)
"Collateral estoppel is an equitable concept based on fundamental principles of fairness." (Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 941.) "Issue preclusion prevents 'relitigation of issues argued and decided in prior proceedings.' [Citation.] The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding. [Citation.]" (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.) Collateral estoppel "preclude[s] a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case." (Roos, supra, 130 Cal.App.4th at p. 879.) The focus of a collateral estoppel inquiry is on whether the party against whom issue preclusion is sought had an adequate opportunity to litigate the factual finding or issue in the prior proceeding, not whether the party actually availed himself of that opportunity. (See Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 869; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1179 ["[i]t is the opportunity to litigate that is important . . . , not whether the litigant availed himself or herself of the opportunity"].)
Among the elements of collateral estoppel, the parties here disagree only whether the issues raised by Charney's statutory securities fraud claim under section 25401 are identical to those litigated and necessarily decided in the Delaware proceeding.
Section 25401 provides: "It is unlawful for any person to offer or sell a security in this state, or to buy or offer to buy a security in this state, by means of any written or oral communication that includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in the light of the circumstances under which the statements were made, not misleading."
Section 25501, in turn, provides: "Any person who violates Section 25401 shall be liable to the person who purchases a security from him or sells a security to him, who may sue either for rescission or for damages."
In pertinent part, Charney's complaint alleges: (1) pursuant to the letter agreement Standard General loaned Charney money to use to purchase American Apparel stock—a "security" within the meaning of section 25401—from Standard General; (2) pursuant to the warrant agreement Charney issued and sold warrants to Standard General entitling them to purchase American Apparel shares from Charney; (3) to induce Charney to purchase the shares and issue and sell the warrants, Standard General represented, among other things, that (a) Standard General would assist Charney to regain control of American Apparel and be reinstated as CEO, and (b) once Charney repaid the loans, Standard General would relinquish all consideration received from Charney, including the warrant and cooperation agreements; (4) these representations were knowingly false and material; and (5) Charney has suffered injury and is entitled to rescission or damages.
By his section 25401 claim, Charney seeks rescission and invalidation of certain agreements Standard General allegedly obtained by fraud. Standard General argues such a determination would be directly at odds with the determination by the Delaware court which found the agreements were valid, enforceable and not the product of fraud or misrepresentation, and awarded Standard General damages for Charney's breach of those agreements. Standard General's MJOP argued that the securities fraud claim Charney has alleged is "essentially 'fraudulent inducement' by another name," an issue that was actually litigated in the Delaware action and necessarily decided against him. In particular, Charney's allegation that Standard General fraudulently induced him to purchase the American Apparel stock bought with the funds loaned to Charney by Standard General on the promise that, if Charney purchased the stock pursuant to the letter agreement, Standard General would help him regain control of American Apparel and be reappointed as CEO. Charney also alleged that Standard General fraudulently induced him to enter this deal promising that Charney could cancel it at any time upon repayment of the loan in full, and that he relied on these promises and representations.
The Delaware Court examined these claims at length and rejected them. That court held that Charney's claims were expressly contradicted by the plain terms of the letter agreements, and definitively determined it was patently unreasonable for Charney to rely on the extra-contractual promises that form the basis of his section 25401 claim. The court explained the letter agreement "makes clear that Standard General had only agreed to vote the shares in limited ways," and "[t]he express language of [that agreement] undercut[] any alleged promise by Standard General to fully support Charney in returning to control" of American Apparel. (Standard General, supra, 2017 WL 6498063 at p. *13.) Accordingly, in its MJOP, Standard General argued Charney's statutory securities claim fails as a matter of law, because "the identical issue of whether a material misrepresentation fraudulently induced Charney to enter into the Letter Agreement (and associated Agreements) [had] already been actually litigated and necessarily decided in a final judgment on the merits" in the Delaware action to which Charney was a party. (Italics added.) We agree. In short, the same extra-contractual representations that Charney alleges violate section 25401 and caused him to be fraudulently induced, were asserted as affirmative defenses in the Delaware action. Two Delaware courts have assessed the claims and rejected Charney's defenses. Thus, Charney is barred from relitigating the same issues in this action.
In particular, the court focused on Charney's allegation that Standard General fraudulently induced him to purchase the American Apparel stock it bought with the funds Standard General loaned him, promising that, if he purchased the stock pursuant to the letter agreement, Standard General would help Charney regain control of American Apparel and be reappointed as CEO. The court also noted the allegation that Standard General fraudulently induced Charney into this deal by promising he could cancel it at any time upon repayment of the loan in full, promises and representations on which Charney relied.
Charney maintains the issues are not identical and have not been litigated because, unlike common law fraud, section 25401 requires neither an allegation nor proof of reliance. (See Bowden v. Robinson (1977) 67 Cal.App.3d 705, 714 (Bowden) [concluding that, in enacting § 25401, the Legislature's intent was to "conspicuously [avoid] the requirement of 'actual reliance'" and provide a remedy to a victim of securities fraud without the "formidable task of proving common law fraud"].) This argument fails for several reasons.
First, the focus of the doctrine of collateral estoppel is on whether the party against whom issue preclusion is sought had an adequate opportunity to litigate the issue in the prior proceeding, not whether he actually did so. (See Murray v. Alaska Airlines, Inc., supra, 50 Cal.4th at p. 869; Rymer v. Hagler, supra, 211 Cal.App.3d at p. 1179 ["[i]t is the opportunity to litigate that is important . . . , not whether the litigant availed himself or herself of the opportunity"].) The gist of Charney's opposition to the MJOP was that he reasonably withheld asserting any affirmative claims (including the § 25401 claim) in the Delaware action in reliance on the trial court's stay order, planning to litigate at least that claim in what he hoped would be a more favorable California forum. This strategy was risky but could arguably have been employed at the outset of the Delaware action. However, that strategy was no longer viable once we issued our decision in Charney I and concluded Charney was not prejudiced by the trial court's stay order because there was no reason the Delaware court could not apply California law to resolve the section 25401 claim and others, all of which arose from the same nucleus of operative facts. (Charney I, supra, 2017 WL 3599522 at pp. *5-*7.)
Second, although "reliance" is not a necessary element of a claim of securities fraud under section 25401, a statement or omission of "material fact" is required. To prevail on his section 25401 claim, Charney must establish that the sale or purchase of securities was accomplished through an oral or written "statement of a material fact . . . necessary to make the statements made, in light of the circumstances under which [those] statements were made, not misleading." (§ 25401, italics added.) Charney has not alleged any affirmative statement of material fact employed in the purchase or sale of the securities at issue. Instead, he alleged that Standard General promised generally to help him regain control and be reinstated as American Apparel's CEO, and to relinquish its consideration once he repaid the loans. Charney cites no authority to establish that vague extra-contractual promises constitute a misrepresentation or omission of material facts. "Section 25401 only applies to an 'untrue statement of material fact' or an omission to state a 'material fact in order to make the statements made, in light of the circumstances under which they are made, not misleading.' Section 25401 does not apply to simple nondisclosure." (Bowden, supra, 67 Cal.App.3d at p. 717.)
Further, the Delaware court's determinations preclude a finding that the alleged misrepresentations on which Charney based his claim satisfy the statutory requirement of materiality "in light of the circumstances" at the time the agreements were executed. Under California Corporations law, a "'fact is material if there is a substantial likelihood that, under all the circumstances, a reasonable investor would consider it important in reaching an investment decision.'" (See Insurance Underwriters Clearing House, Inc. v. Natomas Co. (1986) 184 Cal.App.3d 1520, 1526.) The Delaware court waded through each extra-contractual promise Standard General allegedly made and found that all were expressly contradicted by the written agreements which Charney, a seasoned business executive, negotiated and executed with the benefit and advice of counsel. At a minimum, the disparity between his understanding and the express terms of the agreements gave rise to an obligation to seek clarification or modification of the written agreements to include the benefits he claims he was promised. Given the contradictory chasm between the express terms of the agreements and the promises Charney claims Standard General made, it is not reasonable to conclude Charney considered those promises material and "important in reaching [his] investment decision."
Third, Charney is precluded from recovery on his statutory claim because the Delaware courts found he was made aware of the untruth of Standard General's extra-contractual promises or representations when he executed written agreements the clear terms of which directly contradicted such promises or representations. Section 25501 provides that, "[a]ny person who violates Section 25401 shall be liable to the person who purchases a security from him . . . unless the defendant proves that the plaintiff knew the facts concerning the untruth or omission." (Italics added.) Even if proof of "reliance" is unnecessary to state a claim for violation of section 25401, section 25501 nevertheless precludes redress for the claim because the Delaware courts definitively determined Charney knew the true facts of the parties' arrangements as stated in their written agreements he negotiated and executed with Standard General. The trial court was correct to conclude that Charney's section 25401 claim is barred by collateral estoppel. As such, it fails as a matter of law.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.