Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Super.Ct.No. RIC362156
Troy A. Stewart for Defendant and Appellant.
Glicker & Associates and Brian I. Glicker for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Following a bench trial, the trial court entered judgment in favor of Matthew Pfeffer (Pfeffer) and against Missionary Foundation, Inc. (MFI) in the principal amount of $700,000. MFI appeals the judgment, and we reverse.
II. BACKGROUND
In a written decision, the trial court determined that, in August 1999, MFI induced Pfeffer to enter into a settlement agreement by extrinsic fraud. The settlement agreement was entered into in a prior action involving Pfeffer, MFI, and a third party, Wilson Creek Farms, LLC (Wilson Creek). In the prior action, Pfeffer was claiming he was entitled to purchase 740 acres of land from MFI for $2.15 million. Wilson Creek was also claiming it had a right to purchase the 740 acres.
Pursuant to the terms of the settlement agreement, Pfeffer agreed to purchase, on a net basis, 220 of the 740 acres, and Wilson agreed it would purchase the other 520 acres. Before the settlement agreement was signed, Pfeffer entered into an agreement with Sam Perricone (Perricone) to sell the entire 740 acres to Perricone for $2.85 million. Thus, had Pfeffer purchased the entire 740 acres from MFI, he would have realized a profit of $700,000 on the sale to Perricone.
It was undisputed that Pfeffer became aware of the extrinsic fraud shortly after the settlement agreement in the prior action was signed in August 1999. He did not raise his extrinsic fraud claim in the prior action, however. Instead, in response to a March 2001 motion by MFI to enforce the settlement agreement and enter it as a judgment in the prior action, Pfeffer claimed that the parties had many unresolved issues under the terms of the settlement agreement. Thus, in the prior action, he claimed he was still entitled to purchase the entire 740 acres from MFI for $2.15 million.
Pfeffer filed the present action against MFI in August 2001. He originally sought to rescind the settlement agreement on the basis of extrinsic fraud. But after the present action was filed, the court in the prior action granted MFI’s motion and entered judgment pursuant to the terms of the settlement agreement. The court then issued an order enforcing the judgment, which order extinguished Pfeffer’s right to purchase any portion of the 740-acre property. MFI then sold the entire 740-acre property to Wilson Creek for $2.15 million, pursuant to the terms of the August 1999 settlement agreement and the judgment in the prior action.
After the 740-acre property was sold to Wilson Creek, Pfeffer took the position in the present action that setting aside the settlement agreement or the judgment in the prior action would be futile. Thus, he limited his claim at trial in the present action to seeking $700,000 in money damages from MFI, the amount of profit he claimed he would have realized on reselling the 740 acres to Perricone.
III. ISSUES ON APPEAL
MFI claims: (1) the trial court was without “equitable jurisdiction” in the present action; (2) to the extent the court had jurisdiction in the present action, its jurisdiction was limited to setting aside the judgment in the prior action and did not include authority to award money damages; (3) the $700,000 judgment is “inequitable” because it precludes MFI from pursuing claims it could have pursued against Pfeffer in the prior action; (4) the trial court erroneously refused to consider MFI’s request for a statement of decision; (5) insufficient evidence supports the trial court’s determination that MFI obtained the settlement agreement through extrinsic fraud; (6) the trial court prejudicially erred in excluding evidence of Pfeffer’s lack of diligence in attacking the judgment in the prior action; and (7) the trial court erroneously applied Civil Code section 3343 in calculating the $700,000 in damages awarded to Pfeffer.
We find it unnecessary to address these myriad claims, however, because MFI raises one additional claim that is both meritorious and dispositive: Pfeffer was barred from raising his extrinsic fraud claim in the present action, because he did not demonstrate a satisfactory excuse for failing to raise his extrinsic fraud claim in the prior action. Specifically, Pfeffer did not assert his extrinsic fraud claim in opposition to MFI’s March 2001 motion to enforce the settlement agreement as a judgment in the prior action, although he had known of the extrinsic fraud since shortly after it was allegedly perpetrated upon him in August 1999.
We therefore reverse the $700,000 money judgment in favor of Pfeffer. We also reject Pfeffer’s preliminary claim that MFI’s notice of appeal was not timely filed and that MFI’s appeal must therefore be dismissed.
IV. DETAILED FACTS AND PROCEDURAL HISTORY
A. The 1997 Purchase and Sale Agreement Between Pfeffer and MFI
On March 5, 1997, Pfeffer and MFI entered into a real estate purchase and sale agreement whereby MFI agreed to sell and Pfeffer agreed to purchase 740 acres of vacant land in the Aguanga area for $2.15 million. In May 1999, and before escrow closed on the sale of the 740 acres to Pfeffer, Pfeffer entered into an agreement to resell the 740 acres to Perricone for $2.85 million. The 740 acres consisted of approximately 520 acres of farmland and 220 acres known as the “mining plan.” The mining plan followed a creek bed that ran through the property and contained 11 million tons of extractable sand deposits.
We hereby grant MFI’s request that we take judicial notice of the existence of certain documents filed in the prior action. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In 1997, and during the course of conducting his “due diligence” on the 740-acre property, Pfeffer discovered that the mining plan, or 220-acre portion, had been leased to Owl Properties, Inc., commonly known as Owl Rock. Pursuant to the terms of the lease and subsequent addendums, MFI was to receive $5,000 per month in rent on the 220-acre portion of the property through May 2014, or until mining operations commenced. In the event mining operations commenced before the lease expired in May 2014, MFI was to receive 10 percent of the gross value of the sand extracted from the property.
B. The Prior Action
The escrow on the sale of the 740 acres to Pfeffer never closed because MFI did not provide documents necessary for Pfeffer to obtain title insurance on the property. In June 1998, Pfeffer sued MFI for breach of the 1997 purchase agreement in case No. RIC314275. In the same action, MFI cross-complained against Pfeffer for breach of contract and damages.
In February 1999, Wilson Creek sued MFI in case No. RIC324134, alleging that MFI breached a “back-up agreement” to sell the 740 acres to Wilson Creek for $2.23 million in the event the sale to Pfeffer did not close. Wilson Creek took the position that MFI was obligated to sell the 740 acres to Wilson Creek, because the escrow on the sale to Pfeffer never closed.
In March 1999, MFI filed a cross-complaint against Pfeffer and Wilson Creek in case No. RIC324134. Case Nos. RIC324134 and RIC324134 were eventually consolidated.
C. The August 17, 1999, Mediation
On August 17, 1999, Pfeffer, MFI, and Wilson Creek mediated their claims in the prior action before Judge Joseph Katz. At the conclusion of the mediation, the parties and their counsel executed a handwritten settlement agreement and release of claims (the settlement agreement).
Pursuant to the terms of the settlement agreement, Pfeffer was to purchase the entire 740 acres from MFI for $2.15 million, and immediately resell the 520-acre portion of the property to Wilson Creek for $1.45 million. Escrows on the purchase and resale were to close simultaneously on October 16, 1999. Thus, on a net basis, Pfeffer was to receive the mining plan, or 220-acre portion of the property, for $700,000. The settlement agreement also provided that Wilson Creek could “step into” Pfeffer’s “position” and purchase the entire 740 acres for $2.15 million in the event Pfeffer failed to close escrow on his purchase of the 740 acres. In this event, Pfeffer’s interest in and right to purchase the entire 740 acres was to be extinguished.
In agreeing to purchase the 220-acre portion of the property, Pfeffer believed he would be acquiring MFI’s right to receive the rents and royalties payable under the lease with Owl Rock. At trial in the present action in April 2006, Pfeffer testified that, at the August 17, 1999, mediation, MFI’s then-president Anthony Lewis “looked at me, and he said, do you want the rents and royalties on the mining plan? And I said, yes, because it seemed it was a good investment.” (Italics added.) Mr. Lewis died in December 2000, several years before the present action was tried in April 2006.
Pfeffer further testified that, in his view, the $5,000 per month or $60,000 per year in rents due on the property through May 2014 was a “reasonable return” on his $700,000 investment. In addition to the rents, Pfeffer expected to receive “the royalties on the sand taken off the site” in the event mining operations commenced before May 2014. Mining operations had not yet commenced as of August 1999, but Owl Rock was in the process of building a bypass road in preparation for the mining operations.
Not more than two weeks after the August 17, 1999, mediation, Pfeffer met with representatives of Owl Rock to discuss whether they were interested in purchasing, at a discount, the royalties payable under the lease. At the meeting, Pfeffer learned for the first time that MFI had already assigned to other parties approximately 80 percent of the rents and the royalties due under the lease. This information was not available through public records, including preliminary title reports that showed the property was leased to Owl Rock.
Accordingly, Pfeffer realized that the return on his $700,000 investment for the 220 acres was going to be substantially less than what he expected it would be when he signed the settlement agreement. After discovering the assignments, Pfeffer refused to sign a typed version of the settlement agreement. Further attempts to resolve the matter were unsuccessful.
Before Pfeffer signed the settlement agreement, representatives of Owl Rock were unwilling to provide him with information concerning the rents and royalties payable under the lease.
D. Further Proceedings in the Prior Action
In May 2000, Pfeffer filed a first amended complaint in the prior action against MFI and Wilson Creek. In his amended pleading, Pfeffer sought specific performance of his March 1997 agreement with MFI to purchase the entire 740 acres. The amended complaint did not mention the August 17, 1999, mediation, nor did it allege any fraud on the part of MFI or Wilson Creek in connection with the mediation and settlement agreement.
On March 30, 2001, MFI filed a motion in the prior action to reduce the settlement agreement to a judgment pursuant to Code of Civil Procedure section 664.6. Pfeffer opposed the motion. The motion was apparently granted, although it is unclear from the record on this appeal when the motion was granted. In any event, the record shows that, on July 9, 2002, the court in the prior action signed a “Corrected Judgment” setting forth the court’s findings reducing the settlement agreement to a judgment. The corrected judgment “ordered, adjudged and decreed” that the settlement agreement was “valid, existing and binding.” (Capitalization omitted.) And, in accordance with the settlement agreement, the corrected judgment ordered that Wilson Creek could step into Pfeffer’s position and purchase the 740 acres for $2.15 million in the event Pfeffer failed to close escrow on the purchase of the 740 acres.
Code of Civil Procedure section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
On July 19, 2002, MFI filed and served a “Notice of Entry” of the “Corrected Judgment” on Pfeffer and Wilson Creek.
In October 2003, Wilson Creek filed a motion to enforce the settlement agreement and corrected judgment. In January 2004, and over Pfeffer’s opposition, the court granted the motion and issued an order extinguishing any right Pfeffer had to purchase any portion of the 740 acres. The court expressly found that Pfeffer failed to “comply in good faith with any portion of the Settlement Agreement and Correct[ed] Judgment within the time periods prescribed therein,” and Wilson Creek had shown it “made a good faith effort to comply with the terms of the Settlement Agreement and Corrected Judgment.”
Pfeffer did not appeal the judgment in the prior action. Nor did he appeal the subsequent order extinguishing his interest in the 740 acres. At trial in the present action, it was undisputed that MFI sold the 740 acres to Wilson Creek for $2.15 million. Thereafter, in July 2005, MFI and Wilson Creek dismissed their claims in the prior consolidated action against all parties with prejudice.
E. The Present Action (RIC362156)
On August 3, 2001, nearly two years after the settlement agreement was signed on August 17, 1999, but before judgment was entered in the prior action on July 9, 2002, Pfeffer filed the present action in case No. RIC362156 against MFI and Wilson Creek. Pfeffer alleged that MFI and Wilson Creek made fraudulent misrepresentations to Pfeffer at the August 17, 1999, mediation and fraudulently induced Pfeffer to sign the settlement agreement. Pfeffer sought (1) rescission of the settlement agreement and (2) money damages. He also sought to “reinstate” his breach of contract claim against MFI in the prior action.
On August 15, 2001, Pfeffer asserted a peremptory challenge disqualifying Judge Kaiser from presiding over the present action. (Code Civ. Proc., § 170.6.) Judge Kaiser was the judge in the prior action.
In October 2001, Pfeffer filed a first amended complaint in the present action, alleging essentially the same claims and seeking the same relief he sought in his original complaint. He later dismissed Wilson Creek from the present action, with prejudice.
Trial in the present action began on October 20, 2005. After Pfeffer was sworn as the first witness and began to testify, the trial was adjourned and the parties were directed to brief the issue of whether the (corrected) judgment in the prior action barred Pfeffer’s claims in the present action under the principles of res judicata and collateral estoppel. At a hearing on February 3, 2006, the court ruled that the corrected judgment did not bar the present action. The court said, “It is finally clarified that the issue is whether or not there is intrinsic or extrinsic fraud. If it was extrinsic fraud . . . then it would be appropriate to . . . set aside the judgment.” In addition, and although Pfeffer was seeking only to rescind the settlement agreement and not the judgment in the prior action, the trial court said it would “paint a broad brush” and construe Pfeffer’s operative complaint as seeking to set aside the judgment and the settlement agreement.
When trial resumed on April 3, 2006, Pfeffer advised the court he was no longer seeking to rescind the settlement agreement or set aside the judgment in the prior action. Instead, he said he was only pursuing his claim for $700,000 in money damages based on the extrinsic fraud perpetrated in connection with the settlement agreement in the prior action. The trial proceeded solely on Pfeffer’s claim for money damages based on extrinsic fraud.
Following the close of evidence, the court issued a tentative decision that became its final decision. The court concluded that: (1) under Code of Civil Procedure section 307, it had jurisdiction to award monetary damages for the extrinsic fraud and was not limited to awarding equitable relief in the form of relief from the settlement agreement or judgment in the prior action; (2) Pfeffer proved that the settlement agreement was obtained by extrinsic fraud on the part of MFI; and (3) Pfeffer was entitled to $700,000 in money damages—the difference between the $2.15 million Pfeffer agreed to pay MFI for the 740 acres and the $2.85 million that Perricone agreed to pay Pfeffer for the 740 acres.
On July 14, 2006, the trial court entered judgment in favor of Pfeffer and against MFI in the principal amount of $700,000. MFI’s motion to vacate the judgment and motion for new trial were denied. MFI filed a notice of appeal from the judgment on December 11, 2006.
V. DISCUSSION
A. On This Record, MFI’s Notice of Appeal Was Timely Filed
As a preliminary matter, we address the timeliness of MFI’s appeal. Pfeffer claims MFI’s notice of appeal was not timely filed and its appeal must therefore be dismissed. We reject this claim.
Subject to exceptions not applicable here, a notice of appeal is required to be filed within the time allowed under California Rules of Court, rule 8.104. The rule provides that a notice of appeal must be filed within the earlier of: (1) 60 days after the superior court clerk mails a notice of entry of judgment or a file-stamped copy of the judgment; (2) 60 days after the party appealing is served with a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment. (Rule 8.104(a).) If a notice of appeal is not filed within the applicable time period, the appellate court has no jurisdiction to hear the appeal and the appeal must be dismissed. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454.)
All further references to rules are to the California Rules of Court.
Rule 8.104(a) specifically provides that, “a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal . . . is served . . . with . . . a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment.” (Italics added.)
MFI filed its notice of appeal on December 11, 2006, 150 days after the judgment was entered on July 14, 2006. (Rule 8.104(a)(3).) Pfeffer claims the notice of appeal was untimely because it was not filed within 60 days of July 18, 2006, the date Pfeffer claims to have served MFI by mail with a file-stamped copy of the judgment. (Rule 8.104(a)(2).) We reject Pfeffer’s claim because it is unsupported by the record.
Pfeffer filed a respondent’s appendix (see rule 8.124), which includes a copy of a “proof of service” purporting to show that a file-stamped copy of the judgment was served on MFI on July 18, 2006. Based on that document, Pfeffer claims in his respondent’s brief that MFI’s notice of appeal was untimely filed and its appeal must therefore be dismissed.
In response, MFI filed a motion to strike respondent’s appendix and brief to the extent they included the proof of service and argued that the appeal was untimely. The motion was made, in part, on the ground that the purported July 18 proof of service was not in the superior court file. (Rule 8.124(g) [filing appendix constitutes representation that documents in appendix are accurate copies of documents in superior court file].)
This court denied the motion by order dated May 2, 2007. In the same order, however, we stated that we “may either disregard or take judicial notice of any documents in the respondent’s appendix which are not part of the superior court record. (Rule 8.204(e).)” We also notified the parties that, “if they want this court to consider documents which are not part of the superior court record, they should file a separate request for judicial notice as set out in California Rules of Court, rule 8.252(a).)”
MFI then filed a “Request For Clarification . . .” requesting that this court clarify whether the May 2 order meant that this court “(1) may, on its own motion, take judicial notice of any documents included in respondent’s appendix that are not part of the Superior Court record . . .; or [¶] (2) will, in the absence of a request for judicial notice, disregard any documents included in respondent’s appendix that are not part of the Superior Court record . . . .” (Italics omitted.)
In its request, MFI argues that this court is not authorized to take judicial notice of the truth of the declaration of service set forth within the proof of service. (See, e.g, Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7 [court may take judicial notice of existence of court documents but not truth of hearsay statements in court files].) MFI further claims that the July 18 proof of service is a “fabricated document”; MFI has never been served with a notice of entry of the judgment or a file-stamped copy of the judgment; that the July 18 proof of service, if authentic, was wrongly addressed because it did not contain counsel’s office suite number; and that Pfeffer should be sanctioned for including the proof of service in his respondent’s appendix and falsely representing that the document was in the superior court file.
It is unnecessary to determine whether MFI was in fact served with a file-stamped copy of the judgment on July 18, 2006. The July 18 proof of service is not in the superior court file and is therefore not properly part of respondent’s appendix or the record on this appeal. (Rule 8.124(g).) And, as MFI has pointed out, this court is not authorized to take judicial notice of the truth of the hearsay statement or declaration of service in the proof of service. (Williams v. Wraxall, supra, 33 Cal.App.4th at p. 130, fn. 7.)
We presume that the 180-day period applies, because the record on this appeal does not contain a document showing that MFI was served with a notice of entry of judgment or file-stamped copy of the judgment on July 18, 2006, or any other date, either by Pfeffer or the clerk of the superior court. (Annette F. v. Sharon S., supra, 130 Cal.App.4th at p. 1456.) The record does show, however, that MFI’s notice of appeal was filed within 180 days of July 14, 2006, the date the judgment was entered. (Rule 8.104(a)(3).) Thus, on this record, MFI’s appeal was timely filed.
B. Pfeffer’s Extrinsic Fraud Claim is Barred Because He Failed to Demonstrate a Satisfactory Excuse for Not Raising the Same Claim in the Prior Action
The gravamen of Pfeffer’s original and first amended complaints in the present action was that MFI procured the August 17, 1999, settlement agreement by extrinsic fraud. Consequently, and as the trial court recognized, Pfeffer was effectively alleging that the prior judgment—which was based entirely on the settlement agreement—was also procured by extrinsic fraud. Accordingly, and notwithstanding MFI’s claim that the trial court had no jurisdiction or authority to award money damages in the present action, the present action was in essence a direct attack on the judgment in the prior action based on extrinsic fraud. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 1, p. 507 [a separate action in equity to set aside a judgment based on extrinsic fraud or mistake is an established and permissible method of directly attacking the judgment].)
Ultimately, Pfeffer did not seek to rescind the settlement agreement or set aside the judgment in the prior action because, as the trial court said, that would have been “futile.” Indeed, it was undisputed that MFI sold the 740 acres to Wilson Creek before the time of trial in the present action. And, pursuant to the settlement agreement, the court in the prior action issued an order extinguishing any interest or right Pfeffer had to purchase any part of the 740 acres. Instead, Pfeffer asserted a claim in the present action for money damages that the extrinsic fraud allegedly caused.
It has long been settled that “[o]ne who has been prevented by extrinsic factors from presenting his case to the court may seek equitable relief from the judgment entered against him; this equitable jurisdiction to interfere with final judgments is based upon the absence of a fair, adversary trial in the original action. [Citation.]” (Humes v. MarGil Ventures, Inc. (1985) 174 Cal.App.3d 486, 499.) “Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.) Extrinsic fraud also includes a false promise of a compromise that prevents a fair submission of the controversy. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 633.)
In order to obtain relief from a judgment based on extrinsic fraud, it is not enough that the aggrieved party merely show that the prior judgment was procured by extrinsic fraud. “In order to succeed, the aggrieved party in addition must show a satisfactory excuse for not having made his claim or defense in the original action and diligence in seeking relief after discovery of the facts.” (DeMello v. Souza (1973) 36 Cal.App.3d 79, 85 and cases cited; see also Humes v. MarGil Ventures, Inc., supra, 174 Cal.App.3d at p. 499.) In other words, “[i]n demonstrating extrinsic fraud, it is insufficient for a party to come into court and simply assert that the judgment was premised upon false facts. The party must show that such facts could not reasonably have been discovered prior to the entry of judgment.” (City and County of San Francisco v. Cartagena, supra, 35 Cal.App.4th at p. 1068.)
At trial in the present action, Pfeffer did not prove that the judgment in the prior action was procured by extrinsic fraud. The gravamen of Pfeffer’s extrinsic fraud claim was that, at the August 17, 1999, mediation, MFI’s president, Anthony Lewis, misrepresented to Pfeffer the amount of rents and royalties he would receive if he purchased the mining plan. But at trial, Pfeffer testified that he discovered Mr. Lewis’s misrepresentations by the end of August 1999, when he met with representatives of Owl Rock, the lessee of the mining plan. Thus, Pfeffer knew about the alleged fraud long before judgment was entered in the prior action in July 2002. (City and County of San Francisco v. Cartagena, supra, 35 Cal.App.4th at pp. 1067-1068.)
Furthermore, Pfeffer had an opportunity to present his extrinsic fraud claim in opposition to MFI’s March 2001 motion to reduce the handwritten settlement agreement to a judgment, but he failed to do so. In opposing the motion, Pfeffer did not in any way claim that MFI had procured the settlement agreement by extrinsic fraud, or specifically by misrepresenting the amount of rents and royalties he would receive under the Owl Rock lease. Instead, Pfeffer claimed that he, MFI, and Wilson Creek had agreed to void the August 17, 1999, handwritten settlement agreement, and had subsequently failed to reach another agreement. Pfeffer also opposed the motion on the grounds the parties had failed to perform various duties, discharge various contingencies, or provide various documents that were required under the terms of the August 17, 1999, settlement agreement. For example, Pfeffer claimed that the precise location of the 220-acre mining plan had not been defined by survey, as the handwritten settlement agreement required.
In sum, because Pfeffer knew about the alleged “extrinsic fraud” well before the entry of judgment in the prior action, and because Pfeffer was not prevented from raising the alleged fraud as a defense to the entry of judgment based on the settlement agreement, Pfeffer failed to prove that the prior judgment was obtained by extrinsic fraud.
VI. DISPOSITION
The judgment awarding Pfeffer the principal sum of $700,000 is reversed. The parties shall bear their respective costs on appeal.
We concur: Ramirez P.J., McKinster J.