Opinion
No. 1-13-3278
04-20-2016
D & J INTERIOR, INC., a corporation, Plaintiff-Appellant, v. ASPIRA INC. OF ILLINOIS, et al., Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 08 CH 8198 The Honorable Lewis Nixon, Judge Presiding. JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Mason and Justice Lavin concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not abuse its discretion in awarding attorney fees to defendants as a sanction for plaintiff's failure to comply with discovery orders. ¶ 2 A builder brought suit against a charter school and mortgagees for failure to complete payment on a contract and claiming a mechanic's lien. The circuit court dismissed the case with prejudice and also awarded the school and mortgagees attorney fees as sanctions for the builder's failure to comply with court-ordered discovery. The builder appeals from the court's orders. For the following reasons, we affirm the circuit court.
¶ 3 BACKGROUND
¶ 4 D & J Interior, Inc. (D & J), a building contractor, filed a complaint on March 8, 2008, against Aspira Inc. of Illinois (Aspira), a charter school in Chicago, Illinois, and Delta Tax Credit Fund (Delta), and Fifth Third Bank (Fifth Third), the mortgagees, (collectively defendants, unless otherwise noted), alleging failure to complete payment on a contract to renovate a building for use as a school and claiming a mechanic's lien. ¶ 5 Subsequently, Aspira filed an answer, affirmative defenses and counterclaims alleging D & J abandoned the project before substantial completion, requiring Aspira to complete the project at great expense. Delta and Fifth Third also filed their answer and affirmative defenses claiming that D & J failed to record its lien in a timely manner and that D & J breached its contract and did not add value to the property. Shortly thereafter, D & J's counsel moved to withdraw as its attorney and when no substitution of attorney was filed, the court dismissed the case for want of prosecution. The dismissal was later vacated. ¶ 6 The year 2009 was consumed primarily with motions, continuances and D & J's obtaining new counsel. In 2010, D & J filed an amended complaint, which was followed by defendants' motions directed to the pleadings. In early 2011, written discovery commenced with a completion date of November 22, 2011. In December 2011, the defendants issued an Illinois Supreme Court Rule (Rule) 201(k) letter requesting compliance with discovery. Ill. S. Ct. R. 201(k) (eff. Jan. 1, 2013). D & J responded with unverified answers. Later in December 2011, at a status hearing, D & J's counsel indicated there were differences between he and D & J and that D & J was communicating with other counsel. The court continued the case for status on substitution of attorney and discovery compliance until February 21, 2012. ¶ 7 In January 2012, no substitution of attorney was filed and D & J had not complied with discovery orders. On January 25, 2012, Delta filed a motion for rule to show cause based on D & J's failure to comply with discovery, which was set for a hearing on the status date of February 21, 2012. D & J did not appear through counsel and had not complied with discovery orders. A continuance was entered until March 20, 2012. On that date, D & J again failed to appear through counsel, and the court entered an order of dismissal for want of prosecution. Subsequently, D & J moved to vacate the dismissal, which was granted. At that same time, D & J was ordered to comply with written discovery within seven days. ¶ 8 On May 24, 2012, the court ordered D & J to provide "numbered" documents in response to discovery production. The parties were also ordered to conduct a discovery conference. Three months later, in August 2012, the court ordered party depositions to be completed by October 27, 2012. ¶ 9 On October 26, 2012, following the initial deposition of D & J's principal Darius Maroszyk (Maroszyk), Delta filed a second motion for rule to show cause based upon Maroszyk's testimony that records had been withheld. The records withheld included photographs that allegedly showed work performed by D & J well after the project was abandoned. The records also included alleged copies of check stubs and other documents that showed payments to, and work performed by, D & J's subcontractors. On October 29, 2012, the court entered an order continuing the rule to show cause and directing D & J to provide a date for the second deposition of Maroszyk. Maroszyk's second deposition took place on November 19, 2012, at which time he identified more documents that had not been disclosed in response to discovery requests. ¶ 10 At a subsequent hearing on November 27, 2012, D & J failed to appear. On December 13, 2012, a hearing was set for the second rule to show cause, which was continued. In January 2013, D & J was allowed additional time to respond to the rule to show cause. The court also entered a discovery order for D & J to provide a Rule 214 affidavit of completeness within 10 days. Ill. S. Ct. R. 214 (eff. Jan. 1, 1996). On March 12, 2013, five years after the case was filed, the court entered an order requiring that D & J file a Rule 214 affidavit within seven days, that D & J was barred from relying thereafter on any document in its possession or control not previously turned over, and D & J was ordered to pay defendants' attorney fees for time related to efforts to compel compliance with discovery. ¶ 11 On April 25, 2013, after a hearing, the court awarded Aspira, $18,612.50, and Delta and Fifth Third $20,098.50, an aggregate sum of $38,711, in attorney fees as a sanction for D & J's failure to comply with the rules regarding discovery. The court order stated that "Plaintiff is ordered to pay Defendants' attorneys fees for all time spent by Defendants' attorneys appearing in court, preparing all motions for rule to show cause and supplemental motions, and court preparation time for all statuses, hearings and/or case managements on the following dates: 1/24/12; 3/20/12; /5/24/12; 8/27/12; 8/28/12/ 9/20/12; 10/26/12; 10/29/12; 11/19/12; 11/27/12; 12/13/12; 1/8/13; 3/12/13." The order indicated that these fees were inclusive of deposition dates and deposition preparation. The order also stated that "the total fees submitted by the Defendants are stipulated to by Plaintiff only to the extent that the total, as submitted, is mathematically correct." In May 2013, D & J filed a motion to reconsider, which the court denied and afforded D & J 60 days to pay the fees. On August 6, 2013, when the court determined that the fees had not been paid the court dismissed D & J's action, but stayed the order until September 5, 2013, to allow D & J an additional 30 days to pay the fees. On September, 19, 2013, the court denied D & J additional time to pay the fees and upheld the August 6, 2013, order which dismissed D & J's action with prejudice. D & J filed a timely notice of appeal.
Rule 201(k) provides in relevant part: that every motion with respect to discovery shall incorporate a statement that after personal consultation and reasonable attempts to resolve differences, the parties have been unable to reach accord. Ill. S. Ct. R. 201(k) (eff. Jan. 1, 2013).
Rule 214 provides that the party required to produce documents shall furnish an affidavit stating whether the productions is complete in accordance with the request. Ill. S. CT. R. 214 (eff. Jan. 1, 1996).
D & J does not argue that the dismissal of the case should be reversed. --------
¶ 12 ANALYSIS
¶ 13 On appeal, D & J contends that the circuit court's award of $38,711, in attorney fees as a sanction imposed pursuant to Rule 219(c) was an abuse of discretion. Ill. S. Ct. R. 219(c) (eff. July 1, 2002). D & J raises three claims in support of its contention. D & J argues: (1) there was no evidence that D & J's alleged nonconformance was deliberate; (2) there was never a finding of a discovery violation on the part of D & J by the court; and (3) the award was not proportionate to the gravity of the alleged failure to comply with discovery and amounted to a punishment. ¶ 14 Defendants respond that the court was within its discretion in awarding attorney fees based on D & J's repeated failure to comply with discovery and that the fees were proportionate to the gravity of the violations. They ask that we affirm the court's judgment in their favor. ¶ 15 We now turn to D & J's challenges to the court's orders awarding attorney fees as a sanction. We begin with the basic premise that the goal of the discovery process in Illinois is full disclosure. Copeland, v. Stebco Products Corp., 316 Ill. App. 3d 932, 937 (2000); (citing Buchler v. Whalen, 70 Ill. 2d 51, 67 (1977). Illinois Supreme Court Rules on discovery are mandatory rules of procedure subject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21 (1999). "Discovery is not a tactical game; rather, it is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial." Copeland, 316 Ill. App. 3d at 937 (quoting Boland v Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d 645, 651 (2000)). ¶ 16 Rule 219(c) authorizes a trial court to impose a sanction upon any party who unreasonably refuses to comply with any provisions of the court's discovery rules or any order entered pursuant to these rules. Ill. S. Ct. R. 219(c); Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 120 (1998). A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits. Wakefield v. Sears, Roebuck & Co., 228 Ill. App. 3d 220, 226 (1992). When imposing sanctions, the court's purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 62 (1995). ¶ 17 Pursuant to Rule 219(c), the trial court may award attorney fees as sanctions when a party's misconduct has caused another party to incur fees. Jordan v Bangloria, 2011 IL App (1st) 103506, ¶ 19 (citing Dyduch v. Crystal Green Corp., 221 Ill. App. 3d 474, 480 (1991)). The only restriction imposed by Rule 219(c) is that the award of attorney fees must be related to the misconduct arising from failure to comply with procedural rules relating to discovery. Jordan, 2011 IL App (1st) 103506, ¶ 19 (citing Hartnett v. Stack, 241 Ill. App. 3d 157, 175 (1993)). The decision to impose a particular sanction under Rule 219(c) is within the discretion of the trial court and, thus, only a clear abuse of discretion justifies reversal. Boatman's National Bank v. Martin, 155 Ill. 2d 305, 314 (1993). ¶ 18 Rule 219(c) states in pertinent part: that the court "[m]ay impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee." Ill. S. Ct. R. 219 (c). ¶ 19 We now consider D & J's first contention that the circuit court abused its discretion by awarding sanctions of $38,711 in attorney fees were there was no showing of deliberate disregard for the court's discovery orders. D & J acknowledges that it violated the single discovery order of November 1, 2011, but that its failure to comply with the court's order was justified because of its counsel's withdrawal during this period. D & J contends that although the order of November 1, 2011, required all parties to complete all written discovery on or before November 22, 2011, D & J filed its response on December 13, 2011. ¶ 20 D & J argues that with the exception of the November 1, 2011 order, it had complied with all subsequent related discovery orders. D & J points to the facts that it amended its response to interrogatories in June 2012, and filed supplemental responses to Delta's production request wherein D & J produced four disks containing photographs of the subject property. D & J also maintains that many documents requested were not in its possession and that Maroszyk attested that he made an effort to find these additional documents, but none could be found. ¶ 21 Additionally, D & J contends that no motion to compel discovery was ever brought by any party in the course of this litigation. Moreover, D & J claims that there was no showing of deliberate, contumacious, or unwarranted disregard of the court's authority on the part of D & J that would warrant a $38,711 sanction of attorney fees. D & J maintains that as it has complied with court orders, the monetary sanction was inappropriate, excessive and amounted to a punishment, which is impermissible under Rule 219(c). Ill. S. Ct. R. 219(c). ¶ 22 Defendants respond that the record is replete with D & J's failure to comply with the court's discovery deadlines and orders, failure to prosecute and withholding of evidence, all causing undue delay and expenditure of attorney fees by defendants in efforts to compel D & J's compliance. Defendants contend that D & J's ongoing issues with its attorneys and noncompliance with the court's discovery orders compelled defendants to file two motions for rule to show cause, which lead to the filing of supplemental briefs, scheduled hearings and continuances, costing defendants additional attorney fees. Defendants assert that D & J's lack of diligence in failing to search for records, its delay of proceedings and its willful disregard for the court's orders are all indications of D & J's deliberate and contumacious disregard for the court's authority. ¶ 23 Defendants argue that the court, exercising its discretion, after briefing and argument, entered a series of discovery orders on March 12, 2013, including sanctions against D & J. As a sanction, the court barred D & J from relying thereafter on any document not previously turned over that was in its possession or control. The court also ordered D & J to pay all defendants' attorney fees for time related to efforts to compel discovery. Subsequently, D & J's failure to comply with the sanctions order caused the dismissal of the case. Defendants argue that these were proper sanctions under Rule 219(c) for failure to comply with discovery orders. Ill. S. Ct. R. 219(c). ¶ 24 Additionally, Delta and Fifth Third respond that D & J's argument, that it was sanctioned for a single violation of the discovery order entered November 1, 2011, is in contravention of the facts. Delta and Fifth Third point to the ensuing year and a half, where D & J never complied with that order. Further, Delta and Fifth Third maintain that the failure to disclose documents which formed the basis of D & J's claims caused both of Maroszyk's depositions to be aborted. As an example, Delta and First Third claim Maroszyk's first deposition went ahead as scheduled based on an oral representation that document production was complete. However, during the deposition, defendants learned that contracts, photographs, invoices, receipts, check stubs and requests for information had been withheld. Thus, the deposition had to be continued. Moreover, at Maroszyk's second deposition he disclosed for the first time that a computer had been used during the project containing photographs and requests for information, though the computer was now inoperative. Delta and Fifth Third argue that D & J's attitude toward discovery is amply demonstrated by the Maroszyk depositions where documents that formed a basis for D & J's claim were continually being disclosed for the first time more than a year after they were requested in discovery and almost a year after the court ordered D & J to produce the documents. ¶ 25 Delta and Fifth Third claim that the extent of D & J's nondisclosure of relevant documents caused surprise and needless and costly delays in discovery. Delta and Fifth Third maintain that five years after the claim was filed, the circuit court entered discovery sanctions against D & J based on its failure to produce relevant documents, despite court orders to do so. Delta and Fifth Third contend that the sanction of $38,711, in attorney fees was warranted and not an abuse of discretion. ¶ 26 Initially, we note that defendants point out that the failure to include the report of proceedings in the record on appeal requires affirmation of the court's awards. Defendants argue that D & J's failure to provide the reports of proceedings is fatal to its claim because "to support a claim of error, the appellant has the burden to present a sufficiently complete record." Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005) (citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984)). "Without an adequate record preserving the claimed error, the reviewing court must presume that the circuit court had a sufficient factual basis for its holding and that its order conforms to the law." Corral, 217 Ill. 2d at 157 (quoting Foutch, 99 Ill. 2d at 392). Therefore, "[w]here the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding." Corral, 217 Ill. 2d at 156 (quoting Webster v. Hartman, 195 Ill. 2d 426, 432 (2001)). To the extent the record is lacking here, this deficiency will be construed against D & J. ¶ 27 We agree with defendants and find that D & J has shown a deliberate disregard for the court's authority throughout the litigation. The claim was originally filed in 2008, and subsequently dismissed for want of prosecution for failure of D & J's counsel to appear. D & J then moved to vacte the dismissal and set the matter for a hearing. After the cause was reinstated, D & J's conduct caused further delay when the case was dismissed for want of prosecution a second time when the court held that D & J did not want the services of its present attorney and had not secured a new attorney. Again, D & J was allowed to vacate the dismissal and reinstate the case. Additionally, defendants were required to file two motions for rule to show cause and supplemental briefs, causing the court to set hearings and continuances all in an effort to compel D & J to respond to discovery requests. ¶ 28 Thus, it was not just that D & J violated one court order, but showed a deliberate disregard for the court's authority by continually failing to show up for court and failing to comply with discovery. "Where it becomes apparent that a party has willfully disregarded the authority of the court, and such disregard is likely to continue, the interests of that party in the lawsuit must bow to the interests of the opposing party." Sander, 166 Ill. 2d at 67-68. ¶ 29 In our view, D & J's conduct was deliberate, contumacious and warranted the sanction imposed. See Sander, 166 Ill. 2d 48, 68 (1995). Accordingly, we find that the court did not abuse its discretion in awarding $38,711, in attorney fees as a sanction against D & J. ¶ 30 We now turn to D & J's second contention that the circuit court abused its discretion in awarding sanctions of $38,711, in attorney fees when the court never made a finding of a discovery violation on the part of D & J. D & J argues that such a finding is necessary in order to impose sanctions under Rule 219(c). Ill. S. Ct. R. 219(c). D & J maintains that the record is devoid of any indication that its manner of conducting discovery or pursuing the case was subject to any prior reprimand from the court. ¶ 31 Additionally, D & J contends that the court sua sponte picked certain dates upon which to award defendants' attorney fees and that these dates were arbitrarily chosen and did not relate to D & J's alleged failure to comply with discovery. D & J claims that an examination of the fees indicates that they were not related to any D & J misconduct in not complying with the court's discovery orders. D & J claims that absent a finding of a discovery violation on its part, the court abused its discretion when it sanctioned D & J by ordering it to pay $38,711, of defendants' attorney fees. ¶ 32 Defendants respond that D & J's argument that the court never made a finding of a discovery violation, citing to Rule 219(c), is misleading. Ill. S. Ct. R. 219(c). Defendants contend that the requirements of Rule 219(c) are met where the reasons for the sanction are specifically stated in the motion that gave rise to a sanction order, or where the grounds for the sanction are apparent from the record. Ill. S. Ct. R. 219(c). Defendants argue that in addition to the record, the basis for the imposition of sanctions was set forth in detail in the second rule to show cause, supplemental brief and supporting documentation filed on their behalf with the court. ¶ 33 Defendants maintain that D & J's repeated issues with its attorneys caused delays. Defendants point to the fact that twice, once in 2008, and then again in 2012, due to D & J's problems with its attorneys, the court entered a dismissal for want of prosecution. Both were followed by motions to vacate on the part of D & J, which were granted. As further proof of delay, because of D & J's discovery violations, there were two motions for rule to show cause filed on behalf of the defendants. ¶ 34 Defendants contend that they issued discovery, wrote 201(k) letters, made phone calls and repeatedly petitioned the court for relief from D & J's refusal to participate in discovery. In addition, they were twice forced to cancel the deposition of Maroszyk because he withheld relevant documents. Also, defendants contend that at the time the discovery sanction of attorney fees was issued, they still did not have most of the documents which were disclosed for the first time at Maroszyk's depositions. ¶ 35 Defendants maintain that it was beyond dispute that D & J never fully complied with its discovery obligations and that it took repeated efforts by the defendants and court orders to get the incomplete document production that was accomplished at the time the case was dismissed. Defendants assert that based on D & J's failure to comply with discovery, the circuit court was well within its discretion in awarding the sanction of attorney fees against D & J. ¶ 36 We agree, and as stated previously, during the years of litigation, D & J violated numerous separate court orders setting deadlines for discovery. We also note that D & J's action was twice dismissed by the court for want of prosecution and D & J was extended the opportunity to refile its claim. Defendants were required to file two motions for rule to show cause, supplemental briefs in support of the motions and appear for hearings on the motions, all in an effort to compel D & J to adhere to the court's discovery orders. Although the court did not specifically find a discovery violation, we find that the court did not abuse its discretion by awarding attorney fees where D & J continued its noncompliance with defendants' discovery requests and defied discovery deadlines set by the court. See Jordan, 2011 IL App (1st) 103506, ¶ 19. ¶ 37 We now turn to D & J's third and final contention on appeal that the court abused its discretion by awarding sanctions of $38,711 in attorney fees when the award was not proportionate to the gravity of the alleged failure to comply with discovery and amounted to a punishment. D & J maintains that the court's order barring D & J from relying on any document not previously turned over in its possession or control was an effective and a proportionate sanction and that the additional monetary sanction was inappropriate, excessive and amounted to punishment. D & J maintains that the court's objective was to punish it for the amount of time the litigation was taking to proceed, and that under Rule 219(c), the court must not impose punishment on the litigant. Ill. S. Ct. R. 219(c). See Dolan, 2012 Ill. App. (1st) 111505, ¶ 54 (under Rule 219, the trial court must choose a sanction that will promote discovery, not impose punishment on a litigant.) Again, D & J argues that its failure to comply with a single discovery order does not warrant the drastic sanction of $38,711 in defendants' attorney fees imposed by the court. ¶ 38 Additionally, D & J makes the argument that attorney fees were awarded to Delta and Fifth Third without a fee petition, and that defendants were awarded attorney fees without a hearing and without an opportunity for D & J to be heard on the reasonableness of the fees as required under Rule 219. Ill. S. CT. R. 219. ¶ 39 Defendants respond that the circuit court's sanction of attorney fees is a result of D & J's discovery delays and violations, and the fees awarded are directly related to defendants' efforts to compel compliance with discovery. Defendants contend that the court repeatedly granted D & J additional time to comply with discovery and reconcile with its attorneys, progressively adding sanctions that ultimately D & J failed to comply with. ¶ 40 Defendants maintain that the court's order is tied to the dates of D & J's noncompliance with discovery and the actions they took to enforce discovery: on January 24, 2012, defendants filed their original motion for rule to show cause; on March 20, 2012, the case was dismissed for want of prosecution; on May 24, 2012, D & J was ordered to comply with production requests and to meet for discovery conference; on August 27, 2012, the court ordered the depositions of D & J's principal; on August 28, 2012, defendants requested production of unproduced photographs; on September 20, 2012, e-mail exchanges between the parties regarding D & J's production of discovery requests; on October 26, 2012, defendants filed their second motion for rule to show cause; on October 29, 2012, the court held a hearing regarding continuation of Maroszyk's deposition; on November 19, 2012, Maroszyk's deposition was continued; on November 27, 2012, the court held a discovery status hearing; on December 13, 2012, the court held a hearing on the second motion for rule to show cause and was continued; on January 8, 2013, the hearing on the second motion for rule to show cause was again continued; and, on March 12, 2013, the court held a hearing on the second motion for rule to show cause. Defendants assert that each and every date was related to D & J's unreasonable conduct in discovery or the need for defendants to take action to enforce discovery. ¶ 41 Defendants contend that Dolan v. O'Callaghan, 2012 IL App (1st) 111505, supports the court's award of attorney fees. In Dolan, the sanctioned party claimed that he had complied with the court's discovery orders and that the sanctions were therefore imposed for the improper purpose to punish him. Id. at ¶ 53. The court found that there was sufficient evidence presented for the court to conclude that the sanctioned party unreasonably failed to comply with the court's discovery order. Id. at ¶ 55. The sanctioned party argued that he should not have to pay for the attorney fees incurred in connection with a motion to compel and a motion for sanctions. Id. at ¶ 57. The court, however, held that since the sanctioned party's conduct caused the expenditure of fees, he should have to pay. Id. ¶ 42 In response to D & J's argument that Delta and Fifth Third never filed a fee petition and there was never a hearing on the reasonableness of the fees, Delta and Fifth Third contend that their original motion for a rule to show cause, their second motion for rule to show cause and their supplemental Rule 219(c) brief in support of their second motion, all sought attorney fees as a Rule 219(c) sanction for D & J's discovery violations. Ill. S. Ct. R. 219(c). Delta and Fifth Third also state that D & J stipulated to the amount of the fees as mathematically correct as reflected in the April 25, 2013, court order awarding the fees. Further, they argue that absent a report of the proceedings, this court can only assume that what occurred at the hearing was sufficient to support the circuit court's order of April 25, 2013. See Corral, 217 Ill. 2d at 156. ¶ 43 We find that the award was expressly related to the efforts to compel compliance and the order for attorney fees required as much; "all time spent by defendants' attorneys appearing in court, preparing all motions for rule to show cause and supplemental motions and court preparation time for all status hearings and/or case managements," specifying court dates. In addition, the time was "inclusive of deposition dates, deposition preparations, and all time spent preparing all motions for rule to show cause and supplemental briefing to said motions." See Jordan, 2011 IL App (1st) 103506, ¶ 19 (The only restriction imposed by Rule 219 (c) is that the award of attorney fees must be related to the misconduct arising from failure to comply with procedural rules relating to discovery). We find that the sanction was proportionate to D & J's failure to comply with discovery. ¶ 44 Under the circumstances of this case, we conclude that sanctions were appropriate under Rule 219(c), which gave the circuit court the authority to award attorney fees for D & J's repeated noncompliance with the court's orders. Ill. S. Ct. R. 219(c). We affirm the circuit court's sanction orders on this basis.
¶ 45 CONCLUSION
¶ 46 Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court. ¶ 47 Affirmed.