Opinion
D058065
10-27-2011
MARICARMEN ESTEBAN, Plaintiff and Appellant, v. WESTFIELD AMERICA, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 37-2009-00067949- CU-PO-EC
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Reversed.
Maricarmen Esteban filed a personal injury lawsuit against Westfield America, Inc. (Westfield) claiming she was injured when she slipped and fell on wet floor at a shopping mall owned by Westfield. The court granted summary judgment in Westfield's favor, finding the undisputed facts showed Westfield had no actual or constructive knowledge of the wet surface before Esteban fell. We reverse, concluding Westfield failed to meet its summary judgment burden that it was entitled to judgment as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2007, Esteban slipped and fell on a wet surface inside the Parkway Plaza mall, owned by Westfield. Two years later, in July 2009, Esteban filed a complaint, alleging Westfield was negligent in that it knew or should have known of the dangerous condition and failed to take steps to either make the condition safe or warn customers of the dangerous condition. Esteban alleged she sustained serious knee injuries resulting from the fall.
About two months later, Esteban served a set of interrogatories on Westfield. One interrogatory asked whether "YOU or anyone on YOUR behalf maintain a maintenance schedule or inspection log of the [Parkway Plaza shopping mall]." Another interrogatory asked Westfield to describe its "last inspection prior to the INCIDENT . . . including, but not limited to, the date and time, the person performing, the nature of the inspection, the identity of all persons observing such inspection, and the condition of said surface at the time of the inspection." After asserting relevancy and other objections, Westfield answered "no" to the first question and "none" to the second question, indicating that neither Westfield nor its agent conducted inspections of the premises before Esteban's fall or maintained written inspection records.
Several months after serving these responses, in April 2010, Westfield moved for summary judgment arguing Esteban "can present no evidence that [Westfield] had any notice, actual or constructive, prior to her fall, of any dangerous condition in the shopping mall . . . ." In support, Westfield relied on deposition testimony of Esteban and her friend Lucia Gray, who witnessed the incident.
At Esteban's deposition, she described the details of her fall. According to Esteban, she and Gray were inside the mall walking toward the exit at closing time, at about 7:00 p.m. or 8:00 p.m., when she slipped on wet floor and fell on her knees. Esteban described the wet floor as a large puddle of coca cola, which somebody must have dropped. When asked whether she could tell whether the puddle was "still wet," or whether "it look[ed] like other people had stepped through it also," Esteban responded: "No, I think it was fresh or something like that. That it was like — it looked like a puddle or something. I don't think — I just couldn't tell you if somebody else already had, you know, walked through it." After her fall, Esteban and Gray found security personnel and filed an incident report. Gray's deposition testimony mirrored Esteban's testimony in all relevant details, but added that there was a large plastic cup left on the floor near the puddle.
Based solely on this evidence, Westfield argued it was entitled to summary judgment as a matter of law because Esteban could not demonstrate the liquid was on the mall floor for a sufficient amount of time to establish actual or constructive knowledge.
Before she filed her opposition, Esteban took the deposition of Michael Cavender, Parkway Plaza's general manager, designated as the person most knowledgeable on the maintenance, recordkeeping, housekeeping, and inspections of the mall on the accident date. Cavender testified that he did not know how long the liquid was on the floor before Esteban fell, but that cleaning services at the mall are provided by a third party contractor, Millard Group (Millard). In response to a notice to produce documents at the deposition, Westfield produced (for the first time) copies of Millard's "Sweep Sheets," which document the times when Millard employees clean/patrol the shopping mall, and "Spill/Wet Floor" logs, which identify spills and related clean up activity. Cavender said he had no personal knowledge of the inspections made before Esteban's fall and did not supervise the Millard employees, but based on his review of Millard's inspection records he believed the area where Esteban fell was inspected every 30 minutes. He said he reviewed these records for the first time the week of his deposition.
Two weeks later, Esteban filed her summary judgment opposition, arguing triable issues of fact exist as to whether Westfield had actual or constructive notice of the spill before the fall. Esteban relied on Westfield's interrogatory responses in which Westfield represented that neither it nor anyone on its behalf maintained inspection records and that there was no inspection of the area where Esteban fell. Esteban also relied on Cavender's deposition testimony in which he said he did not know how long the liquid had been on the floor and had no personal knowledge of any inspections performed by Millard, other than his recent review of Millard's records.
Esteban alternatively requested the court to grant a continuance based on Westfield's recent disclosure of Millard's sweep sheet records. Esteban submitted her attorney's supporting declaration, who stated under penalty of perjury the continuance was necessary to permit further discovery on issues raised by the recently produced third-party inspection records. Esteban's counsel said he has already propounded additional discovery requests and "am issuing subpoenas for records from [Westfield's] contracted housekeeping and its security companies. Upon receipt of this information, I will likely need to depose several witnesses." Esteban's attorney also said Westfield's general manager revealed at his recent deposition that "there are additional portions of an incident report that have not been produced and, based on that testimony, I have requested those portions and have sent a meet and confer letter to opposing counsel . . . ."
In reply, Westfield opposed the continuance and submitted copies of Millard's sweep sheet records for the incident date (one for the north area and one for the south area), each of which contained a list of half-hour segments with an employee signature indicating no problems were found during each time period. Westfield argued that the newly produced sweep sheets provide "conclusive evidence" that Westfield had no notice of the spill, but did not produce any foundational information showing who prepared these documents or the source of the information contained on the documents. Westfield also proffered additional excerpts of Cavender's deposition in which Cavender opined — based on his recent review of the sweep sheets — that the area where Esteban fell was inspected every 30 minutes. He did not know whether Esteban fell on the north side or the south side of the shopping mall.
Esteban filed a written objection to the sweep sheet documents on the ground that they lacked foundation and were inadmissible hearsay. Esteban also argued Westfield offered the new evidence in its reply and thus this information should not be considered in determining whether Westfield met its burden.
At the summary judgment hearing, Esteban's counsel argued Westfield had not met its burden to show it had no actual or constructive knowledge of the spill, and at the very least there were triable issues of fact on the notice issue. Counsel further reasserted his evidentiary objections to the sweep sheet records and reiterated his request for additional time to conduct discovery pertaining to the inspection records, noting that Westfield's reliance on these records for the first time in its reply brief raised "due process" concerns. When the court asked Esteban's counsel what he hoped to find in conducting additional discovery, counsel did not identify specific facts, but had stated he intended to conduct discovery regarding the facts underlying the newly produced sweep sheets and noted that the information remained disputed as to whether Westfield had conducted reasonable inspections of the premises.
After considering these arguments, the court denied the continuance and overruled Esteban's evidentiary objections to the newly produced evidence. The court granted summary judgment in Westfield's favor, finding Esteban has not sustained her "burden to create triable issues of material fact as to causation . . . ."
DISCUSSION
I. Summary Judgment Principles
A defendant moving for summary judgment "bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) To meet this burden, the defendant must show one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Ibid.) This burden can be met by relying on the opposing party's factually inadequate discovery responses if these responses show the plaintiff "will be unable to prove its case by any means." (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439; see Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 78-81.) A defendant seeking to prevail on this ground must make an affirmative showing that the plaintiff does not possess, and cannot reasonably obtain, evidence to prove her case. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889 (Gaggero).) If the defendant does not present sufficient evidence to meet its initial burden, the court must deny the summary judgment motion. (Aguilar, supra, 25 Cal.4th at p. 850.)
Once the defendant satisfies its burden, " 'the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' " (Aguilar, supra, 25 Cal.4th at p. 849) The plaintiff may not rely upon the mere allegations or denial of her pleadings to show a triable issue of material fact exists. (Ibid.)
We review a summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) We assume the role of the trial court and redetermine the merits of the motion. In doing so, we strictly scrutinize the moving party's papers so that all doubts as to whether any material triable issues of fact exist are resolved in favor of the opposing party. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) Because summary judgment is a drastic procedure which denies the adversary party a trial, "[the motion] should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305.)
II. Legal Principles Governing Slip-and-Fall Negligence Cases
To prove a negligence cause of action, a plaintiff must show the defendant breached a duty of due care and the breach caused the claimed injuries. (Smith v. Freund (2011) 192 Cal.App.4th 466, 472.) However, to prevail on a negligence claim based on a slip-and-fall, the plaintiff must additionally establish the defendant had notice of the hazardous condition. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (Ortega); see Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806.) The mere fact that a customer was injured by a dangerous condition is insufficient to establish liability because a store owner is not an insurer of the safety of its patrons. (Ortega, at pp. 1205-1206; Girretz v. Boys' Market, Inc. (1949) 91 Cal.App.2d 827, 828.)
In Ortega, the California Supreme Court reaffirmed these well-settled rules and reiterated that a slip-and-fall plaintiff may recover against a store owner only if the plaintiff proves the owner had notice of the hazardous condition before the fall. (Ortega, supra, 26 Cal.4th at pp. 1206, 1212.) The high court also confirmed the notice may be actual or constructive, and set forth principles governing the manner in which a plaintiff may prove a store owner's constructive knowledge. (Id. at pp. 1205-1213.) In this regard, the court held constructive knowledge may be established through proof of the owner's failure to conduct reasonable inspections of the premises, reasoning that a store owner has the legal duty to regularly inspect its premises to protect the safety of its customers, and if by the exercise of reasonable care the owner would have discovered a hazardous condition, it is liable for failing to correct it. (Ibid.; see Moore v. Wal-Mart Stores (2003) 111 Cal.App.4th 472, 476-477.)
Specifically, the Ortega court explained: "[P]laintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. [Citation.] In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. [Citation.] It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care." (Ortega, supra, 26 Cal.4th at pp. 1212-1213.) The high court also stated: "Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances." (Id. at p. 1207; Moore v. Wal-Mart Stores, supra, 111 Cal.App.4th at p. 477 ["[t]here are no exact time limits"; "plaintiff must show that the owner had notice of the defect in sufficient time to correct it"].)
Ortega was not a summary judgment case; it arose after a trial. The plaintiff sued Kmart after he slipped on a puddle of milk inside the store. (Ortega, supra, 26 Cal.4th at p. 1204.) At trial, the plaintiff did not produce any evidence as to the source of the spill or the length of time the milk had been on the floor. (Ibid.) Kmart's evidence showed its employees generally inspect the store every 15 to 30 minutes, but Kmart acknowledged it was possible the area where the plaintiff fell was not inspected for two hours. (Ibid.) The jury found in the plaintiff's favor and awarded him damages for his knee injury. (Ibid.) The California Supreme Court affirmed, holding the evidence was sufficient to show constructive knowledge based on evidence that Kmart acted unreasonably by failing to conduct sufficient regular inspections of the floors. (Id. at pp. 1203-1213.) The court reasoned that an "owner's failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it." (Id. at p. 1203.)
Applying these principles to a summary judgment motion on a slip-and-fall claim, a defendant may meet its initial summary judgment burden if it shows it had no actual or constructive knowledge of the dangerous condition, or if it shows that the plaintiff does not possess, and cannot reasonably obtain, this evidence. (Gaggero, supra, 108 Cal.App.4th at pp. 889-890.) With respect to the constructive knowledge element, a defendant may satisfy this burden by affirmatively showing that it (or its agent) conducted regular reasonable inspections of the area where the plaintiff was injured and/or that the plaintiff has no evidence the defendant did not conduct reasonable inspections. If this showing is made, the burden then shifts to the plaintiff to show a triable issue of fact on these issues.
III. Analysis
A. Overview
Under the forgoing principles, Westfield did not meet its initial summary judgment burden. Westfield moved for summary judgment claiming the facts were undisputed that it had no actual or constructive notice of the spill before Esteban fell on the wet floor. To support this claim, it presented only Esteban's deposition testimony describing that the puddle looked "fresh" but that she did know how long the puddle had been on the floor. This testimony was insufficient to show Esteban could not prove the notice element of her case. (See Ortega, supra, 26 Cal.4th at pp. 1203-1213.)
Esteban's lack of personal knowledge did not show Westfield had no actual knowledge of the spill. Westfield did not cite to any evidence showing that Esteban could not prove actual knowledge, nor did Westfield produce a declaration from a knowledgeable employee that the spill was not reported before Esteban's fall or that Westfield employees were otherwise unaware of the spill. Esteban's deposition testimony also did not show Westfield's lack of constructive knowledge, i.e., that the area was inspected within a reasonable time and/or that Esteban could not reasonably obtain evidence showing the lack of such inspections. (Ortega, supra, 26 Cal.4th at p. 1207.) Absent this evidence, Westfield did not satisfy its burden of persuasion establishing a complete defense to Esteban's negligence case.
On appeal, Westfield does not suggest its initial showing was sufficient to prevail on its summary judgment motion. Instead, Westfield contends it met its summary judgment burden by presenting a third party's "sweep sheets" for the date of the accident, which Westfield says show the area was inspected every 30 minutes. However, as explained below, even assuming a 30-minute inspection period would be reasonable as a matter of law, the argument fails because the evidence — submitted for the first time with Westfield's reply papers — was untimely and inadmissible as hearsay and without foundation.
B. New Evidence Was Untimely Submitted
Based on the language of the summary judgment statute and due process considerations, a court generally considers only what is presented in the moving papers in assessing whether a moving party met its initial summary judgment burden. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts).) If the moving party fails to meet its initial burden, the court must deny the motion without evaluating the opposing party's evidence. (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 353-354; see Aguilar, supra, 25 Cal.4th at p. 850 [moving party must successfully meet initial burden of production and persuasion showing claim to be without merit; only then does burden of production "shift" to opposing party to make a prima facie showing of the existence of a triable issue of material fact]; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534 [if defendant fails to meet its initial burden of showing entitlement to judgment as a matter of law, burden does not shift to plaintiff and motion is properly denied without regard to plaintiff's opposition]; Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1142 ["Under the statute, the burden does not shift to a plaintiff resisting summary judgment until a moving defendant has met his or her initial burden to negate the plaintiff's action"]; Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290.)
Citing Weiss v. Chevron, U. S. A., Inc. (1988) 204 Cal.App.3d 1094, 1099 (Weiss), Westfield argues a trial court has the discretion to consider additional evidence submitted with a party's reply papers. We agree that under "exceptional" circumstances, a court has the authority to consider new evidence submitted with a reply brief in determining whether the moving party met its initial burden. (See Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; Weiss, supra, 204 Cal.App.3d at p. 1098.) However, this discretion is exercised consistent with due process only if the opposing party had notice and the opportunity to respond to the new evidence. (See San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316; Plenger, supra, 11 Cal.App.4th at p. 362, fn. 8) [additional evidence is allowed with a summary judgment reply brief "only . . . in the exceptional case" where the plaintiff had "notice and an opportunity to respond to the new material"]; see also Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1191-1192, fn. 11.)
In Weiss, Chevron filed an expert declaration with its reply papers in support of its summary judgment motion. (Weiss, supra, 204 Cal.App.3d at p. 1097.) The trial court relied on the declaration in granting Chevron's motion. (Id. at p. 1098.) In affirming, the Court of Appeal rejected the plaintiff's argument that the late-filed document should not have been considered. (Id. at pp. 1098-1099.) The Court of Appeal reasoned that Chevron "expressed its willingness to continue the hearing on the summary judgment motion to enable plaintiff to review the declaration, depose the declarant, and present further substantive opposition," but "[the] plaintiff affirmatively rejected [these opportunities] . . . . " (Id. at p. 1099.)
Unlike in Weiss, Esteban's counsel specifically requested that Esteban be given an opportunity to respond to the new evidence. Counsel explained he needed to question the individuals who signed the sweep sheet reports to determine the manner in which these inspections were actually performed. This explanation was reasonable particularly given Westfield's earlier interrogatory response indicating no inspections had been performed and given that the newly produced sweep sheets were prepared by a third party entity and there is no indication as to when the third-party employees prepared and/or signed the inspection sheets. Moreover, as counsel noted, the fact that the coca cola spill was never noted on the sweep sheets or the other spill reports for the incident date raised some question as to whether the inspections were actually performed and, if so, why the spill was never identified on the reports even after the fall.
Westfield argues that Esteban "was not blind sided by [the sweep sheet] evidence" and was on notice of the need to address these facts because Esteban "obtained the sweep sheets fourteen days before" she filed the summary judgment opposition. However, due process requires that a party opposing a summary judgment be given the opportunity to address the evidence submitted by the moving party, not merely notice that certain evidence may exist. (See San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.) Although Esteban had access to the inspection reports before submitting her opposition, she was not put on notice of Westfield's intention to rely on that evidence until after she had filed her opposition brief. Westfield could have submitted the Millard records with its initial showing, but for reasons that are unclear, elected not to do so. The party opposing a summary judgment motion does not have the obligation to anticipate and respond in advance to evidence not mentioned in the moving papers. Likewise, the fact that Esteban had taken Cavender's deposition before she filed the opposition does not show she had adequate opportunity to rebut the new evidence. Because Cavender clearly stated he had no personal knowledge of the sweep sheets prepared by the third party entity or of the inspections performed, his testimony did not provide Esteban with a meaningful opportunity to address the new evidence.
On this record, it was improper for the court to grant the summary judgment based on materials in Westfield's reply papers without giving Esteban the opportunity to respond to those papers in writing. (See San Diego Watercrafts, supra, 102 Cal.App.4th 308 at p. 316.) "Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail." (Ibid.)
C. New Evidence Was Inadmissible Hearsay and Without Foundation
We alternatively conclude that even if Westfield had timely submitted the written evidence of its inspections, the evidence was inadmissible. To prevail on a summary judgment motion, the moving party must present evidence that is admissible if offered at trial. (See Code Civ. Proc., § 437c, subd. (c); Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.)
In submitting the sweep sheet documents, Westfield did not present a declaration from a Millard employee regarding the date the documents were prepared or the source of the information contained in the documents. Instead, Westfield attached the documents to its attorney's declaration, who stated: "The sweep sheets are created and maintained by a third party, The Millard Group, who contacted [sic] with defendant to conduct housekeeping services at Parkway Plaza. The sweep sheets are not provided to [Westfield] management unless specifically requested. At the time of this incident, the sweep sheets were not requested by defendant, and the general manager had not viewed the sweep sheets until one week prior to the date of his deposition. Nonetheless, the sweep sheets that were obtained from The Millard Group upon request to The Millard Group by counsel for defendant, clearly indicated that inspections were performed every half hour on the date of this incident."
Westfield also submitted excerpts from Cavender's deposition, in which Cavender acknowledged he does not supervise Millard employees and has no knowledge of the preparation of the sweep sheet reports, but testified he is generally aware of the existence of the documents and that Millard makes them available upon request.
Based on its attorney's declaration and Cavender's deposition testimony, Westfield argued the sweep sheets came within the business records exception to the hearsay rule. (See Evid. Code, § 1271.) Under this exception, "Evidence of a writing made as a record of an act, condition, or event is not inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271; see People v. Hovarter (2008) 44 Cal.4th 983, 1010-1011; Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321-322.)
If a party establishes each of these elements, there is a "foundation . . . ensur[ing] that the entries [in the record] are made by personal knowledge, not on secondhand information days following the act, condition or event." (People v. Dean (2009) 174 Cal.App.4th 186, 197, fn. 5.) The proponent of the admission of the document has the burden of establishing the requirements for admission and the trustworthiness of the information. (People v. Beeler (1995) 9 Cal.4th 953, 978.)
Westfield did not present evidence satisfying its burden to show the sweep sheet documents fall within the business records hearsay exception. There was no evidence as to the mode of preparation of the documents, the sources of information on the documents, or when the signatures were placed on the documents. The statements by Westfield's attorney and general manager were not sufficient to provide the foundation for the admission of these third party documents. The fact that Westfield's general manager has access to these documents does not show personal knowledge of how or when these documents were prepared and maintained. Similarly, there was no showing Westfield's attorney's declaration regarding the documents was based on personal knowledge. Because Westfield's attorney and general manager had no knowledge about the circumstances under which the documents were prepared, their statements were insufficient to provide the foundation for the third party exhibits. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1313; Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 103-104.) Likewise, because Cavender had no personal knowledge of the inspections and did not supervise or manage the inspectors, his deposition testimony about the inspections was insufficient to establish the truth of the facts asserted, including the timing of the inspections. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.)
The record contains no explanation for why Westfield did not produce the sweep sheet evidence in its moving papers and/or why Westfield did not provide foundational evidence to support the admission of this third party testimony. Because a summary judgment completely eliminates a party's right to present his or her case to a jury, a moving party must strictly comply with the procedural and substantive requirements before a court enters judgment in the moving party's favor. By failing to satisfy the statutory requirements, Westfield was not entitled to summary judgment and the court erred in granting judgment in its favor.
DISPOSITION
The judgment is reversed. Respondent to bear appellant's costs on appeal.
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HALLER, J.
WE CONCUR:
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MCCONNELL, P. J.
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HUFFMAN, J.