Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and postjudgment orders of the Superior Court of Los Angeles County. Mel Red Recana, Judge, Los Angeles County Super. Ct. No. BC321723.
Dempsey & Johnson, Michael D. Dempsey and Arlene M. Turinchak, for Plaintiff and Appellant.
Alschuler Grossman, Bruce A. Friedman and David B. Dreyfus, for Defendants and Respondents.
COOPER, P. J.
In litigation against his former law partner, Sheldon Rubin appeals from the judgment and several postjudgment orders. His principal contentions are the trial court erred in finding that he was not entitled to indemnity and in awarding attorneys fees to his former partner. We find no error and affirm the judgment and the postjudgment orders.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2002, appellant Rubin and respondent Laurence Jacobson were partners in the practice of law. Their firm was named Rubin, Jacobson & Kane LLP (RJK). The partnership agreement provided in part: “The principal purpose of the Partnership shall be to engage in the general practice of law and matters related and incidental to such practice under the laws of the State of California and the rules and regulations of the State Bar of California.” “It is understood that REPC [Rubin & Eagen PC] shall be solely responsible for all costs and expenses relating to contingency fee matters.”
The partnership agreement further provided: “Kevin Kane shall be a non-equity, non-voting partner on the terms set forth in Exhibit ‘B’ attached hereto and incorporated by this reference.” Exhibit B provides in part “KK’s [Kevin Kane’s] participation in contingency fee matters shall be paid from the 100% of contingency fee recoveries paid to REPC as per Sections 5.3.3.4 of the Partnership Agreement. The amount of such participation by KK shall be as per a separate agreement between KK and REPC. REPC shall hold the Partnership, LHJ [Laurence H. Jacobson] and LHJPC [Laurence H. Jacobson PC] harmless from any claim by KK as to contingency fee income due KK from the Partnership.”
The agreement also contained the following attorney fee provision: “In the event of a dispute between the parties hereto or their representatives or assigns relating to this Partnership Agreement, the prevailing party shall be entitled to recover actual attorneys’ fees and costs, including but not limited to, those incurred in connection with any and all arbitration proceedings, judicial references, trials, and appeals.”
The agreement was signed by Jacobson as President of the Lawrence H. Jacobson Professional Corporation and by Sheldon Rubin as President of Rubin and Eagan, a Professional Corporation.
Underlying Litigation
On August 26, 2003, Rubin sued Kane for conversion, unjust enrichment, money had and received, common count, breach of fiduciary duty, elder abuse, imposition of a constructive trust, and declaratory relief. The complaint alleged, among other things, “Plaintiff is informed and believes and thereon alleges that on or about July 30, 2003, Kane unilaterally opened a bank account in the name of ‘Rubin Jacobson & Kane’ at First Republic Bank and deposited the $600,000 check into said account. Kane did not comply with the appropriate State Bar procedures for opening a ‘client trust account’, and had no authorization from Rubin Jacobson & Kane or its partners to open the account. In fact, the new bank account was opened by Kane using unlawfully obtained confidential and private information concerning Rubin, and through misrepresentations by Kane to First Republic Bank.” “Despite repeated demand by Plaintiff, Kane has failed and refused to return or release the $600,000 to the legitimate Rubin Jacobson & Kane trust account at First Republic Bank, although Kane is not entitled to the proceeds of the $600,000 check.” There is no dispute that the $600,000 check was from a contingency fee case.
Prior to the initiation of the lawsuit, on August 8, 2003, Jacobson wrote Rubin and Kane stating “I have no interest in or right to participate in any of the legal fees in this matter. . . . [¶] My sole concern is that the clients receive their fees as soon as the check clears (since it is my understanding that it has now cleared, it is incumbent on us to do this as soon as possible) . . . .”
Kane cross-complained for breach of fiduciary duty, constructive fraud, conversion, reasonable value of services, unjust enrichment, money had and received, imposition of constructive trust, dissolution of partnerships and accounting, and declaratory relief. The cross-complaint named as defendants Jacobson and RJK in addition to Rubin, Rubin Eagan & Kane and Rubin & Eagen.
Scott Spolin and C. Brent Parker, attorneys at the law firm Spolin, Silverman, Cohen & Bartlett, LLP [Spolin firm], initially represented Rubin in the litigation against Kane. When Jacobson was named in Kane’s cross-complaint, the same attorneys also represented Jacobson. During the course of the litigation, Rubin and Jacobson sought and received a temporary restraining order preventing Kane from entering the law offices and communicating with Rubin or Jacobson, their wives, and secretaries.
Kane and Rubin signed an arbitration agreement, which provided as of November 12, 2003, Kane shall dismiss with prejudice his cross complaint, with respect to Jacobson. Kane, Rubin, RJK and RE shall participate in binding arbitration before the Honorable Julius Title, retired. They agreed that all claims in the complaint and cross-complaint would be decided by the arbitrator and the arbitrator shall award reasonable attorneys fees to the prevailing party. Kane dismissed Jacobson and LHJPC from the action.
Retired Judge Title issued an interim arbitration award. He concluded that Kane’s actions in taking possession of the $600,000 settlement check were “unauthorized and improper and that as result of such action it was reasonable and necessary for Rubin to file the Superior court action. . . .” The arbitrator found Rubin, REK and RJK to be the prevailing parties.
The arbitrator issued a supplemental arbitration award regarding attorneys fees. It provided in part: “It is apparent that Plaintiffs’ request for attorneys fees of some $148,000 and costs of some $13,000 is extraordinary, given all of the facts of this dispute. There is no question but that the services rendered by Plaintiffs’ counsel [Spolin firm] were competently and professionally performed, and that as between Plaintiffs and their counsel, Plaintiff’s counsel is entitled to be paid by Plaintiffs whatever fees and costs are due pursuant to their fee agreement, which presumably are the amounts billed to Plaintiffs. This is a different question, however, from what Plaintiffs are entitled to by way of reasonable fees and costs from Defendant [Kane] in this litigation. Defendant is not a party to the fee agreement between Plaintiffs and their counsel, is not bound thereby, and the standard for such payment is not the fee agreement between Plaintiffs and their counsel but rather is what a reasonable fee should be under the facts and circumstances of this matter.” The arbitrator concluded that Plaintiffs are entitled to an award of fees in the amount of $60,000.
Current Litigation
On September 2, 2004, Spolin sued Rubin for breach of contract, common count, and account stated. The basis of each cause of action was alleged unpaid fees from the Kane litigation in the amount of $41,667. Rubin cross-complained against the Spolin firm, Spolin, RJK, and Jacobson. Rubin alleged that the Spolin firm overcharged him. Rubin estimated that he was overcharged in an approximate amount of $60,000. He sought equitable indemnity and contribution from Jacobson, naming Jacobson as an individual.
The trial court concluded that it was being asked to repeat the same analysis conducted by Judge Title. Therefore, it awarded Rubin $53,375, the amount of money Rubin paid over that which Judge Title found to be reasonable. The court found insufficient evidence to support Rubin’s causes of action for breach of fiduciary duty, fraud, and constructive fraud. The court also found that Rubin “contracted to hold Jacobson harmless for all contingency fee dispute cases with Kane. The other legal matters rose from the contingency fee dispute between Rubin and Kane.”
Rubin appealed from the judgment denying him equitable indemnity and contribution from Jacobson.
Postjudgment Proceedings
Jacobson sought and obtained attorneys fees in the amount of $51,650. The court also found that Jacobson improperly filed a lien without having obtained a money judgment. Rubin appealed from the order awarding Jacobson attorneys fees.
Rubin then sought attorneys fees against Jacobson in the amount of $14,465. The court denied the motion. The court also denied Rubin’s motion to extinguish Jacobson’s second lien. Rubin appealed from the order denying his motion for attorneys fees and denying his motion to extinguish Jacobson’s second lien.
Rubin also appealed from another postjudgment order finding that interest on the Spolin judgment had ceased accruing and that Rubin could not execute on the judgment and a separate order allowing Spolin and the Spolin firm to deposit funds with the court.
DISCUSSION
I. Substantial Evidence Supports the Finding that Rubin Agreed to Indemnify Jacobson
Rubin argues, as a matter of law, there was no oral contract to indemnify Jacobson. The essential elements of a contract are as follows: “1. Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A sufficient cause or consideration.” (Civil Code § 1550.) Rubin appears to challenge the second element – consent. He argues that his testimony shows he did not intend to reach an agreement.
While Rubin correctly describes his own testimony and the Spolin engagement letter, he ignores the substantial contradictory testimony in the record. There was extensive evidence that Rubin promised to indemnify Jacobson. Jacobson testified Rubin “with frequency would apologize that I got dragged into a situation that I had no involvement whatsoever. And he assured me he would pay the legal fees. At one point, I asked to get something in writing, and he was very reluctant to get something in writing. But since he was paying the bills and not asking me for anything, and making it clear I was going to have no cost or expense, I didn’t push it.” Jacobson testified that he wanted nothing to do with the $600,000 check and considered resigning from the firm but “[t]hen Shelly [Rubin] agreed to indemnify me and the client got their money.” Jacobson acknowledged that there was nothing in the engagement letters from the Spolin firm that “reflects his [Rubin’s] express promise to me and his express agreement under the Partnership Agreement . . . .” Jacobson further testified, “I was promised and assured it would be [defended] at no cost to me. Had I been told it was going to be at my own cost, I would have retained my [] own lawyer and withdrawn from the firm immediately.”
Spolin’s testimony supports Jacobson’s version. Spolin testified Rubin told him that Jacobson was not responsible for the bills. In addition, on at least three other occasions, Rubin expressly told Spolin that the fee obligation was solely his. Spolin further testified that Rubin “indicated that the dispute between he and Mr. Kane had to do with a matter in which he and Mr. Kane were partners, not Mr. Jacobson, and that he was retaining the lawyer, and he would be bearing the fees.” Rubin’s conduct further supports the finding that he agreed to indemnify Jacobson. During the time the Kane litigation was pending, Rubin never asked Jacobson to pay any of the fees.
The trial court obviously credited Jacobson’s and Spolin’s testimony and rejected Rubin’s testimony. “Evidence of even one credible witness ‘is sufficient for proof of any fact.’ (Evid. Code, § 411.)” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334.) And “ ‘questions as to the weight and sufficiency of the evidence, the construction to be put upon it, the inferences to be drawn therefrom, the credibility of witnesses . . . and the determination of [any] conflicts and inconsistencies in their testimony are matters for the trial court to resolve.’ ” (Ibid.)
Civil Code sections 1625 and 1639 do not require a different result as Rubin argues. Section 1625 provides: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Section 1639 provides: “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; . . .” The written partnership agreement is not inconsistent with the finding of an oral agreement that Rubin pay Jacobson’s legal fees. The partnership agreement states that “[i]t is understood that REPC shall be solely responsible for all costs and expenses relating to contingency fee matters.” It also states that “REPC shall hold the Partnership, LHJ and LHJPC harmless from any claim by KK as to contingency fee income due KK from the Partnership.” The core allegation in the litigation against Kane concerned the incorrect deposit of a check for a contingency fee. Even though the litigation escalated beyond this core allegation, Rubin does not show that a broad interpretation of the indemnity provision was inconsistent with the parties’ intent, especially where Jacobson was dismissed from the litigation before the claims were tried to the arbitrator. (See Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 59 [An indemnity agreement is to be interpreted according to the language of the contract as well as the intention of the parties as indicated by the contract].)
Rubin relies heavily on Steven R. Perles, P.C. v. Kagy (D.C. Cir. 2007) 473 F.3d 1244, a seventh circuit case in which the court, applying District of Columbia law, found two attorneys had not reached an oral agreement regarding the payment of a contingency fee award. In that case, there was no intention to be bound and no agreement on the essential terms. Among other things, the court relied on the fact that the parties had contemplated a written agreement but never executed one. (Id. at p. 1250.) The court cited the following proposition, “ ‘[t]he fact that the parties contemplate the execution of a document is some evidence, not in itself conclusive, that they intend not to be bound until it is executed.’ ” (Ibid.) Here, as described above, there was ample evidence that Rubin intended to be bound even though the parties never reduced the agreement into writing. The trial court was not compelled to credit Rubin’s version of the facts. Even assuming that California law is the same as that of the District of Columbia, the undisputed fact that Jacobson asked Rubin for a writing is not conclusive evidence of Rubin’s intent and here, substantial evidence supports the court’s determination of an oral agreement.
Therefore we need not consider Rubin’s challenges to other basis for finding he agreed to indemnify Jacobson.
II. Attorneys fees
A. Jacobson’s Fees
i. Entitlement to Fees
Rubin argues that the court should not have awarded Jacobson attorneys fees because the partnership agreement did not provide for such an award and because he is not a signatory to the partnership agreement. Rubin signed the agreement on behalf of Rubin and Eagen, a professional corporation, but did not sign it individually. Jacobson signed the agreement on behalf of his professional corporation, but also did not sign it individually.
The partnership agreement provides in pertinent part: “In the event of a dispute between the parties hereto or their representatives or assigns relating to this Partnership Agreement, the prevailing party shall be entitled to recover actual attorneys’ fees and costs, including, but not limited to, those incurred in connection with any and all arbitration proceedings, judicial references, trials and appeals.” The agreement further provides “REPC [Rubin & Eagan] shall hold the Partnership, LHJ [Jacobson] and LHJPC [Jacobson’s professional corporation] harmless from any claim by [Kane] as to contingency fee income due [Kane] from the Partnership.
Jacobson argues that under the italicized language, even though he is not personally a signatory to the partnership agreement, he is entitled to attorneys fees. We agree. The broadly worded attorney fee provision appears to cover the representatives of Jacobson’s professional corporation in addition to the professional corporation. In his reply brief, Rubin argues that a representative is only a receiver or trustee, but he offers no legal or factual basis to support this statement. Thus, even though there is a meaningful distinction between an individual and a corporation (Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990), the language of the attorney fee provision extends beyond the signatories to the contract to include the representatives of the signatories to the contract.
Rubin makes much of the fact that Jacobson drafted the partnership agreement. However, the partnership agreement provides: “This Partnership Agreement is to be deemed to have been prepared jointly by the parties hereto and if any inconsistencies exist herein it shall not be interpreted or construed against any party as the draftor.”
None of the cases Rubin cites contains a similar broad attorney fee provision and therefore they are not helpful in interpreting the attorney fee provision at issue in this case. For example, Rubin relies on Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671. In that case, an attorneys fees provision allowed “ ‘either party to enforce the provisions of this Agreement.’ ” (Id. at p. 681.) The court, relying on this language, found that “ ‘[E]ither’ refers only to the two parties to the contract. . . . Moreover, the word ‘party’ limits recovery of attorneys fees to a ‘party’ to the contract. . . .” (Ibid.) In contrast here, as discussed above, the partnership agreement contained an expansive attorneys fees provision. It did not apply only to either party.
Nor did the court err in finding that the litigation concerned a dispute “relating to this Partnership Agreement.” The litigation for which Rubin sought contribution from Jacobson principally concerned a $600,000 check, which Rubin alleged Kane improperly converted. The subsequent litigation initiated by the Spolin firm was derivative, involving a dispute regarding the fees generated in the original litigation.
ii. Arbitration
Rubin argues that the issue should have been arbitrated because the partnership agreement contains an arbitration provision and other disputes between the parties were pending in arbitration. We need not decide whether arbitration was a required forum where the litigation began with Spolin’s complaint. Even if a motion to compel arbitration should have been granted, none was made.
Jacobson is not estopped from relying on the partnership agreement in the present litigation to support his claim for attorneys fees. “ ‘Equitable estoppel precludes a party from asserting rights “he otherwise would have had against another” when his own conduct renders assertion of those rights contrary to equity.’ ” (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713.) Because Rubin forced Jacobson into court, there is no indication that Jacobson was honoring his commitment to arbitrate only when it was advantageous to him.
In Acosta v. Kerrigan (2007) 150 Cal.App.4th 1124, 1131, the appellate court held that the court had jurisdiction to award fees in connection with a petition to compel arbitration because the “request for attorneys fees is so closely related to the hearing and decision of the petition to compel as to be reasonably considered an integral part of that proceeding . . . .” (Id. at p. 1131.) Here, the court heard the case in a court trial and the award of attorneys fees was part of that case. Although Rubin states he never alleged any breach of the partnership agreement, Rubin was not surprised by Jacobson’s invocation of the partnership agreement as it was the basis of Jacobson’s second affirmative defense. Therefore, Rubin had notice of Jacobson’s intent to rely on the partnership agreement at the beginning of this litigation.
iii. Fraud in the inducement
During trial, Rubin’s counsel sought to ask Jacobson the following question: “When you and Mr. Rubin entered into the partnership Rubin, Jacobson, and Kane, did you make any disclosure to him about your physical or psychological condition?” Jacobson’s counsel objected because the “allegations are not in this case.” Jacobson’s counsel argued that Rubin should have amended his cross-complaint to rescind the partnership agreement if he intended to argue that the partnership agreement was the result of fraud. The court sustained Jacobson’s objection.
The trial court correctly sustained Jacobson’s objection. Evidence of fraud in the inducement was not relevant to any issue raised in the pleadings. No tort action for fraud was alleged even after Jacobson filed his answer containing the following affirmative defense: “Cross-Complainant’s claim for indemnity and declaratory relief are barred by the terms of the Partnership Agreement of Rubin, Jacobson & Kane, LLP.” There is evidence in the record that in a separate lawsuit filed in 2005, Rubin sued Jacobson for fraud. Those allegations, however, were not made a part of the litigation in this case.
B. Rubin’s Attorneys fees
Rubin also appealed from the order denying his motion for attorneys fees. The order denying Rubin attorneys fees was appropriate. Rubin argues that if the court awarded Jacobson fees it also was required to award him fees for opposing Jacobson’s first lien, which the court found to be improperly filed.
Rubin cites Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057 and Brennan v. Tremco, Inc. (2001) 25 Cal.4th 310, 314-315, for the proposition that he is entitled to attorneys fees for opposing Jacobson’s first lien. The issue in Brennan was “whether a person may sue for the malicious prosecution of an action that the parties resolved through contractual arbitration.” (Brennan, supra, 25 Cal.4th at p. 312.) In considering this issue the court explained: “ ‘[T]he most promising remedy for excessive litigation does not lie in an expansion of malicious prosecution liability . . . . [I]n our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself . . . .” (Id. at p. 314-315.) Here, however, the court did not find that Jacobson’s filing of the first lien was either frivolous or for the purpose of delay.
In Rusheen v. Cohen, supra, 37 Cal.4th 1048, our high court held that the litigation privilege extended to noncommunicative acts such as levying on property where the cause of action is based on a communicative act. (Id. at p. 1052.) The court reasoned, similarly to its reasoning in Brennan, that “modern public policy seeks to encourage free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation–related misconduct and by favoring sanctions within the original lawsuit.” (Id. at p. 1063.) This policy does not show that Rubin was entitled to sanctions in the present case. Although the trial court found the first lien to be improper, the court did not find that Jacobson engaged in misconduct or that sanctions were warranted. As the trial court found, Rubin cites no authority for the proposition that he is entitled to fees based on Jacobson’s postjudgment conduct, especially where the court found the second lien to be properly filed.
III. Rubin Has Not Demonstrated any Error in the Trial Court’s Other Postjudgment Orders
A. Accrual of Interest
On February 2, 2006, the court issued the following order: “Interest on this Court’s January 3, 2006 Judgment (‘Judgment’) in favor of Defendant and Cross-Complainant Sheldon Rubin and against Plaintiff and Cross Defendant Spolin Silverman & Cohen and against Cross-Defendant Scott J. Spolin (cumulatively ‘Spolin Silverman’) stopped accruing upon the Feb. 2nd, 2006 tender by Spolin Silverman of an offer to provide a cashier’s check to co-payees, Sheldon Rubin and Lawrence Jacobson in satisfaction of the Judgment or until hearing on motion for atty fees set for 3/14/06. [¶] In view of Spolin Silverman’s Feb. 2nd, 2006 tender, no party shall have the right to execute on the Judgment against Spolin Silverman’s assets.
Rubin filed a notice of appeal from this order. However, he makes no argument in his opening brief identifying any error in this order. Therefore, he has abandoned any claim of error based on this order. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)
B. Spolin Deposit
In an order dated April 27, 2006, the court ordered as follows: “1. Cross-Defendants Spolin Silverman Cohen & Bartlett LLP and Scott J. Spolin (collectively ‘Spolin Silverman’) shall deposit with the Court the principal sum of $62,862.83 plus interest at the rate of ten percent (10%) per annum from January 3, 2006 to February 1, 2006 and from March 20, 2006 to the date of deposit. [¶] 2. Said deposit shall constitute full satisfaction of the Judgment entered January 3, 2006 in the above-entitled case (the ‘Judgment’), pursuant to California Code of Civil Procedure Section 685.030(d)(2). [¶] 3. Pursuant to California Code of Civil Procedure Section 685.030(b), upon said deposit interest shall cease to accrue on the Judgment as to plaintiff Spolin. [¶] 4. The deposited funds shall remain on deposit with the Court until further Order of Court.”
Rubin argues the trial court should not have allowed Spolin to deposit the judgment with the court. According to him, “[t]he trial court is not authorized by the legislature to relieve Spolin of paying the judgment and of paying interest on the judgment other than by making payment to Rubin.” The sole authority Rubin cites in support of this argument is Code of Civil Procedure section 685.030, subdivision (d)(2). Section 685.030, subdivision (b) provides: “If a money judgment is satisfied in full other than pursuant to a writ under this title, interest ceases to accrue on the date the judgment is satisfied in full.” Section 685.030, subdivision (d) provides: “For the purposes of subdivision (b) and (c), the date a money judgment is satisfied in full or in part is the earliest of the following times: [¶] (1) The date satisfaction is actually received by the judgment creditor. [¶] (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor. [¶] (3) The date of any other performance that has the effect of satisfaction.”
The plain language of the statute contradicts Rubin’s argument. The statute creates multiple means for satisfaction of the judgment. It does not solely require Spolin to pay Rubin as Rubin argues. One of the methods allowed under this statute is for the money to be deposited in the court. Rubin has not shown any error with this procedure.
Rubin also argues that it was Jacobson’s improper notice of lien that caused this procedure which was detrimental to Rubin because Rubin did not immediately receive the funds. However, this argument is not persuasive because even though Jacobson’s first notice of lien was found to be improper, his second notice was found to be proper, and the court did not err in awarding Jacobson attorneys fees.
C. Jacobson’s Second Lien
The trial court found Jacobson’s second lien to be properly filed. It denied Rubin’s motion to extinguish a lien. Rubin argues that it was extinguished when he perfected his appeal. Code of Civil Procedure section 697.040 provides in part: “(a) If enforcement of the judgment is stayed on appeal by the giving of a sufficient undertaking under Chapter 2 (commencing with Section 916) of Title 13: [¶] (1) Existing liens created under this division are extinguished. [¶] (2) New liens may not be created under this division during the period of the stay.” This statute applies where a sufficient undertaking is made. Rubin provides no evidence of such undertaking in that case. Therefore, he does not show that section 697.040 is applicable to this case. (See Crevolin v. Crevolin (1963) 217 Cal.App.2d 565, 575 [where no evidence in record of when bond on appeal filed, no error in denying motion to extinguish lien].)
DISPOSITION
The judgment is affirmed. The February 2, 2006 order, March 20, 2006 order, April 27, 2006 order, and June 22, 2006 order are all affirmed. Jacobson is entitled to costs on appeal.
We concur: RUBIN, J., FLIER, J.