Opinion
D072189
03-22-2018
DENNIS DIERENFIELD et al., Plaintiffs and Appellants, v. WELLS FARGO BANK, N.A., Defendant and Respondent.
Catanzarite Law Corporation, Kenneth J. Catanzarite, Eric V. Anderton, and Tim James O'Keefe on behalf of Plaintiffs and Appellants. Allen Matkins Leck Gamble Mallory & Natsis, Marissa M. Dennis and Rachel M. Sanders on behalf of 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2016-00037839-CU-BC-CTL) APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Reversed; remanded with directions. Catanzarite Law Corporation, Kenneth J. Catanzarite, Eric V. Anderton, and Tim James O'Keefe on behalf of Plaintiffs and Appellants. Allen Matkins Leck Gamble Mallory & Natsis, Marissa M. Dennis and Rachel M. Sanders on behalf of Defendant and Respondent.
Dennis Dierenfield, William Gilmer, Tye Wynfield, and NNN 1818 Market Street 13, LLC (TIC 13) (Dierenfield, Gilmer, and Wynfield collectively Individual Appellants; Individual Appellants and TIC 13 collectively Appellants) appeal an order granting Wells Fargo Bank, N.A.'s (Wells Fargo) motion to dismiss for forum non conveniens. Appellants contend the superior court erred in granting the motion because Wells Fargo's motion was based on a forum selection clause in a mortgage agreement and none of the Appellants are parties to that agreement. In addition, Appellants maintain the court erred in finding they are closely related to the contractual relationship or are third party beneficiaries for purposes of enforcing the forum selection clause against them. Finally, Appellants insist the court erred in determining that the forum selection clause was mandatory instead of permissive. We agree with Appellants that the subject forum selection clause is permissive. Accordingly, we reverse the order and remand the matter back to the superior court to reconsider Wells Fargo's motion consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Relevant Allegations in the Operative Complaint
Appellants sued multiple defendants for a total of 11 causes of action. The instant appeal only concerns the allegations against Wells Fargo. To provide context, we discuss some necessary background facts, but we do not explain in detail the allegations relating to the other defendants.
The instant dispute arises out of the purchase of a one million square foot office property located at 1818 Market Street in Philadelphia (the Property). NNN 1818 Market Street, LLC (the Company) purchased the Property and then sold fractional tenants-in-common interests to other purchasers, who would then use a special purpose entity to hold their respective interests. In addition, the Company sold membership units to allow others to become members within its limited liability company structure.
Dierenfield and Gilmer purchased a fractional, tenants-in-common interest from the Company. TIC 13 was a special purpose entity in which Gilmer held his interest. Dierenfield held his interest through another special purpose entity, NNN 1818 Market Street 17, LLC (TIC 17). Wynfield purchased membership units in the Company.
The operative complaint purports to allege a class action. Appellants allege that they are class representatives. It is unclear in the record whether a class has been certified. However, whether the action is a class action does not impact our analysis here.
The Individual Appellants claim that they decided to purchase interests in the Property or a membership unit in the Company based on certain representations regarding the total amount of debt that would encumber the Property. Specifically, Appellants contend the Property would be purchased subject to a total agreed upon debt of $132 million evidenced by two promissory notes secured by mortgages payable to and in favor of Wells Fargo. These loans were divided into an "A" promissory note of $122 million and a B promissory note for $10 million. These two promissory notes, together, constituted the agreed upon $132 million acquisition loans and mortgages.
The mortgages were originally in favor of Wachovia Bank, but were subsequently assigned to Wells Fargo.
However, Wells Fargo allegedly over encumbered the Property with an additional promissory note in the amount of $9,630,000 and a corresponding mortgage (Third Mortgage). Appellants did not agree to and did not know about the Third Mortgage. Wells Fargo knew that an undisclosed Third Mortgage and corresponding agreement were not authorized or agreed to by the Individual Appellants or any of the special purpose entities, like TIC 13 and TIC 17. Had the Individual Appellants known about the Third Mortgage, they would not have agreed to purchase a fractional tenant-in-common interest in the Property or a membership unit in the Company.
Appellants did not receive any of the proceeds from the Third Mortgage. Appellants allege that the loan proceeds from the Third Mortgage were used by other defendants to pay kickbacks and make other untoward payments, further harming Appellants' interests and damaging them.
Wells Fargo's Motion to Dismiss
Appellants allege three causes of action against Wells Fargo: breach of mortgage agreement, aiding and abetting breach of fiduciary duty, and unfair business practices under Business and Professions Code section 17200 et seq. In response to the complaint, Wells Fargo brought a demurrer and a motion to dismiss. Wells Fargo argued the complaint should be dismissed under Code of Civil Procedure sections 410.30, subdivision (a) and 418.10, subdivision (a)(2) because the Third Mortgage agreement contained a forum selection clause that required Appellants to sue Wells Fargo in Pennsylvania. Wells Fargo did not submit any evidence to support its motion to dismiss.
The superior court's ruling on the demurrer is not before us; thus, we do not discuss it.
The Third Mortgage agreement contained the following forum selection clause:
"Borrower, to the full extent permitted by law, hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel, (i) submits to personal jurisdiction in the state in which the premises is located over any suit, action, or proceeding by any person arising from or relating to the note, this mortgage or any other of the loan documents, (ii) agrees that any such action, suit or proceeding may be brought in any state or federal court of competent
jurisdiction sitting in the county in which the premises is located, (iii) submits to the jurisdiction of such courts, and (iv) to the fullest extent permitted by law, agrees that it will not bring any action, suit or proceeding in any other forum (but nothing herein shall affect the right of the lender to bring any action, suit or proceeding in any other forum)."
Appellants opposed Wells Fargo's motion to dismiss, arguing they were not parties to the Third Mortgage agreement and the Company did not have authority to encumber the Property beyond $132 million.
Wells Fargo filed a reply.
After considering the papers and entertaining oral argument, the superior court granted the motion. In doing so, the court issued a very detailed minute order. The court found that "terms in the forum selection clause appear mandatory" and enforced the forum selection clause in the Third Mortgage agreement, finding that the agreement applied to Appellants. In doing so, the court found Appellants "concede they are parties to the mortgage agreement and bound by its provisions, including the . . . forum selection clause . . . by alleging a breach of the mortgage agreement count against Wells Fargo." Additionally, the court found that, even if Appellants were not parties to the Third Mortgage agreement, they were bound by the forum selection clause because they are closely related and/or are third party beneficiaries under the Third Mortgage agreement. To support this finding, the court noted that Appellants alleged they have an ownership interest in the Property, and the complaint arose out of the Property. The court further observed that the Third Mortgage "was recorded against [the] property and secured the $9,630,000 loan Wells Fargo made to the borrower." Additionally, the court pointed out the agreement lists additional mortgagors, which included TIC 13. Finally, the court emphasized that the only relationship the Appellants had with Wells Fargo was through the Third Mortgage agreement.
At the hearing on the motion, Appellants also argued the subject forum selection clause was permissive not mandatory. Wells Fargo countered that the clause was mandatory as to Appellants, but permissive as to it.
The court stayed the action against Wells Fargo as to Dierenfield and Wynfield (both California residents) and dismissed the action on behalf of Gilmer and TIC 13, who were not California residents.
Appellants timely appealed.
DISCUSSION
Appellants challenge the superior court's order on two primary grounds. First, they argue they are not parties to the contract containing the subject forum selection clause. Thus, they contend the clause cannot be enforced against them. Second, Appellants maintain the forum selection clause was permissive not mandatory. As such, they assert the superior court engaged in the incorrect analysis of Wells Fargo's motion. We agree with Appellants as to their second argument.
In Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744 at page 751 (Stangvik) our high court described the traditional forum non conveniens as follows: "Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." An exercise of that discretion requires a determination that the alternate forum is a suitable place for trial. (Id. at pp. 751-752; Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1528.) If it is, then the trial court considers the private interests of the litigants and the public's concerns in retaining California jurisdiction. (Stangvik, supra, at p. 751; Investors Equity, supra, at p. 1528.) As the court explained: "The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation." (Stangvik, supra, at p. 751.) The moving party on a dismissal or stay motion on forum non conveniens grounds has the burden of proof. (Ibid.; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1464.) The superior court's ruling on the motion is discretionary and entitled to substantial deference on review. (Stangvik, supra, at p. 754; Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 696.)
However, the analysis for a forum non conveniens motion differs when there is a forum selection clause. In such cases, there is a threshold issue of whether the clause is permissive or mandatory, which is decided de novo on appeal, when no conflicting extrinsic evidence has been presented. (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 471; Intershop, supra, 104 Cal.App.4th at p. 196.)
"An appellate court is not bound by the trial court's construction of a contract when, as here, the interpretation is based solely upon the terms of the written instrument without assessment of conflicting extrinsic evidence." (Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 196 (Intershop.)
"Clauses that grant jurisdiction to a particular forum without expressly making that forum the mandatory situs for resolution of disputes are considered permissive only." (Berg v. MTC Electronic Technologies Co. (1998) 61 Cal.App.4th 349, 359 (Berg).) Merely affording a court jurisdiction without clearly making that jurisdiction exclusive amounts to a permissive provision, rather than a mandatory one: " Additional language giving exclusive jurisdiction to the forum is required. Clauses which merely grant jurisdiction to a designated forum do not prohibit litigation in other appropriate fora. [Citations.] [¶] . . . [¶] A mandatory clause contains clear language showing that jurisdiction is appropriate in the designated forum and none other.' " (Id. at p. 360.)
If the clause is permissive, the traditional forum non conveniens analysis applies. (Intershop, supra, 104 Cal.App.4th at p. 196; Berg, supra, 61 Cal.App.4th at p. 359.) The existence of a permissive forum selection clause is one factor considered along with the other forum non conveniens factors in applying the traditional analysis. (Ibid.)
Yet, when the forum selection clause is mandatory, the traditional forum non conveniens analysis does not apply. (Intershop, supra, 104 Cal.App.4th at p. 196; Berg, supra, 61 Cal.App.4th at p. 358.) Rather, the only inquiry is whether enforcement of the clause would be unreasonable. (Lee v. Southern California University for Professional Studies (2007) 148 Cal.App.4th 782, 787-788; Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680.) A mandatory forum selection clause is presumed to be valid and is enforced unless to do so would be unreasonable under the circumstances. (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496 (Smith); Berg, supra, 61 Cal.App.4th at pp. 358-360.) When there is a mandatory clause, the plaintiff bears the burden of showing that enforcement would be unreasonable. (Smith, supra, at p. 496; Lee, supra, at p. 788.) Our Supreme Court has explained a plaintiff opposing enforcement of a forum selection clause must establish that the selected forum is "unavailable or unable to accomplish" substantial justice. (Smith, supra, at p. 494; accord Intershop, supra, at p. 196.)
As noted, the forum selection clause here provides:
"Borrower, to the full extent permitted by law, hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel, (i) submits to personal jurisdiction in the state in which the premises is located over any suit, action, or proceeding by any person arising from or relating to the note, this mortgage or any other of the loan documents, (ii) agrees that any such action, suit or proceeding may be brought in any state or federal court of competent jurisdiction sitting in the county in which the premises is located, (iii) submits to the jurisdiction of such courts, and (iv) to the fullest extent permitted by law, agrees that it will not bring any action, suit or proceeding in any other forum (but nothing herein shall affect the right of the lender to bring any action, suit or proceeding in any other forum)."
Although the borrowers under the Third Mortgage agreement agreed that they would only sue Wells Fargo in the county where the Property exists, the forum selection clause allows Wells Fargo to sue the borrowers in "any other forum." In this sense, the forum selection clause here does not evidence that the parties selected a single place of jurisdiction for all litigation. (See Intershop, supra, 104 Cal.App.4th at pp. 196-197; Berg, supra, 61 Cal.App.4th at p. 360.) Appellants emphasize this point in arguing the forum selection clause cannot be mandatory because it does not require all the parties to sue in the same forum. Wells Fargo does not respond to this point whatsoever. Instead, it focuses on the portion of the clause that addresses where the borrowers can sue while ignoring the last parenthetical in the clause that allows Wells Fargo to sue in any forum.
Wells Fargo's failure to address Appellants' argument does not appear to be an oversight, but instead, part of Wells Fargo's strategy. When Wells Fargo moved to dismiss the operative complaint based on forum non conveniens, it quoted the forum selection clause in its moving papers, but omitted the last parenthetical of that clause. During the hearing on its motion, the court asked Wells Fargo about the effect of the missing parenthetical and whether the parenthetical indicated that the forum selection clause was permissive. Wells Fargo responded that the forum selection clause was mandatory as to the borrowers, but permissive as to Wells Fargo. Yet, despite being asked about this issue during the hearing in superior court and Appellants raising it in their opening brief, Wells Fargo decided not to address it in the respondent's brief here. Wells Fargo's failure to provide any substantive response on this issue gives us pause.
Here, Wells Fargo has provided no authority that allows a forum selection clause to be both mandatory and permissive depending on which party is suing. However, Wells Fargo states that the subject forum selection clause should be considered mandatory under the "seminal cases" on the issue: Intershop, supra, 104 Cal.App.4th 191 and Berg, supra, 61 Cal.App.4th 349. Neither of those cases is helpful to Wells Fargo.
Wells Fargo argues that the subject forum selection clause is substantially similar to the mandatory forum selection clause in Intershop, supra, 104 Cal.App.4th 191. In that case, the forum selection clause stated, "To the extent permitted by applicable law the parties elect Hamburg to be the place of jurisdiction." (Id. at p. 196; italics omitted.) Although it noted that the subject clause was "not quite as emphatic as the language in other cases with mandatory clauses" (ibid.), the appellate court nonetheless determined "the parties expressed their 'election' that Hamburg, Germany would be 'the place of jurisdiction.' " (Id. at p. 197.) The court found that the parties agreed that Hamburg would be " 'the' place where litigation should be conducted, indicating a single place." (Ibid.) In short, the court concluded that the forum selection clause in Intershop indicated that the parties agreed that the only forum for any litigation between the parties would be in Hamburg. There is no such analogous language in the forum selection clause in the instant matter. Further, Intershop does not address a forum selection clause that is mandatory as to one party but permissive as to the other.
Like Intershop, Berg, supra, 61 Cal.App.4th 349 is not instructive here. In Berg, the court held a forum selection clause only provided for submission to jurisdiction and did not constitute a mandatory clause. (Id. at p. 360.) The clause read, " 'The company [MTC] has expressly submitted to the jurisdiction of the State of California and United States Federal courts sitting in the City of Los Angeles, California, for the purpose of any suit, action or proceeding arising out of this Offering.' " (Id. at p. 357.) Unlike the clause in Intershop, supra, 104 Cal.App.4th 191, the clause in Berg did not contain "express language of exclusivity of jurisdiction or a mandatory place of litigation" because it "simply states that MTC submits to jurisdiction in Los Angeles." (Berg, supra, at p. 358.) The court made clear that a mandatory forum selection clause is created by adding clear language that gives exclusive jurisdiction to the designated forum. (Ibid.) Here, the parties to the Third Mortgage agreement did not agree to an exclusive jurisdiction in a specific forum. Instead, the borrowers were to sue in Pennsylvania, and Wells Fargo could sue in any forum. Such a forum selection clause is not mandatory under the holding of Berg. (Id. at p. 359 ["Clauses that grant jurisdiction to a particular forum without expressly making that forum the mandatory situs for resolution of disputes are considered permissive only."].)
In short, we conclude the forum selection clause here differs from those discussed in Intershop, supra, 104 Cal.App.4th 191 and Berg, supra, 61 Cal.App.4th 349. The subject forum selection clause is a hybrid, requiring the borrowers to bring claims only in Pennsylvania while Wells Fargo can sue in any forum. We see no basis to determine that such a clause is mandatory under existing law in California.
Nevertheless, we are mindful that California courts routinely enforce terms of contracts negotiated by sophisticated parties at arm's length. (Battaglia Enterprises, Inc. v. Superior Court (2013) 215 Cal.App.4th 309, 318 ["We conclude that where, as here, two sophisticated parties agree, pursuant to arm's length negotiations, to litigate an action in one of multiple statutorily permissible venues, they should be held to their agreement."]; CQL Original Products, Inc. v. National Hockey League (1995) 39 Cal.App.4th 1347, 1353, quoting Smith, supra, 17 Cal.3d at pp. 495-496 [" 'No satisfying reason of public policy has been suggested why enforcement should be denied a forum selection clause appearing in a contract entered into freely and voluntarily by parties who have negotiated at arm's length.' "].) It could be that a hybrid forum selection clause like the one before us here should be given effect when negotiated by sophisticated parties at arm's length. But that is not the case here.
Appellants allege in the operative complaint and argue that they are not parties to the Third Mortgage agreement. In demurring to the complaint, Wells Fargo asserted Appellants lacked standing because they were not parties to the agreement. Below, the primary point of contention between Appellants and Wells Fargo was whether the forum selection clause in the Third Mortgage agreement could be enforceable against Appellants. In answering this question in the affirmative, the superior court found that Appellants had conceded they were parties to the Third Mortgage agreement and bound by its provisions. It based this finding on Appellants' seventh cause of action: breach of mortgage agreement. However, as we explain below, the title of the seventh cause of action is a misnomer.
Wells Fargo filed a combined motion to dismiss and demurrer. In the motion to dismiss, it argued the complaint should be dismissed based on forum non conveniens as the Third Mortgage agreement contained a forum selection clause. To this end, Wells Fargo argued the Third Mortgage agreement was enforceable as to Appellants. However, it asserted its demurrer should be sustained because the individual Appellants had no standing as they did not sign the Third Mortgage agreement and did not allege that they assumed the obligations under that agreement. Thus, even Wells Fargo's own papers below raise the issue of whether Appellants were parties under the Third Mortgage agreement.
Although couched as a breach of contract claim, Appellants' seventh cause of action lacks even the basic elements of such a cause of action. Generally, the elements of a breach of contract cause of action require a contract, the plaintiff's performance or excuse for nonperformance, the defendant's breach, and resulting damages to the plaintiff. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) In the operative complaint, Appellants alleged that Wells Fargo was aware that the maximum amount the Property could be encumbered was $132 million. Appellants further averred that they did not authorize the Company or any representative of the Company to enter into the Third Mortgage agreement. Appellants then alleged that Wells Fargo "breached its/their separate contractual duties by knowingly allowing the unauthorized $9,630,000" Third Mortgage loan. Thus, it appears that the wrong Appellants base their cause of action on is Wells Fargo entering into the Third Mortgage agreement, not breaching it. To this end, the allegations are clear that Appellants are not a party to the Third Mortgage agreement and did not authorize anyone to enter into that agreement on their behalf. What confuses the issue are Appellants' allegations that Wells Fargo breached a "Mortgage" and the title of the cause of action: breach of mortgage agreement. However, "[w]e ignore erroneous or confusing labels in the pleading and look to its gravamen to determine what cause of action is stated." (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1283.) Although inartfully pled, we find nothing in the allegations of the seventh cause of action that supports the conclusion that Appellants conceded they are parties to and governed by the Third Mortgage agreement. This conclusion is further buttressed by Wells Fargo's argument in the demurrer that the individual Appellants lacked standing because they were not signatories to the Third Mortgage agreement. As such, we are hesitant to expand existing law and enforce the subject hybrid forum selection clause against Appellants who were not parties to the Third Mortgage agreement. We therefore conclude the forum selection clause here is permissive.
We acknowledge that the superior court also found that the forum selection clause in the Third Mortgage Agreement is enforceable against Appellants because they are "closely related parties or third-party beneficiaries to the mortgage agreement." However, the court's analysis involved enforcing what it deemed to be a mandatory forum selection clause. Because we have determined the forum selection clause was permissive, the superior court's finding does not affect our analysis. That said, we offer no opinion on whether the court's finding was correct, supported by substantial evidence, or constituted an abuse of discretion.
Having determined that the subject forum selection clause was permissive, this appeal becomes somewhat problematic. Wells Fargo's motion to dismiss was premised on the existence of a mandatory forum selection clause and that Appellants did not show that enforcement of that clause would be unreasonable. Indeed, this is precisely what the superior court found when it concluded Appellants did not show Pennsylvania was an unsuitable or improper forum. Nonetheless, Wells Fargo maintains the court "considered a number of factors in deciding to enforce the forum selection clause" and "properly balanced various factors in determining that the forum selection clause applied, and ultimately, in granting Well Fargo's motion to dismiss." In making this argument, Wells Fargo glosses over the fact that a court engages in a different analysis in considering a permissive forum selection clause as opposed to a mandatory forum selection clause. (See Intershop, supra, 104 Cal.App.4th at p. 196; Berg, supra, 61 Cal.App.4th at pp. 358-359.)
Below, the court engaged in the proper analysis under a mandatory forum selection clause. Because we determined the forum selection clause is permissive, the court must engage in the traditional forum non conveniens analysis as set forth in Stangvik, supra, 54 Cal.3d at pages 751 through 752. (See Intershop, supra, 104 Cal.App.4th at p. 196; Berg, supra, 61 Cal.App.4th at pp. 358-359.) Here, in its order, the superior court correctly described the law of forum non conveniens in general. However, there is no indication in the record the superior court evaluated Wells Fargo's motion under the appropriate factors or the proper burden of proof before exercising its discretion. When the motion was heard, the court's focus was on whether Appellants could be bound under the subject forum selection clause. After finding that the clause appeared mandatory, the court then determined that Appellants had not shown that a Pennsylvania forum was unreasonable.
In its minute order, the court quotes the forum selection clause, but like Wells Fargo, omits the parenthetical ending of the clause whereby Wells Fargo is not prohibited by the clause from suing the borrowers in any other forum.
"In exercising discretion, the trial court is required to make a reasoned judgment which complies with applicable legal principles and policies. [Citations.] 'Discretion will thus be deemed to have been abused if the trial court fails to exercise discretion where such exercise is required.' " (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561.) For this reason, we remand the cause so the trial court can exercise its discretion considering the traditional forum non conveniens factors and treating the subject forum selection clause as permissive. Consequently, it might be prudent for the superior court to allow Wells Fargo to bring a new motion addressing the traditional analysis of forum non conveniens and give Appellants the opportunity to oppose it.
In reversing the order here, we offer no opinion about whether Wells Fargo's motion should be granted under traditional forum non conveniens analysis. Additionally, nothing in this opinion should be read as a comment on the validity of any of Appellants' causes of action against Wells Fargo. --------
DISPOSITION
The order is reversed. The matter is remanded to the superior court to reconsider Wells Fargo's motion consistent with this opinion. If the court deems it necessary, it may require Wells Fargo to submit a revised motion to dismiss for forum non conveniens and provide Appellants with the opportunity to oppose it. Appellants are awarded their costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.